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The Constitution challenged: beyond the acts of March 15

On February 25 it was reported that president Jair Bolsonaro shared a video in which he summoned the people to acts to be carried out on March 15 of this year, whose agenda, among others, includes manifestations contrary to the independence of the brazilian Parliament and brazilian Supreme Court (STF).

The call was made by a video in which Jair Bolsonaro image is associated with a messiah that put his own life in defense of part of the brazilian society against the “corrupt and bloodthirsty left”. For this reason, the “brazilian family” would need to show their strength on the streets of the country on March 15 in support of the president and against the so-called “enemies of Brazil”. The call was reinforced in a presidential speech in the United States and added to an attack on the election of 2018 that elected him.

An announcement of Jair Bolsonaro intentions with this video may have been made a few days earlier by General Augusto Heleno, the current minister of the Institutional Security Office, who, in an audio leaked by the press, said that the government was being blackmailed by the Parliament, which is why it would be necessary to take action, whatever it was.

As expected, the President conduct was condemned. The President of the House of Representatives, Rodrigo Maia, and the President of the Senate, Davi Alcolumbre, expressed their opposition to the content of the video shared by the President of the Republic. The Court’s Chief Justice, Dias Toffoli, and the Court’s Dean Justice, Celso de Mello, also positioned themselves in this exact direction. The latter even went so far as to support the possibility of an impeachment of Jair Bolsonaro.

An attack on the institutions of the Republic and on the regime of democratic freedoms like this does not seem to raise suspicions regarding the possibility of an impeachment process against Jair Bolsonaro.

But, in addition to this debate, which now focuses much more on the appropriate moment to open an impeachment process against the President than on the configuration, or not, of an impeachable offense committed by him, another movement of the government draws attention: the effort around the approval of the “reforms” sent by government economic team, led by Minister Paulo Guedes, to the Parliament.

On the occasion, Paulo Guedes presented a detailed schedule for approving the changes. In his words, “we only have 15 weeks to change Brazil”. Movements contrary to Guedes’ proposals were not invited to participate in the meeting that took place at the home of the Special Secretary of privatization, divestitures and markets, Salim Mattar. This place is somewhat indicative of the government’s intentions with such reforms.

However, the intention is not new. In his first interview in office, Paulo Guedes had already announced that alongside the pension reform, apparently the main agenda of the Jair Bolsonaro government’s economic portfolio, there was another front of action: a broader reform to change the federative pact, end mandatory expenses and budgetary ties and modify the tax system.

Even the Constitution could not stop the reformist agenda of the government: it would be enough to present and enact proposals to amend the Constitution that the problems would be solved. So simple. No concern about the substantive limits to the amendment power. The alliance between “liberals” and “conservatives” formed by the 2018 elections appeared to be sufficient justification to overcome such obstacles.

In that light, President Jair Bolsonaro sent to the Senate the proposals to amend the Constitution no. 186, no. 187 and no. 188 of 2019, as measures capable of promoting the “change in Brazil” announced by Paulo Guedes. These measures are intended to rebalance the country’s public accounts, on the grounds of the need to rationalize spending and inter-generational fiscal balance.

The proposals to amend the Constitution expressly assume the need to reassess the commitments made by the Constitution. Therefore, the debate on the effects of the commitments made by the generations of the past on the generation of the present and the repercussion of the commitments assumed by the generation of the present on future generations is on the agenda. A dispute about what was, is and will still be constituted by the constituent project inaugurated in 1988, therefore.

Based on citizenship, human dignity and political pluralism (article 1, items II, III and V, of the Constitution), this constitutional project is committed to the construction of a free, just and solidary society, where national development must be accompanied by the eradication of poverty and marginalization, the reduction of social and regional inequalities and the promotion of the well-being of all, without prejudice of origin, race, sex, color, age and any other forms of discrimination ( article 3, items I, II, III, and IV, of the  Constitution).

It is against this normative core that the proposals to amend the Constitution sent by the government are directed. The generation of financial surpluses to reduce public debt now appears to be an alternative protection nucleus for the Constitution. A process that comes from constitutional amendment no. 95/2016, as the justification for the proposed amendment to Constitution no. 186/2019 demonstrates.

These constitutional amendment proposals aim to transform the commitments made by this constituent project into an obstacle to national development, which is why they should be abandoned. As a condition of possibility for the resizing of the rights and political institutions of the Brazilian State, these commitments are being transformed into impediments to it.

Instead of financing social programs to promote the social well-being and justice, objectives of the social order instituted by the Constitution (article 193), the intention is to raise the payment of the public debt to the condition of an alternative normative nucleus of identity of the constitutional project. As if by magic, by a pen, the social state would be transformed into a minimal state.

Comparative Constitutional Law points out that it has become increasingly common to use constitutional amendments to significantly alter established constitutional orders, demonstrating that the issue is not a Brazilian singularity.

David Landau, for example, claims that political actors uncommitted to “democratic values” are resorting to constitutional amendments as a means of making a state less “democratic” than it was before. It is what the author calls abusive constitutionalism.

In turn, Richard Albert introduces the concept of constitutional dismemberment to refer to constitutional amendments that alter the fundamental rights guaranteed by a constitution, the structure of the constituted powers and the identity of a constituent project.

As a background, once again, is the dilemma of stability and change in Constitutional Law and, ultimately, the link of present and future generations to the commitments made by past generations. It is not being said that the Constitution does not deserve repairs and that it cannot receive them. Nor does the Constitution allow any changes to its text.

An entirely immutable constitution, in addition to being undemocratic, since it would make it impossible for future generations to decide on their own destiny, would not stand the test of time, as it was unable to meet the demands and needs of future generations. On the other hand, a constitution whose process of amendment is greatly facilitated would be at the mercy of the occasional majorities, thus losing it ability to secure rights against the onslaught of economic, political and social forces.

Now, more than ever, in addition to the usual speech of attack on the institutions of the Republic and on the democratic freedoms by the President, it is necessary pay attention to the movements already placed on the agenda against the bases of the economic, financial and social orders of the Constitution.

By Almir Megali Neto [1]

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  1. For a critique of constitutional amendment no 95/2016, Cf. CATTONI DE OLIVEIRA, Marcelo Andrade de. Breves considerações iniciais sobre a PEC n. 241 (“Novo Regime Fiscal”): o estado de exceção econômico e a subversão da Constituição democrática de 1988.  In. BAHIA, Alexandre Melo Franco; NUNES, Dierle; BACHA E SILVA, Diogo; CATTONI DE OLIVEIRA, Marcelo Andrade. Controle jurisdicional do devido processo legislativo: história e Teoria Constitucional brasileira. Belo Horizonte: Conhecimento Livraria e Editora, 2018, p. 83-88.
  2. About abusive constitutionalism, Cf. LANDAU, David. Abusive constitutionalism. In. University of California Davis Law Review, 2013, p. 189-260.
  3. About constitutional dismemberment, Cf. ALBERT, Richard. Constitutional Amendment and Dismemberment. In. Yale Law Journal, V. 43, n. 01, 2018, p. 01-84.

[1] Master in Law from the Federal University of Minas Gerais. I am grateful to professor Marcelo Andrade Cattoni de Oliveira for helpful discussions.

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