This papers purpose is to offer a first approach on the power of the Peruvian Constitutional Court (PCC) to declare the unconstitutionality of a Constitutional Amendment. In its ruling 008-2018-AI/TC, the PCC developed its competence to revise the constitutionality of constitutional amendments. This paper aims to analyze whether the reasons offered by the PCC in this ruling to justify its “amendment control power” are sufficient. It will answer the next questions. Firstly, whether the Peruvian Constitution grants an explicit or implicit mandate to the Court to evaluate the constitutionality of constitutional reforms. Secondly, whether the PCC has the same power to evaluate the constitutionality of the amendments proceeding from Legislature or referenda processes. Finally, to draw the limits to this kind of constitutional control and to sketch a possible test to evaluate the constitutionality of constitutional amendments.
The hypothesis of the present work is that the most recent transformation processes suffered by the Brazilian Constitution are closely related to the ending of democratic political cycle and the opening of a new cycle – which features are still unknown. In order to explain the political cycles’ functioning, the work uses the the three moments theory of the relationship between the people and their constitution, created by Schmitt, and the theory of the populism’s chain of equivalence, developed by Laclau. In the Brazilian case, the ending of the previous political cycle will be related to the exercise of what the specialized literature has called “abusive constitutionalism”, a concept used to describe moments in which the political class uses democratic constitutional instruments to make the constitution less democratic. The result of the constant appeal to abusive constitutionalism is a “constitutional dismemberment”, causing the downfall of the 1988 Constitution’s foundations.
Abusive constitutionalism is a phenomenon observed especially in Latin America, in which constitutional methods designed to increase popular participation in democracies are misused by authoritarian governments to disrupt democracy itself. The Brazilian election of 2018 is in debate, since Jair Bolsonaro’s Party (PSL) was accused of tampering with the electoral gender quota. Brazilian law dictates that a minimum of 30% of Legislative candidatures should be reserved for female candidates in each Party – in addition, 30% of public funds for campaigns shall be destined to female campaigns. PSL’s scheme involved submitting fake female candidacies with the intent of taking money destined to women’s campaigns in a fraudulent way, therefore embezzling the Electoral system. The purpose of this paper is to analyze these accusations through the concept of abusive constitutionalism, considering that the authoritarian government elected for presidency has been deceiving democratic instruments.
Scholars have repeatedly denounced the existence of a recent movement of democratic deterioration around the world. The use of legal means to do so is known as “abusive constitutionalism” overcoming typical illegal military coups that denied the agenda of liberal democracy, maintaining a full democracy appearance. Recently, Brazil has experienced challenges to its young democracy, while constitutional amendments, when analyzed by the lens of abusive constitutionalism, can denote threats to the institutional design adopted inasmuch as, in casuistic and circumstantial ways, compromises independent checks as the Supreme Court. A clear example of this movement is the “amendment of the cane”, a constitutional amendment whose meaning, by increasing the age of ministers retirement, was to exclude from the Workers’ Party Brazilian President Dilma Rousseff two nominations to the Supreme Court during her tenure, adapting democracy to the wishes of legislative and executive elites.
The discussion about the democratic viability of the judicial review of constitutional amendments has become increasingly important considering the worldwide threats of disfiguring reforms. It is important to discuss: “Is it a good practice?”. In general, the doctrine is divided among those who: (a) accept the practice as a way to protect the constitutional text; (b) refute this type of review because it gives exorbitant powers to the judiciary. Brazil’s case, in this context, has to be analyzed taking under consideration some specificities of the Constitution of 1988: (i) a long and detailed text; (ii) a facilitated constitutional reform process; (iii) a long list of entrenched clauses. These characteristics result in numerous amendments (99 reforms in 30 years). In addition, they make the constitution very vulnerable to abuse. Thus, the judicial review of constitutional amendments becomes a much more acceptable instrument for democracy in Brazil than in a number of other countries.