The Brazilian Supreme Court (STF) has enlarged the competence for judicial review of constitutional amendments by recognizing that also constitutional amendment proposals can be challenged before the court because the Brazilian Constitution states that: Amendment proposals that tend to abolish unamendable clauses will not be object of deliberation. For the court, parliamentarians have the right to prevent the approval of a constitutional amendment proposal that could abolish the unamendable clauses and they can claim for that right before the STF. In this research, I depart from the content analysis of the cases decided by the STF exclusively on judicial review of proposed amendments. From these data, I demonstrate how the court understand its competence on that matter and how the decisions may represent a strong judicial interference or a deference to the legislative process.
Brazil has experienced a process of constitutional denaturation, a movement of disfiguration of the basis of democratic constitutionalism. The impeachment of President Dilma Rousseff opened place to several neoliberal reforms. The Congress approved unconstitutional constitutional amendments such as the imposition of the Public Expenditure Ceiling and the Pension Reform, in addition to the Labor Reform, which directly impacts the protection of the social labor law established by art. 7 of the Constitution, in a process of deconstitutionalization. The hypothesis is that these constitutional changes, both formal and informal, generate the denaturation of the Constitution. The choice for the expression “denaturation” occurs because there is a breakdown of democratic assumptions, supposedly consolidated since 1988, a movement parallel to the changes in relation to social rights. Therefore, the Constitution, from 2016 onwards, takes on an increasingly less social and less democratic support.
The doctrine of “unconstitutional constitutional amendments” has obtained a growing acceptance by distinct constitutional courts across the world and been largely studied in comparative constitutional law. The constitutional literature has basically concentrated on the courts’ behavior and their decision-making. But what about parliaments? Sometimes depicted as the villains in cases of potential violation of an explicit or implicit constitutional amendment, they may nonetheless behave as an important first shield against such proposals for constitutional amendments, even if not successful in the end. Drawing from the Latin American experience and theories of political behavior, this paper adresses the role of parliamentary oversight organs and their internal political debates and decisions as another fundamental, though overlooked, institution in the protection of constitution.