The extent of states’ constituent power according to the Brazilian Supreme Federal Court: case-law during the military regime (1964-85)* A extensão do poder constituinte estadual no STF: a jurisprudência da Corte no período militar (1964-85)
Alynne Nayara Ferreira Nunes** Rafael Viotti Schlobach***
ABSTRACT
This article aims to examine the caselaw of the Brazilian Federal Supreme Court about the limits to the constituent power of member States during the
* Article received on July 22, 2016, approved on February 15, 2018 and revised on October 2019. DOI: http://dx.doi.org/10.12660/rda.v278.2019.80835. ** Escola de Direito de São Paulo da Fundação Getulio Vargas, São Paulo, SP, Brazil. Email: [email protected]. Master of Laws and Development from the Escola de Direito de São Paulo da Fundação Getulio Vargas (2016). Bachelor of Laws from the Universidade São Judas (2013). She was a student at the Escola de Formação da Sociedade Brasileira de Direito Público (SBDP) of the class of 2011. Founding Lawyer of Ferreira Nunes Advocacia em Direito Educacional. *** University of São Paulo, Sao Paulo, SP, Brazil. Email: [email protected]. Bachelor of Laws from Faculdade de Direito da Universidade de São Paulo (2017), double degree from the Faculdade de Direito da Jean Moulin Lyon 3 University (France), obtained through the Pites partnership. He was a student at the Escola de Formação da Sociedade Brasileira de Direito Público (SBDP) of the class of 2014. State Prosecutor of São Paulo.
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authoritarian and centralizing military regime (19641985). Afterwards, we compared the results with the current caselaw, under the 1988 Constitution of the Federative Republic of Brazil, which attributed more autonomy and competences to the States, according to the research made by Schlobach (2014). We concluded that, in the authoritarian regime, the Brazilian Federal Supreme Court developed a restrictive caselaw about the scope of action of the States’ constituent powers, except for Justices Aliomar Baleeiro and Victor Nunes Leal, which stood out by their dissenting opinions and their defense of more autonomy to the constituent powers. At the end of the regime, the Brazilian Federal Supreme Court developed arguments in favor of a cooperative federalism, which was not, however, observed after 1988, period when the Court still referred to the military regime caselaw.
KEYWORDS
Brazilian Federal Supreme Court — military regime — constituent power of member States — centralization — federalism
RESUMO
O presente artigo objetiva examinar a jurisprudência do Supremo Tribunal Federal (STF) acerca dos limites ao poder constituinte estadual, durante o período autoritário e centralizador do regime militar (1964-85). Em seguida, pretendemos comparar os resultados com a jurisprudência atual, sob a vigência da Constituição Federal de 1988, que atribuiu maior auto nomia e competências aos estados-membros, segundo a pesquisa de Schlobach (2014). Concluímos que, no período autoritário, o STF adotou jurisprudência restritiva relativa ao âmbito de atuação dos poderes constituintes, ressalvados os ministros Aliomar Baleeiro e Victor Nunes Leal, que se destacaram por ficarem vencidos e por defenderem maior autonomia aos constituintes estaduais. Ao final do regime, o STF desenvolveu argumentos para estimular o federalismo cooperativo, que, no entanto, não foi observado durante o período pós-CF/88, no qual a Corte manteve referências à jurisprudência do período militar.
PALAVRAS-CHAVE
STF — regime militar — poder constituinte estadual — centralização — federalismo
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1. Introduction1
The Brazilian military dictatorship was characterized by grounding its actions on legal norms. The aim was to give legitimacy to an unelected government that then innovated the legal system. The profusion of norms, on the other hand, would not guarantee the exercise of power in a little conflicting way: the dynamics of the law itself could culminate in actions unfavorable to the authoritarian regime, which resulted in the recrudescence of militarism. Therefore, the power concentrated in the federal government would cast doubt on Brazilian federalism: under this new authoritarian and centralized constitutional system, would the member states still enjoy autonomy and the power of self-organization? The edition of arts. 188 of the 1967 Constitution of the Federative Republic of Brazil and 200 of Constitutional Amendment (EC) No. 1/1969, which demanded the action of the state constituent power according to the parameters of those newly promulgated constitutional texts, would make this question even more pronounced: what was the limit of action of the state constituents? Due to the power of the federal government, state constitutions could be challenged before the Brazilian Federal Supreme Court (STF), which also suffered from the authoritarian intervention. The interpretation of the rule by the Brazilian Federal Supreme Court (STF) could culminate in more or less normative space for state constituents, which may reveal an important aspect of the historical construction of our federalism. On the other hand, with the issuance of the 1988 Constitution of the Federative Republic of Brazil, the scenario became more favorable to subnational entities, which now have greater scope to exercise their competences, as well as autonomy and self-organization capacity. Accordingly, Schlobach2 developed a relevant study on the interpretation of the Brazilian Federal Supreme Court (STF) on the margin of autonomy of the post-88 state constituents, with regard to the principle of separation of powers, enshrined by the 1988 Constitution of the Federative Republic of Brazil (CF/88). Its
1 The subject of this research arose from the research developed by SCHLOBACH, Rafael Viotti. Simetria federativa e separação de Poderes: um estudo da jurisprudência do STF no controle de constitucionalidade das Constituições Estaduais. Sociedade Brasileira de Direito Público, 2014. Co-author of this article considered the case law of the Supreme Court regarding the limits to the state’s constituent power, according to the parameters of 1988 Constitution of the Federative Republic of Brazil. This article is part of the project “Dual EF” of the Brazilian Society of Public Law (SBDP), which encourages the development of research between counselor and mentor of the monographs presented in the Escola de Formação course. 2 Ibid.
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conclusion was that the Supreme Court has established precedent that the federal constitutional text should be taken as a model to be strictly followed by the state text, which is the parameter used to interpret rules on the principle of separation of powers. The Brazilian Federal Supreme Court (STF) left it to the Federal Government to provide for such rules, reducing the field of normative innovation by member states. Therefore, due to the current case law of the Supreme Court concerning the relevant aspect of the activity of state constituents — namely, the principle of separation of powers — we intend to examine the Supreme Court precedents during the authoritarian period, in which the rules gradually contributed to a more restrictive and less autonomous scenario. In view of the results obtained, we aim to verify if the Brazilian Federal Supreme Court (STF) changed its case law due to the cooperative federalism proposed by the 1988 Constitution of the Federative Republic of Brazil (CF/88), based on Schlobach’s research.3 In fact, it is a matter of comparing the scenarios and assessing whether there are still remnants of the military period. Consideration should be given to the beginning of the studies on authoritarian government interference with institutions and law. In this sense, studying legal acts from the perspective of the authoritarian past may be able to reveal how legal rules have been applied in practice, how they have been challenged and, more deeply, whether they still influence current legal dynamics. The article is divided as follows, besides this brief introduction: (i) historical-normative context, in which we explain the norms that gave legal support to the regime according to the factual developments, as well as the federal norms that interfered in the attributions of the state constituent power; (ii) the Supreme Court’s case law on the extent of the state constituent power in the military government period, accompanied by (iii) final considerations, in which we will summarize the predominant arguments in the case law of the authoritarian period, comparing them with the results of Schlobach’s research,4 which dealt with the activity of the state constituent under the current Constitution.
3 Ibid. 4 Ibid.
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2. The historical-normative context: the legal actions of the military regime under Brazilian federalism
2.1 A brief account of law as a factor of legitimacy of authoritarian government
The military’s seizure of power in 1964 would initiate a regime marked by authoritarianism and regression on fundamental rights and freedoms. Arguing that political opposition was a threat that the state should counter, the summit of militarism seized power with broad support from conservative sectors of civil society.5 According to the military, the intervention would last long enough to restore order and curb the alleged communist threat.6 However, from the second half of the 1960s onwards the regime began to resurface. There was a process of intensification in the centralization of power by the military, represented by violent repression and the use of torture methods against those who opposed the regime, resulting in censorship of the media and other restrictions on individual rights.7 What was supposed to last a short time8 lasted and lasted for over 20 years, officially ending only in 1985. The authoritarian government was especially marked by supporting its actions on the basis of normative documents, many of them produced exclusively by the executive branch itself, which intended to give it legitimacy through the law and its technical language.9 By restricting its actions through
5 For a description of the political movements that strengthened the military’s seizure of power, see GASPARI, Élio. A ditadura envergonhada. São Paulo: Companhia das Letras, 2002. On the seizure of power by the military, a common phenomenon in Latin American dictatorships, due to the virtues of the Castro class, see COMBLIN, Joseph. A ideologia da Segurança Nacional — o poder militar na América Latina. Translation by A. Veiga Filho. 2. ed. Rio de Janeiro: Civilização Brasileira, 1978. p. 75-78. 6 See especially preamble entitled “À nação”, contained in the Institutional Act of April 9, 1964, issued by the Supreme Command of the Revolution. 7 On the restriction of rights in dictatorship, see especially Joseph Comblin, A ideologia da Segurança Nacional, op. cit., pgs. 80-84. 8 Castello Branco, the first president of the authoritarian government, wanted the intervention to be punctual, but the influence of the military hardline changed that process. See SKIDMORE, Thomas. Brasil: de Getúlio Vargas a Castelo Branco, 1930-1964. Translation coordinated by Ismênia Tunes Dantas. 7. ed. Rio de Janeiro: Paz e Terra, 1982. pg. 375. 9 Accordingly, see QUEIROZ, Rafael Mafei Rabelo; SPIELER, Paula. Advocacia em tempos difíceis — ditadura militar 1964-1985. Curitiba: Juruá, 2013. pg. 35. The use of legal instruments as a means of legitimizing authoritarian acts was not an exclusively national phenomenon; On the contrary, other countries have also used these provisions. Barbosa (BARBOSA, Leonardo Augusto de Andrade. Mudança constitucional, autoritarismo e democracia no Brasil pós-1964. Dissertation (doctorate) — Faculdade de Direito, Universidade de Brasília, Brasília, 2009. p.
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the law, organizing them under legal formalism, the state structure intended to give a superficial democratic image to its actions.10 Even by using the resumption of democracy as a justification for the seizure of power, the authoritarian government also conceived it as an element that would give it legitimacy. It was concerned, in fact, with establishing artifices, supported by the law and in the speech for the defense of the democratic order, capable of assuring legitimacy to the government not elected by the popular vote. From an institutional point of view, rulers would have broad decision- making power without popular participation.1111As Comblin sums it up,12 The Military Junta, in addition to creating the legal rules, began to interpret the nation, being itself the “source of all the law of all institutions”.13 However, interference with state bureaucracy and life in society through a complex and democratic-looking legal framework did not guarantee absolute peace of mind for the exercise of power.14 That is, the law, when implemented, can act as an instrument of attack on authoritarian practices,15 attenuating
12) points out that authoritarian governments do not usually state to be undemocratic, that is why they create norms to forge the existence of a supposed democracy. This practice, however, does not correspond to the idea of constitutionalism, which concerns the existence of an essential core of democratic rights, capable of assigning limits to power, through a system of checks and balances (Ibid.; FAORO, Raymundo. A república inacabada. São Paulo: Globo, 2007. pg. 184). It is therefore not uncommon for authoritarian governments to appropriate the language of constitutionalism to formally legitimize their actions. Including for Carlos Medeiros Silva (A Constituição e os atos institucionais. Revista de Direito Administrativo, Rio de Janeiro, v. 121, pg. 470, Jul./Sep. 1975), the regime’s principal articulating jurist, the AI-1 and the 1967 Constitution would represent “the foundations of the new Brazilian constitutionalism” (Ibid., pg. 470), as an attempt to construct solid theoretical repertoire to legally ground the acts of the authoritarian government. That is, the use of the law is not restricted to the editing of normative documents, but also ensures that there are jurists committed to the regime, and who defend the legitimacy of their acts before the legal community. 10 It is worth remembering that it was common for the authoritarian government to make use of the “combat communism” discourse, as a way to rescue the supposedly damaged democracy, to create the exception laws. See Joseph Comblin, A ideologia da segurança nacional, op. cit., pg. 71. 11 11 The issue of norms and domination of institutions, in this context, does not mean that the population will be entirely detached from the decision-making process, but will be convinced that it must collaborate with the regime, considerably restricting the freedom of political participation. 12 Ibid., pg. 79. 13 Ibid. 14 Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 13 15 Barbosa (ibid., pg. 13) reports some of the impasses experienced by the Brazilian military government, such as unfavorable court decisions, difficulty maintaining political support, electoral defeats, among others. In the same sense, see also Pereira (PEREIRA, Anthony W. Ditadura e repressão: o autoritarismo e o estado de direito no Brasil, no Chile e na Argentina. Translation by Patricia de Queiroz Carvalho Zimbres. São Paulo: Paz e Terra, 2010), on the legality of political crimes, in addition to Queiroz and Spieler (Advocacia em tempos difíceis, op.
Administrative Law Review, Rio de Janeiro, v. 278, n. 3, pg. 185-220, Sep./Dec. 2019. ALYNNE NAYARA FERREIRA NUNES, RAFAEL VIOTTI SCHLOBACH | The extent of states’ constituent power... 191 the artificial legitimacy of the regime and may even lead to its overthrow. Therefore, there is constant vigilance by the authoritarian government over the institutions, considerably reducing their degree of autonomy, until it is possible to minimize the legal maneuvers that could reach it. During the more than 20 years of authoritarian rule in Brazil, as Gaspari pointed out,16 there have been “periods of greater or lesser rationality in dealing with political issues”.17 That is, the legitimacy of the government, although backed by legal norms, has in fact become a constant object of internal disputes, which is one of the factors that may have led to greater or lesser intervention, and even prolonged or precipitated the process of the end of authoritarian rule. Therefore, the use of such legal tools is subject to political inclement weather and is not capable of guaranteeing absolute protection to the legitimacy deficits of the regime. Understanding the manner in which military presidents made use of law to legitimize themselves as rulers, as well as the resistance they experienced to the restrictions imposed on the exercise of state constituent powers, may reveal an important aspect of the history of law and federalist relations. Although it is admitted that the military government was centralizing and considerably restricted the autonomy of the states, this scenario may have been objected to, causing fights between federative entities and the editing of even more restrictive acts. Consideration shall also be given to the role that other institutions may play in the application of law, such as the Legislative and Judiciary Powers, which may interfere to a greater or lesser extent on federalist issues, depending on the autonomy conferred on the institution. Therefore, we will describe below the constitutional norms that sought to regulate the state constituent powers (art. 188 of Federal Constitution of 1967 (CF-67) and art. 200 of Constitutional Amendment (EC) No. 1/1969), contextualizing them with the events of the time.
cit.), which bring reports of defense lawyers of persecuted politicians. These aspects and their consequences can only be verified once a measure imposed by the authoritarian government comes into force - that is, we can only verify their degree of success from their practical implementation. 16 Élio Gaspari, A ditadura envergonhada, op. cit., pg. 130. 17 For the author, even the intensification of torture functioned as a thermometer of the most arbitrary moments of the military government (ibid., pg. 130). Commonly, however, it has been that the apex of the regime in Brazil occurred gradually from 1964 to 1968, culminating in the publication of Institutional Act No. 5 (Joseph Comblin, A ideologia da segurança nacional, op. cit., pg. 163).
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2.2 Authoritarian acts and their interference in institutions and federalism
The first legal act of the authoritarian government was issued on April 9, 1964, signed by the “Supreme Command of the Revolution”, composed of the commanders of the Army, Navy and Air Force, having received the denomination of Institutional Act (AI). Endowed with full powers, the Supreme Command prescribed itself the endowment in the exercise of constituent power,18 but formally there were limits: they did not intend to “radicalize” the seizure of power and would alter CF-46 “only” with respect to the powers of the president.19 Marshal Castelo Branco was indirectly elected to occupy the Presidency two days after the issuance of the AI (AI-1, art. 2, head provision). Under this legal context, the AI should exist concurrently with the liberal content of the 1946 Constitution, which demonstrated the ambivalence of the regime.20 On the one hand, the Supreme Command attributed itself to representing the people’s longings to purge the “communist threat”; and, on the other hand, the National Congress was kept in operation, whose identity would become dim, since it was not clear whether it was still the body that actually represented the Brazilian people.21 Although they invoked constituent power, the idea was not to innovate with a new constitution,22 but to protect the Federal Constitution of 1946 (CF/46), trying to show that the seizure of power consisted in restoring the conditions of governability.23
18 See “À nação”, the text that begins Institutional Act No. 1. In this sense, Carlos Medeiros Silva (O Ato Institucional e a elaboração legislativa. Revista Forense, São Paulo, yr. 61, v. 207, 1964), one of the regime’s chief jurists, attributed to the first Institutional Act the status of “temporary constitutional law” (ibid., pg. 5). In another article, Silva pointed out that both AIs and Complementary Acts (ACP) are immune even to possible normative conflicts, since “they constitute a special category of juridical, autonomous and sovereign norms, cogent in themselves, without possibility of confrontation or conflict of a negative effect with any others“ (SILVA, Carlos Medeiros. Atos Institucionais e Atos Complementares — Delegação Legislativa — Representação de Inconstitucionalidade — Imposto sobre Circulação de Mercadorias. Revista de Direito Administrativo, Rio de Janeiro, v. 95, pg. 282, Jan./Mar. 1967). 19 See “À nação”, the text that begins Institutional Act No. 1. It should be remembered that Carlos Medeiros Silva published articles in Revista Forense and in the Revista de Direito Administrativo, of which he was editor-in-chief, defending the rule, capable of leading the country to institutional normality. See SILVA, Carlos Medeiros. Notas e comentários — observações sobre o Ato Institucional. Revista Forense, São Paulo, yr. 61, v. 206, 1964; SILVA, Carlos Medeiros. O Ato Institucional e a elaboração legislativa. Revista Forense, São Paulo, yr. 61, v. 207, 1964; SILVA, Carlos Medeiros. Notas e comentários — seis meses de aplicação do Ato Institucional. Revista Forense, São Paulo, yr. 61, v. 208, 1964. 20 See Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 44. 21 Ibid., pg. 44. 22 Ibid., pg. 47. 23 See Carlos Medeiros Silva, Notas e comentários — observações sobre o Ato Institucional, op. cit.
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A little over a year later, the military government would issue Institutional Act No. 2, which institutionalized bipartisanship (AI No. 2, Art. 18) and excluded from judicial review acts performed by the Supreme Command of the Revolution, in addition to acts of the state and municipal legislatures that determined the annulment of mandates of parliamentarians contrary to the regime (AI No. 2, art. 19). Changes were also made in Federal Constitution of 1946 (CF/46), increasing to 16 the number of Brazilian Federal Supreme Court (STF) justices (AI No. 2, art. 6), and modifications in the legislative procedure, giving greater scope to the President of the Republic and emptying the normative function of the National Congress (AI No. 2, Art. 2 et seq.). The president could also order a recess in the legislative bodies of any entity of the federation, by means of a Complementary Act (AI No. 2, art. 31), which considerably restricted the autonomy of the federative entities and allowed the authoritarian government to appoint governors, aligned with the system. In addition, it was determined that the Legislative Assemblies should amend their respective constitutions, within 60 days, to cover as provided in arts. 3, 4, 5 and 25, concerning the legislative procedure and the determination of pay parity for civil servants (AI No. 2, Art. 32), under penalty of automatic application of the provisions of AI No. 2 (Art. 32, sole paragraph). The relative ease in issuing institutional acts, in turn, did not lead the authoritarian government to abandon the proposition of constitutional amendments, certainly because this measure could give greater legitimacy to the intended action, as it would have the backing of the National Congress. Thus, on 10 days after the issue of AI No. 2, the government forwarded PEC No. 6/1965, aimed at reforming the judiciary. Twenty days later, on November 26, 1965, Constitutional Amendment (EC) No. 16/1965 was enacted, which, among its provisions, disciplined the abstract control of the constitutionality of laws and acts in the country.24 In this sense, the Brazilian Federal Supreme Court (STF), which now comprises 16 justices,25 jurisdiction was originally granted to adjudicate
24 In 1891, the order admitted the diffuse control of constitutionality, which gradually merged with aspects of abstract (concentrated) control, related to interventional measures (AFONSO DA SILVA, José. Curso de direito constitucional positivo. 35. ed. São Paulo: Malheiros, 2012. pg. 51). Mendes (MENDES, Gilmar Ferreira. Considerações sobre o papel do procurador-geral da República no controle abstrato de normas sob a Constituição de 1967/69: proposta de releitura. Revista de Informação Legislativa, Brasília, yr. 34, n. 135, pg. 114-116, Jul./Sep. 1997) points out that there was no precise distinction between abstract control and interventional representation, which led to legal scholarship about the role of PGR in representing unconstitutionality. 25 On the Brazilian Federal Supreme Court (STF) during the dictatorship, see COSTA, Emilia Viotti da. STF: o Supremo Tribunal Federal e a construção da cidadania. 2. ed. São Paulo: Editora Unesp, 2006.
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representations of unconstitutionality against federal or state law,26 which could be filed only by the Attorney General, freely appointed by the President of the Republic.27 It is important to point out that the constitutionality control over acts of subnational entities occurred until then through federal intervention procedure, which conferred competence to the Federal Attorney General (PGR) to claim before the Brazilian Federal Supreme Court (STF) the declaration of unconstitutionality of the act, which would be suspended (Federal Constitution of 1946 (CF/46), art. 8, head provision, regulated by Law No. 4.337/1964). In turn, the coexistence of Federal Constitution of 1946 (CF/46) with the “revolutionary acts” represented a shake in the constitutional legal system.28 The military summit resisted to edit new constitution, more affects the purposes of the regime, but the moderate profile of the then president Castelo Branco29 would try to put the idea into practice. It was, then, that Castelo Branco appointed a commission of jurists, led by Justice Carlos Medeiros Silva, to promote a kind of “constitutional consolidation,” not a constituent or new constitution.30 The National Congress, whose recess had been decreed since October 20, 1966 by Complementary Act No. 23, was extraordinarily convened, by determination of Institutional Act No. 4, of December of the same year, to consider the constitutional bill within a short period.31 (AI No. 4, Art. 1, paragraph 1). Barbosa32 emphasized that drafting a new constitution led to the belief that the system was related to the intentions of the democratic state that abides by the rule of law, and that Congress would be a relevant actor to confer legitimacy on the process; If they were not successful in the Legislative Branch, the granting of the constitutional text was seen as a possible solution.33 With regard to the constituent power of the states, the draft Constitution provided that state constitutions should be adapted to the provisions of the new
26 See new wording: ‘Art. 101, I, k. The Supreme Court is responsible for: [...] Representation against the unconstitutionality of a law or act of a normative nature, federal or state, forwarded by the Federal Attorney General”. 27 On the role of the Federal Attorney General (PGR) in the concentrated control of constitutionality under the regime of the 1967 and 1969 Constitutions, see Gilmar Mendes, Considerações sobre o papel do procurador-geral da República no controle abstrato de normas sob a Constituição de 1967/69: proposta de releitura, op. cit. 28 Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 40. 29 Ibid., pg. 48. 30 Ibid., pg. 84. 31 The extraordinary convocation should last from December 12, 1966 to January 24, 1967 (AI No. 4, Art. 1, main provision). 32 Ibid., pg. 89. 33 Ibid., pg. 89-90.
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34 See “Art. 179. States, within sixty days, shall adapt their Constitutions to the provisions of this Constitution; otherwise federal intervention shall be decreed for this purpose. Sole paragraph. The Governor of the State shall present the draft by April 15, 1967.” (BRAZIL, Congresso. Câmara dos Deputados, Secretaria-Geral da Presidência. Constituição do Brasil de 1967. Anais. Brasília: 1969. v. I, pg. 82). On the penalty of “federal intervention,” Faoro (FAORO, Raymundo. O excesso de adaptação das cartas estaduais à Constituição de 1967. Revista da Faculdade de Direito da Universidade Federal do Paraná, v. 12, p. 154-155, 1969) understands that the measure may be insufficient because it does not cover constitutional reform. 35 Brazil, Brazilian Constitution of 1967, op. cit., pg. 274 36 Ibid., pg. 557. 37 As we have seen, the National Congress was extraordinarily summoned to vote on the draft of the new constitution on December 7, 1966 and finished its work on January 24, 1967 (AI No. 4, art. 1, head provision), which corresponds to 48 days - it is also worth remembering the episode known as the “case of the clocks”, in which Auro de Moura Andrade, president of the National Congress, ordered that the clocks be stopped nine minutes before midnight, to finish the examination of the constitutional draft on time (Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 99). Thus, as the Legislatures would have to comply with the deadline of AI No. 4, it is necessary that the regulation of Decree Law (DEL) No. 216 established the following deadlines: (i) 30 days for the Governor to submit the draft adaptation to the respective Legislature, which should do so by April 15 (art. 2), first month of effect of the Federal Constitution of 1967 (CF/67), (ii) after the draft has been submitted by the governor, the Legislature had 48 days to consider it (art. 2, sole paragraph) and (iii) 60 days for the governor to represent the unconstitutionality of the provisions of the Constitution, through the Federal Attorney General (PGR), before the
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governors, within 60 days of approval of the constitutional text, to question the constitutionality of the provisions before the Brazilian Federal Supreme Court (STF), through the Federal Attorney General (PGR) (Decree Law (DEL) No. 216, art. 3). The filing of complaint of unconstitutionality suspended the effects of the rule in question (Decree Law (DEL) No. 216, art. 3, sole paragraph), which presupposes a certain presumption of unconstitutionality as measured by the governors and Federal Attorney General (PGR).38 The promulgation of Federal Constitution of 1967 (CF/67) was, in fact, a transformation of federalism, since, although formally retaining it as a state, it promoted the strengthening of the federal executive in the face of diminishing competencies of subnational entities.39 As summarized by Caio Tacitus, examining the changes in the design of relationships between beings and their competences: “However, the transformations of the balance between national unity and local autonomy are symptomatic.”40 The military regime would intensify more intensely soon after the promulgation of Federal Constitution of 1967 (CF/67). In the Costa e Silva government, Institutional Act No. 5 was issued on December 13, 1968, drawn up by Justice Minister Gama e Silva,41 admittedly the most authoritarian of the acts of military government.42 This act allowed the government to decree to the National Congress43 the Legislative Assemblies and the City Councils (AI No. 5, art. 2), decree federal intervention in any federative entity “without the limitations provided for in the Constitution” (AI No. 5, art. 3), besides having suspended the guarantee of habeas corpus for political crimes, against national security, the economic and social order and the popular economy (AI No. 5, art. 10). Its provisions would also be free of any judicial appreciation (AI No. 5, art. 11).
Brazilian Federal Supreme Court (STF) (art. 3). Adding up the deadlines, we have, in fact, about 78 days for the member state to make the adaptations internally (between governor and legislature). 38 In any case, it was debated whether or not the Federal Attorney General (PGR) be linked to the requests for representation made to it. Accordingly, see especially, Mendes, Considerações sobre o papel do Procurador-Geral da República no controle abstrato de normas sob a Constituição de 1967/69: proposta de releitura, op. cit. 39 TÁCITO, Caio. As constituições estaduais e sua adaptação à Carta Federal. Revista de Direito Administrativo, Rio de Janeiro, pg. 157-158, Dec. 2013. 40 Ibid., pg. 158. 41 Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 110. 42 Joseph Comblin, A ideologia da segurança nacional, op. cit., pg. 81. 43 The recess of the National Congress was decreed indefinitely on the same date as the edition of Institutional Act No. 5, by means of Supplementary Act No. 38.
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AI No. 5 even affected the composition of the Supreme Court, by determining the compulsory retirement of Justices Evandro Lins, Hermes Lima and Victor Nunes Leal, as they did not share the ideas of the regime, besides having recognized political performance in previous governments. In solidarity with his colleagues, Justice Gonçalves de Oliveira resigned and Justice Lafayette de Andrada, who would succeed him, retired.44 The vacancies that were filled by these justices, however, were not re-nominated because the authoritarian government would issue, in February 1969, Institutional Act No. 6, which determined that the Court would be composed of 11 justices, and not 16. The issuance of Institutional Act No. 5 has in practice emptied the provisions of Federal Constitution of 1967 (CF/67).45 In this sense, Costa e Silva aimed to amend the Federal Constitution of 1967 (CF/67) to keep AI No. 5 in force.46 The president attributed the responsibility of drafting a new text to Gama e Silva, who, in turn, took no action, as he opposed the idea of supposedly limiting the powers of the system through constitutional means.47 The way out was to nominate Vice-President Pedro Aleixo, the only one who took a position against AI No. 5, as leader of a Notable Commission, to embody the proposal.48 Concerning the autonomy of the state constituent power, the draft Constitutional Amendment of the Notable Commission provided that the State Constitutions should incorporate the provisions of the Federal Constitution
44 Emilia Viotti da Costa, STF, op. cit., pg. 173. 45 Ibid., pg. 171. To Ayres Britto (O problema da vigência dos atos complementares posteriores à edição do AI-5. Revista de Direito Processual Geral, Rio de Janeiro, n. 32, pg. 4, 1977), on the other hand, the purpose of AI No. 5 was to preserve the “validity of the basic statute of 1967” (Ibid.). According to his interpretation, there were two coexisting legal orders: the 1967 Federal Constitution and AI No. 5 and their respective complementary acts, and the latter had “superiority to exceptional status” (Ibid., pg. 5). 46 Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 114. 47 ARAÚJO, Caetano Ernesto Pereira de; MACIEL, Eliane Cruxên Barros de Almeida. A Comissão de Alto Nível: história da Emenda Constitucional nº 1, de 1969. In: SENADO FEDERAL. A Constituição que não foi: história da Emenda Constitucional n. 1, de 1969. Brasília: Senado Federal, 2002. pg. 47. 48 Ibid., pg. 48-49. The Notable Commission was composed of Costa e Silva (President of the Republic), Pedro Aleixo (Vice President of the Republic and organizer of the works), Gama e Silva (Minister of Justice), Hélio Beltrão (Minister of Planning), Temístocles Cavalcanti (Minister of the Supreme Court), Rondon Pacheco (head of the Civil House), Miguel Reale (jurist) and Carlos Medeiros Silva (jurist) (FEDERAL SENATE. A Constituição que não foi: história da Emenda Constitucional n. 1, de 1969. Brasília: Senado Federal, 2002. pg. 87). For an analysis of the profile of its members and the conduct of their activities, see especially Caetano Ernesto Pereira de Araújo and Eliane Cruxên Barros de Almeida Maciel, A Comissão de Alto Nível, op. cit., pg. 49-65). In addition, see the shorthand notes of the sessions of the Commission, which took place from July 14 to 17, 1969, in the Federal Senate (A Constituição que não foi, op. cit., pg. 87-446).
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— and not just of the future Amendment, but of the entire text — whose wording was as follows: “Art. 198. The provisions of this Constitution shall be incorporated, as appropriate, into the constitutional law of the States”. Then, President Costa e Silva intended to reopen the National Congress to promulgate the new Constitution, despite the opposition of the lineage, which was against the reopening of the Federal Legislature.49 However, the president had serious health problems that prevented him from holding the presidency. According to the constitutional order, Vice President Pedro Aleixo should take office, but the fact that he voted against AI No. 5 was cause for distrust by the military summit.50 Thus, General Jayme Portella, head of the Military Cabinet, envisioned the replacement of Aleixo by a military junta,51 with representatives of the three forces,52 whose seizure of power was regulated by Institutional Act No. 12 of September 1, 1969. It was a hardliner victory.53 President Costa e Silva’s draft Constitutional Amendment, however, was modified by the Military Board, which made about 40 amendments to the original text,54 and granted it as “Constitutional Amendment No. 1” on October 17, 1969, which would come into force on October 30 of the same year (Constitutional Amendment (EC) No. 1/1969, art. 2).55 However, as regards the provision of state constituent power, the Military Junta retained the original provision in its entirety,56 that would become art. 200 of Federal Constitution of 1967 (CF/67). Contrary to the rule provided for in art. 188 of Federal Constitution of 1967 (CF/67) which granted a deadline for the adjustment of the state constitutional texts, it determined the immediate incorporation of the Federal Constitution of 1967 (CF/67), with the alterations promoted by Constitutional Amendment (EC) No. 1/69.
49 Leonardo Augusto de Andrade Barbosa, Mudança constitucional, autoritarismo e democracia no Brasil pós-1964, op. cit., pg. 116. 50 Ibid. 51 Ibid., pg. 117. 52 The Junta was composed by Augusto Hamann Rademaker Grünewald (Navy), Aurelio de Lyra Tavares (Army) and Márcio de Souza e Mello (Aeronautics). 53 Caetano Ernesto Pereira de Araújo and Eliane Cruxên Barros de Almeida Maciel, A Comissão de Alto Nível, op. cit., pg. 58 54 Ibid., pg. 65. 55 Apparently, there was no debate at the time about the control of constitutional amendments to be carried out by the Supreme Court (PERTENCE, Sepúlveda. O controle de constitucionalidade das Emendas Constitucionais pelo Supremo Tribunal Federal: crônica de jurisprudência. Revista Eletrônica de Direito do Estado (Rede), Salvador, n. 9, pg. 5, Jan./Feb./Mar. 2007), reason why, probably, no rule was inserted in the Constitutional Amendment (EC) No. 1/69 that was able to remove its judicial control, as in the Institutional Acts. 56 See “Art. 200. The provisions of this Constitution shall be incorporated, as appropriate, into the constitutional law of the States”.
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Therefore, through this historical panorama that seeks to synthesize the political and legal issues that led to changes in the treatment between the Federal Government and the states, we can see that the authoritarian government option, in the two proposals for altering the constitutional text, was to determine the incorporation Federal Constitution to State Constitutions. More radical proposals, such as the original draft of the Federal Constitution of 1967 (CF/67), which provided for the sanction of federal intervention in the absence of incorporation, were rejected by resolution in the National Congress. This provision, later regulated by Decree-Law No. 216, was largely maintained by the hardline,57 which granted Constitutional Amendment (EC) No. 1/1969 and, in any case, had wide discretion to order federal intervention in the states based on AI No. 5 (art. 2). In the following timeline, we intend to demonstrate the normative apparatus that underpinned the actions of the authoritarian government, resulting in greater subjection of states to constitutional changes promoted by the Federal Government.
Figure 1 Timeline
Source: own draft.
57 It was not kept in the wording of art. 200 of Constitutional Amendment (EC) No. 1/69 the deadline for adjustments of the state Constitutions. Even at that time, this could become unviable because the military government had decreed the recess of some Legislative Assemblies in February 1969 - if we consider that the process would involve the Legislative Power, as in Federal Constitution of 1967 (CF/67). In this regard, see, by way of example, Complementary Acts No. 47 (Withdrawal of the Legislative Assemblies of the states of Guanabara, Pernambuco, Rio de Janeiro, São Paulo and Sergipe) and No. 49 (Withdrawal of the Legislative Assemblies of the states of Goiás and Pará).
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3. The case law of the Brazilian Federal Supreme Court (STF): did the member states exceed the limits imposed by the military government?
3.1 Methodology
This article aims to examine the case law of the Supreme Court on the constitutionality control of state constitutions during the military dictatorship period, that is, under the aegis of Federal Constitution of 1967 (CF/67) and Constitutional Amendment (EC) No. 1/1969. Therefore, it was necessary to develop method for selection of judgments, in order to cover the largest number of relevant decisions. The first step consisted of the case law research from the search engine of the Brazilian Federal Supreme Court (STF) website,58 using keywords capable of providing the desired judgments, which almost all consisted of representations of unconstitutionality.59 To locate the Appellate Decision related to Art. 188 of Federal Constitution of 1967 (CF/67), the field “Legislation” was located in the “Federal Constitution 1967” and in the field “ART”, art. 188, which resulted even in the keyword “CF-1967 ART-00188”. In addition, a temporal cut-off of the decisions was stipulated: from the date of promulgation of the Federal Constitution of 1967 (January 24, 1967) to the date of promulgation of Constitutional Amendment (EC) No. 1 (October 17, 1969). This research resulted in 14 Appellate Decisions, of which only 11 were considered relevant.60 More complex was the production of a keyword for the selection of the Appellate Decisions referring to art. 200, introduced by Constitutional Amendment (EC) No. 1/1969. Two keywords were considered as there was a possibility that the judgments could refer to both Federal Constitution of 1967 (CF/67) and Constitutional Amendment (EC) No. 1/1969. Firstly, in the “Legislation” field, the term “Constitutional Amendment” was selected, followed by number 1, and in the “ART” field, article 200. In addition, the term “CF-1967” has been added to the key, as it is a constitutional amendment
58 Available at:
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61 The Appeal to the Supreme Court (RE) 106.709 and Extraordinary Appeal to Supreme Court (ERE) 78.151 were excluded, as both cited art. 200 only peripherally. 62 FERRAZ, Anna Cândida da Cunha. Poder constituinte do estado-membro. São Paulo: Editora Revista dos Tribunais, 1979. pg. 161. 63 Available at:
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research universe of this analysis is composed of 44 Appellate Decision.65 For the analysis of its content, we examine the arguments of the ministers about art. 188 of the Federal Constitution of 1967 (CF/67) and art. 200 of Constitutional Amendment (EC) No. 1/1969, which were the focus of the present research.66
3.2 The analysis of the cases judged by the Brazilian Federal Supreme Court (STF)
In the following, we will examine the Court’s interpretation of the exercise of state constituent power during the authoritarian period. We will deal here only with the judgments in which the arguments have been further developed and which are capable of demonstrating specifically the position of the Court. It is worth mentioning that the representations of unconstitutionality were declared valid during most of the regime, except for one case judged in 1986 (Rp 1.245), after the formal end of the dictatorship, but still under the auspices of Federal Constitution of 1967 (CF/67). The analysis of the arguments was divided chronologically into three parts: (i) the claims of unconstitutionality that challenged Decree-Law No. 216, published before Federal Constitution of 1967 (CF/67) — item 4.2.1; (ii) the grounds of the Court on art. 188 of Federal Constitution of 1967 (CF/67) — item 4.2.2; and, finally, (iii) the examination of art. 200 of Constitutional Amendment (EC) No. 1/1969 — item 4.2.3. Thus, it is possible to denote the Court’s performance throughout the period of authoritarian rule until the promulgation of the 1988 Constitution of the Federative Republic of Brazil (CF/88), and eventually be able to reveal changes in position.
65 The 44 Appellate Decisions that made up the universe of this research were: RE No. 65.197, RE No. 72.211, RE No. 78.568, RE No. 95.778, RE No. 100.596, Rp No. 679, Rp No. 747, Rp No. 748, Rp No. 748 EI, Rp No. 749, Rp No. 752, Rp No. 753, Rp No. 755, Rp No. 756, Rp No. 757, Rp No. 760, Rp No. 764, Rp No. 770, Rp No. 772, Rp No. 774, Rp No. 776, Rp No. 808, Rp No. 813, Rp No. 823, Rp No. 826, Rp No. 846, Rp No. 855, Rp No. 864, Rp No. 967, Rp No. 1.005, Rp No. 1.020, Rp No. 1.024, Rp No. 1.134, Rp No. 1.135, Rp No. 1.137, Rp No. 1.173, Rp No. 1.175, Rp No. 1.179, Rp No. 1.183, Rp No. 1.200, Rp No. 1.208, Rp No. 1.245, Rp No. 1.410, Rp No. 1.437 QO. 66 It is noteworthy that it was also considered to study judgments related to the process of adaptation of state constitutions provided for in art. 32 of Institutional Act No. 2, which preceded the Constitution itself of 1967. To this end, a search was also made on the Brazilian Federal Supreme Court (STF) website: the term “Institutional Act” was selected in the “Legislation” field, the number “2” was inserted, and finally the number 32 in the“ART” field. This search key resulted in seven judgments, which, however, were not pertinent to the subject of this paper. This is because none of them involved provisions of state constitutions, but provisions of ordinary state laws.
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3.2.1 Complaints filed against Decree-Law No. 216/1967
Decree-Law (DEL) No. 216/1967, which regulated art. 188 of Federal Constitution of 1967 (CF-67), had its constitutionality questioned before the Brazilian Federal Supreme Court (STF), through Rp 747, from the provocation of the Brazilian Democratic Movement (MDB),67 a party that opposed the authoritarian government. MDB’s arguments were: (i) the Decree-Law, being an ordinary law, had no normative hierarchy to enforce again the provisions of Institutional Act No. 4 — referenced by Decree Law (DEL) No. 216/67, which, with the validity of the Federal Constitution of 1967 (CF/67), only left its effects,68 and (ii) the “dynamics of normative elaboration”69 of the state constitutions could not be altered by determination of the Federal Government, because it would hurt the autonomy of the federative entities and harmony between the powers, provided for in art. 18 of Federal Constitution of 1967 (CF/67). According to the rapporteur Justice Thompson Flores, Rp No. 747 was decided on April 30, 1969, when it was denied, due to the 60-day period referred to in art. 188 of Federal Constitution of 1967 (CF/67).70 This means that the arguments put forward by MDB were not examined by the Court, whose decision was based on a formal order. In fact, Faoro71 considered that any declaration of unconstitutionality of Decree Law (DEL) No. 216/1967 would lead to the declaration of nullity of the deliberations of the Legislature, which would have a constitutional adaptation. On this basis, the rule gave governors the power to request the suspension of the state constitution that had not adapted to Federal Constitution of 1967 (CF/67).72 It should be added that Rp No. 747 was not the only case in which the validity of Decree Law (DEL) No. 216/1967 was questioned. The same occurred in Rp No. 755, decided on May 14, 1969. In this case, the governor
67 It is reported that the complaint was sent to the Federal Attorney General (PGR) on April 28, 1967, and was filed on June 19, 1967. See MDB tenta invalidar lei. O Estado de S. Paulo, April 29, 1967. General, pg. 5; Supremo vê recurso do MDB. O Estado de S. Paulo, June 20, 1967. General, pg. 5. 68 The caveat is that AI No 4 had not been repealed by Federal Constitution of 1967 (CF/67), but, according to the MDB’s understanding, the rule had lost many of its provisions, with the effectiveness of the Federal Constitution of 1967 (CF/67). 69 See pg. 64 of the Appellate Decision rendered in Rp No. 747. 70 The judgment was unanimous and counted on the following justices: Oswaldo Trigueiro (president), Luiz Gallotti, Adalício Nogueira, Eloy da Rocha, Djaci Falcão, Adaucto Cardoso, Themístocles Cavalcânti, Amaral Santos and Thompson Flôres. 71 Raymundo Faoro, O excesso de adaptação das cartas estaduais à Constituição de 1967, op. cit., pg. 168. 72 Ibid., pg. 171.
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of the state of Rio de Janeiro, through the attorney general of the Republic, questioned various provisions of the Rio de Janeiro Constitution. In response, the Legislative Assembly claimed to be unconstitutional the sole paragraph of art. 3 of DEL No. 216/1967, which gave a condition precedent effect to the representation of unconstitutionality raised by the governors of state. This preliminary issue was accepted by the justices. In addition to the passage of time, the Court would be prohibited from assessing the constitutionality of Decree Law (DEL) No. 216/1967 by virtue of art. 173, I of the Federal Constitution of 1967 (CF/67), which excluded from judicial appreciation acts performed by the federal government based on Institutional Acts. And, indeed, AI No. 4 empowered the federal government to enact national security decree laws, which were supposed to be the nature of Decree Law (DEL) No. 216/1967, according to its first recital.
3.2.2 The analysis of art. 188 by the Brazilian Federal Supreme Court
Art. 188 of Federal Constitution of 1967 (CF/67) is dealt with in most appellate decisions. The analysis of decisions reveals important discussions between ministers about the extent and correct interpretation of that provision. A more restrictive interpretation of state autonomy is opposed to a more extensive interpretation, which would allow some freedom of the state constituent, despite the need to adapt to Federal Constitution of 1967 (CF/67). Both positions shall be discussed below.
3.2.2.1 Restrictive interpretation of the appeal: the theory of over adaptation
In most of the Appellate Decisions studied, the unconstitutionality of provisions of the state constitutions was declared, based on the so-called “overadaptation theory”. In general terms, this theory, which would have been developed by justice Djaci Falcão,73 prohibited states from using the procedure provided for in art. 188 of Federal Constitution of 1967 (CF/67) and
73 It was the Justice Adaucto Cardoso who, in Rp No. 755, stated that it was the theory of over- adaptation founded by Justice Djaci Falcão (see Rp No. 755, pg. 186).
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Decree Law (DEL) No. 216/1967 to make constitutional changes that did not correspond to the federal constitutional transition. Several judges used this understanding to restrict the constituent power of states during the period of constitutional transition. Even Justice Djaci Falcão himself was the rapporteur of one of the oldest decisions analyzed in this research. This is Rp No. 753, judged on June 12, 1968, whose object was the constitutionality of a series of provisions of the Constitution of the state of São Paulo. In this occasion, the justice, citing an article by Caio Tácito mentioned earlier, emphasized that the reform process provided for in art. 188 should necessarily fall solely on the express or implied innovations of Federal Constitution of 1967 (CF/67). To the contrary, any change made by states that was not limited to internalizing federal constitutional innovations would be labeled unconstitutional for overadaptation. Other judges, with the exception of Victor Nunes Leal — as we will discuss later — used this reasoning to defend the unconstitutionality of provisions of the São Paulo Constitution. Take, for example, some of the provisions questioned in this action. Art. 4, II, of the Transitional Constitutional Provisions Act of the São Paulo Constitution had set a period of one year for the adoption of the Law of Notary Public Offices. Justice Djaci Falcão warned preliminarily that “the power of reform, for the purposes of adaptation, is worth insisting, is derived and limited” (Rp No. 753, pg. 169) and goes on to add that “under the pretext of solving transitional situations, São Paulo legislator, moving away from the beauty of adaptation [...], established, in a timely manner, the obligation of the officialization of Notary’s Offices and Justice, a matter on which the 1967 Constitution did not bring innovation”. (Rp No. 753, pg. 173) Justices Thompson Flores and Eloy da Rocha developed arguments similar to that of the rapporteur justice, stating, respectively, that “fled the terrain of adaptation. The matter is outside the area of art. 188 of the Federal Constitution” (Rp No. 753, pg. 179) and that “the power of reform was exceeded” (Rp No. 753, pg. 180). Also, dealing with art. 10 of the ADCT, which was also questioned, Justice Djaci Falcão pointed out “that this rule is beyond the scope of the adaptation of the local Political Charter to the federal model, since, as the Attorney General’s opinion emphasized ‘in this adaptation work possible, under the color of resolving transient situations, to create norms that would be incompatible with both the previous and the new constitutions’“ (Rp No. 753, pg. 217).
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The theory of overadaptation was also evident in Rp No. 755, mentioned above, in which several provisions inserted in the Constitution of the state of Rio de Janeiro were questioned. Minister Thompson Flores’ position was exemplary in this regard. Art. 52, sole paragraph, of the Constitution of Rio de Janeiro had established the need for documentary proof of the notorious knowledge of the nominees to occupy the position of minister of the Court of Auditors, an obligation that the Federal Constitution had not stipulated. Regarding this provision, said Justice Thompson Flores, followed by Justice Adalício Nogueira, that “[...] we are examining the State Constitution as an adaptation (art. 188 of the Federal Constitution). The article in question, of course, eluded it; established a standard that is not in the Federal Constitution. I recognize that it is a healthy disposition. It is not enough to justify adaptation. The local constituent has transcended”. (Rp No. 755, pg. 162) Although the justice praised the state norm, it was dismissed for not finding a corresponding norm in the new federal constitutional textof 1967. The norm created by the local constituent would have constituted an “excessive reform”. The most outstanding vote on this provision was Justice Aliomar Baleeiro, as we will discuss in the next topic. In turn, in Rp No. 757, judged on August 7, 1969, in which provisions were contested on the Amazon Constitution, the rapporteur Minister Amaral Santos briefly referred to art. 188. Alluding to art. 75 of the Constitution of that state, which dealt with the performance and the provision of the position of the prosecutor, the rapporteur added: “I see no clear unconstitutionality in the provisions of art. 75 and its paragraph, except in considering that the norm of adaptation was breached by them, exceeding their limits” (Rp No. 757, pg. 67). While not recognizing unconstitutionality in the contested norm, the minister acknowledged, on the other hand, the excess of adaptation, without developing more consistent grounds on that. Finally, it is interesting to deal with Rp No. 770, decided on February 26, 1969, which discussed the provisions of the Constitution of the state of Guanabara, which had been part of the State Attorney General’s Office and the Prosecutor’s Office of the Court of Accounts to the Public Prosecutors’ Office. In this decision, the rapporteur, Justice Djaci Falcão, opined forthe granting of the complaint and emphasized that the reform process provided for in art. 188 could only be applied with regard to rules that “explicitly or implicitly have changed or are no longer compatible with the system adopted in the Constitution” (Rp No. 770, pg. 19). If states wanted to make reforms that went beyond the boundaries of adaptation, that is, unrelated
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3.2.2.2 Positioning of Justices Aliomar Baleeiro and Victor Nunes Leal: In Defense of State Autonomy
Admittedly, there are some judgments in which there is no disagreement between justices: 23 decisions out of 44 analyzed were taken unanimously. However, the cases in which votes were won show the different conceptions of the justices about what was at stake in the interpretation of the amendment imposed by art. 188 of Federal Constitution of 1967 (CF/67). Nevertheless, even in cases where there was agreement on the result, it was interesting to note the divergences on the grounds. Two justices stood out for their minority positions, which favored state autonomy after the entry into force of Federal Constitution of 1967 (CF/67). These justices were Aliomar Baleeiro and Victor Nunes Leal, recognized for
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their studies on national federalism.74 We will point out here the arguments used by these ministers to justify their positions in some of the analyzed decisions. Shortly after the entry into force of Federal Constitution of 1967 (CF/67), on March 6, 1968, Rp No. 764, the oldest ruling in the universe of this research, was tried. The purpose of the representation was the provision of the Constitution of Espírito Santo that had structured the State Court of Auditors, providing for its competence to audit the accounts of the Executive and Judiciary, but not those of the Legislative Branch. Justice Aliomar Baleeiro was the reporting justice of the case and, although he composed the winning majority who declared the unconstitutionality of the provision, his position was markedly different from the understanding of the other justices. Baleeiro said the legal scholarship that states should transplant ipsis litteris the text of the Federal Constitution. Even after being asked by the president, the justice reiterated that the states were not bound by the exact model of account control provided by the federal constituent, a point of sharp disagreement between the rapporteur and justices Adaucto Cardoso and Eloy da Rocha. The issue was widely discussed in Rp No. 749, decided on December 4, 1968. These were a series of provisions arising from the adaptation of the Constitution of the state of Guanabara, whose constitutionality was challenged en bloc by the governor of that state. In that Appellate Decision, the dispute over the interpretation of art. 188 and the most pro-state stance adopted by some justice becomes evident. Aliomar Baleeiro made a broader interpretation of art. 188 than that of his peers, stating that as long as they did not expressly or implicitly injure any provision of Federal Constitution of 1967 (CF/67) state constituents could go beyond the provisions that should have been effectively adapted (Rp No. 749, pg. 2284). Ironically, the justice further adds that, “[...] if the federal constituent wanted a carbon paper copy of the Constitution of 1967, he would have any Planalto Palace typist make a mimeographed model with some clear names to change the article numbers of each state”. (Rp No. 749, pg. 2311) For the justice, instead of keeping the state constituent fully attached to the federal constitutional model, the federal constituent would have given the
74 In this sense, we can cite Baleeiro’s works, focused on the study of fiscal federalism and the need for greater autonomy of subnational entities, such as: Introdução à ciência das finanças, published in 1956, and A crise financeira do federalismo, published in 1970. Victor Nunes Leal was recognized for the award-winning work Coronelismo, enxada e voto, published in 1948 and dedicated to the critical analysis of the centralizing character of Brazilian federalism, especially against the autonomy of municipalities.
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The Constitution of Guanabara, faithful to the traditional lines of the institute, could very well organize the Public Prosecutors’ Office according to its peculiar interests, its conveniences, the inspirations of its discretion, and the legislator cannot be blamed for this. There is no way to say that in this case there is a stark, patent, blatant, or dissonant unconstitutionality of the federal paradigm. (Rp No. 770, pg. 83)
In Rp No. 826, judged on October 21, 1970, several provisions of the Mato Grosso Constitution were challenged. One of these provisions had established an absolute majority quorum of state deputies to declare the prosecution against the governor and the secretaries of state, and Federal Constitution of 1967 (CF/67) established a Congressional quorum of 2/3 for accusations against the president. As the rapporteur, Justice Rafael de Barros Monteiro, argued, would be a typical case of adaptation error, as the state model of accountability of the head of the executive branch would not have followed the federal paradigm. Justice Aliomar Baleeiro, however, opposed this view and was in the minority. According to him, interpreting the obligation of a state quorum identical to the federal would be too restrictive. In his usually
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metaphorical words, “the costume is not so tight, so rigid that it does not allow for slight variations in quantity, width and color. I think it would be lawful for a state to establish a smaller quorum” (Rp No. 826, pg. 101). The justice Victor Nunes Leal, in turn, stood out for his position in Rp No. 753, mentioned above. Nunes Leal opposed the prevailing understanding at the Court of Art. 188. According to him, the supposed amendment envisaged by this provision would be merely a façade amendment, since if the states were to follow the new federal model to the letter, then it would in fact be an immediate incorporation. Thus, the justice questioned what would be the usefulness of the states to carry out the amendment, because in any case there would be an incorporation — it would suffice that art. 188 had envisaged the incorporation without the need for amendment work. State autonomy would have been achieved, “because states did not have the freedom to maintain the status quo. If they did not accept federal innovations, they would automatically and necessarily apply” (Rp No. 753, pg. 130). Based on these premises, Nunes Leal concluded that the interpretation to be given to art. 188 determined that states could, within 60 days, make broader amendments to their constitutions. Pointing out the wording of Decree Law (DEL) No. 216/1967, the minister stressed that the reform would fall only primarily on state provisions incompatible with Federal Constitution of 1967 (CF/67), which would have allowed states to go beyond mere adaptation and make other amendments to their Constitutions, even unrelated to constitutional transition.
3.2.3 The analysis of art. 200 by the Brazilian Federal Supreme Court
As we discussed earlier, art. 200 was introduced by Constitutional Amendment (EC) No. 1/1969 and attenuated the autonomy of state-derived constituent power. This provision brought the obligation of automatic incorporation of the Federal Constitution into the state constitutions, no longer an amendment procedure to be done by the state, as provided for in art. 188 of the 1967 constitutional text. At the time of its grant, including, some state Legislative Assemblies were in recess, due to acts of the military regime.75
75 75 This observation was made by Justice Adaucto Cardoso in Rp No. 823 (pg. 51). See also footnote 57.
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On the occasion of representations of unconstitutionality presented to the Brazilian Federal Supreme Court (STF) involving the application of said art. 200, a case law line was formed concerning the incorporation, by states, of the legislative proceeding outlined in the Federal Constitution. In Rp No. 967, judged on May 3, 1978, the rule of the São Paulo Constitution was challenged, which provided that the Executive’s veto of a bill could only be applied to a complete normative unit (article, paragraph, section, item or letter), never just about one or a few isolated words. It is true that this rule had been repealed from Federal Constitution of 1967 (CF/67) by EC No 1/1969, which removed any restriction on the partial veto. Thus, in this case, the state constituent intended to maintain this rule, then it extirpated from the federal constitutional text. According to Justice Cunha Peixoto, who was part of the majority current in favor of the granting of the complaint:
Thus, in the matter of legislative constitutional process, the federal paradigm, in our view, imposes itself in its integrity, by virtue of art. 13, item III, to the State Constitutions. Thus, it is not possible for the State Constituent Party to depart from the partial model and establish restrictions on the partial veto. (Rp No. 967, pg. 16-17)
On the other hand, the rapporteur justice Rodrigues Alckmin remained unsuccessful and asserted that the provision of the State of São Paulo Constitution did not escape the new federal constitutional model, but merely made explicit the rule on the partial veto, by giving it a more precise outline. It was decided that states should strictly follow the legislative process established by Constitutional Amendment (EC) No. 1/1969, without even being allowed to maintain rules previously provided for in Federal Constitution of 1967 (CF/67), such as the limitation on the partial veto. We recall here the criticism expressed by Justice Victor Nunes Leal, in Rp No. 753, about the impossibility of the state constituents to maintain the status quo: states could not even maintain existing rules before the constitutional transition, which should be replaced by the change in the system. Following this same reasoning, one of the few selected Extraordinary Appeals, Appeal to the Supreme Court (RE) No. 95.778, decided on May 5, 1982, evidenced the divergence among some justices on art. 200. This was a writ of mandamus filed by a state deputy from Rio Grande do Sul against
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a decision of the president of the Legislative Assembly, who, when elected to the Leadership of the House, disregarded the result obtained by most members of the House. In this case, the rapporteur, Justice Clóvis Ramalhete, and Justice Néri da Silveira, who remained unsuccessful, opposed the scope of art. 31 of Federal Constitution of 1967 (CF/67), as amended by Constitutional Amendment (EC) No. 1/1969, which determined the opinion of the majority of members of the Legislature for the deliberations. According to the rapporteur,
[...] there would still be, denying this alleged unlimited discretion of the House the rule of art. 200 of the Federal Constitution. It far more than imposing the federal model on states, it goes well beyond this. It states that ‘the same provisions as those contained in the Federal Constitution are incorporated, as appropriate, into the constitutional law of the State’. [Appeal to the Supreme Court (RE) No. 95.778, pg. 1027]
On the other hand, in the words of Justice Néri da Silveira:
It is not appropriate, on the other hand, to give Art. 200, of the Federal Constitution, interpretation in order to see, in this provision, constitutional rule to be determined by the States to follow all the provisions inserted in the Federal Constitution, regarding the structure and functioning of their powers, which, it is insisted of the federal plan, shall also be independent and harmonious with each other. [...] With Constitutional Amendment No. 1 of 1969, instead of providing for adaptation, the new constitutional rules were incorporated into the states, in whatever they had to submit to them. It is in art. 200, the “where appropriate” clause, which has significant content, to be interpreted in line with the safeguarding, as far as possible, of the autonomy of the Member States, which constitutes an essential value from the perspective of the federal system. [Appeal to the Supreme Court (RE) No. 95.778, pg. 1044]
These are, therefore, two divergent positions regarding the scope of art. 200. The first, more restrictive to the autonomy of the states, which seems to understand the device as a transplantation of the federal constitutional rule to the states regarding the legislative process and the other deliberations of the Legislature. The second, more generous to the constituent power of the
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Meyer, knew the restrictive position on the autonomy of the states, chanced by the other justices:
Such a procedure could be understood, in principle, as being derived from the power of oversight that is entrusted to the Legislature. But this order of scrutinizing activity, which is included in the interrelationship of the Powers, is institutionalized in the text of the Federal Constitution, which must be seen in view of the sieve to which the contested principle must be submitted. Indeed, there is no refusal to comply with the principle of conformity of the State Constitutions to the federal model, and thus generally, ex vi of art. 200 of the Federal Constitution, but notably with regard to the sensitive points or basic structures deliberately protected from any kind of deformation brought about by the state legislature (art. 13 of the Federal Constitution). Constitutional form that is absolutely imposed on the States is that which contains the division of competences, emerging from the principle of division of powers, support of the regime, whose compliance is ensured with the sanction of federal intervention (art. 13, I, coupled with article 10, VII, ‘c’, of Federal Constitution). [Rp No. 1.024, pg. 13-14]
Although extensive, the excerpt reflects the case law developed by the Brazilian Federal Supreme Court (STF) at the time. As with the rule of law and other deliberations of the Legislature, any form of reciprocal interaction and supervision between the Branches, instituted by the state constituent, could only be considered constitutional if it fit perfectly with the rule set by the federal constituent on the matter. However, the Court’s position became more flexible since the 1980s, when decisions were issued that pointed to a greater prestige of state autonomy. In this sense, we highlight two judgments: Appeal to the Supreme Court (RE) No. 95.778 and Rp No. 1.245. The first case, by the rapporteur of justice Clóvis Ramalhete was decided in 1982, and the majority of the constitutional provisions questioned were declared by a tight majority. We highlight the manifestation of the justices Néri da Silveira and Moreira Alves, who initiated debate on the meaning attributed to the federation according to the judgments of the Court. For Moreira Alves, determining a state constitution to apply a provision of the
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Federal Constitution does not automatically matter in the denial of federalism. In response, Néri da Silveira pointed out that the federalist problem is, in fact, to conclude “[...] that it is no longer a dualist federalism, but a new federalism” (Appeal to the Supreme Court (RE) No. 95.778, pg. 1071). This pointed to the delineation of a new argumentative structure. This position became more explicit in Rp No. 1.245, which was judged after the formal termination of the military regime in 1986, by the rapporteur of the Justice Oscar Corrêa. This was the only case of total rejection of the demand, declaring the constitutionality of the state norm. The rapporteur himself criticized the wording of Article 200 of Constitutional Amendment (EC) No. 1/1969, which had followed “the centralist, unitarian, anti-federalist line” (Rp No. 1.245, pg. 58), and that the phrase “where appropriate” was too vague, “[...] that everything admits” (Rp No. 1.245, pg. 60). The justice concluded his vote with a kind of message to the Court to pay attention to the new paradigm of federalism: “In fact, it is good that we prepare ourselves to understand our reality in this way, and even to stimulate the restoration of federalism, to which this Brazilian Federal Supreme Court (STF), on which much this revival depends a lot” (Rp No. 1.245, pg. 67— 68).
4. Final Considerations
The troubled period of the military dictatorship in Brazil brought relevant legal questions, as the authoritarian government based its actions on the basis of law, in order to give apparent arbitrariness apparent legitimacy. With respect to the state constituent power, its attributions became limited, with the promulgation of Federal Constitution of 1967 (CF-67) of the regulation of its art. 188 (Decree Law (DEL) No. 216/1967) and Constitutional Amendment (EC) No. 1/1969. These rules were, in fact, capable of altering the legal relationship between member states and the Federal Government, mitigating the basic idea of federalism, according to which entities must have autonomy to organize themselves. Thus, as the states promoted changes in their own constitutions, it was allowed to question these norms before the Brazilian Federal Supreme Court, in order to verify if the rules of the current Federal Constitution had been obeyed. The foundations of the Brazilian Federal Supreme Court (STF) were the subject of analysis of this research, because we intend to ascertain whether the Court attributed more or less extensive interpretation to the activity of the state constituent power. In addition, we intend to compare the attitude of
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the Brazilian Federal Supreme Court (STF) of the authoritarian period, with the case law of the period after the promulgation of 1988 Constitution of the Federative Republic of Brazil (CF-88) from Schlobach’s studies.76 After a detailed examination of the judgments of the authoritarian period, we conclude that the Court did not clearly define the limits established by art. 188 of Federal Constitution of 1967 (CF/67), whose concept varied according to the case, always pending the declaration of unconstitutionality of the state constitutional rule. In these situations, we highlight the avant-garde position of the ministers Aliomar Baleeiro and Victor Nunes Leal, who, although in the minority, produced robust and well-founded opinions on federalism in Brazil. In regards to art. 200 of Constitutional Amendment (EC) No. 1/1969, the Court followed the restrictive line and built the case law according to which states should strictly obey the limits of the Federal Constitution. In this sense, any state legal innovation, even more specific and limited than that of Constitutional Amendment (EC) No. 1/1969, was rejected. On the other hand, the advent of 1988 Constitution of the Federative Republic of Brazil (CF-88) coincided with the attempt to reconfigure Brazilian federalism along the lines of an equilibrium federalism, whose division of powers would strengthen state powers. The 1988 constituent sought to move away from hegemonic federalism, marked by excessive concentration of powers in the Union, as had prevailed in the military dictatorship.77 One of the aspects in which this attempt can be clearly seen is the rule for the elaboration of state constitutions. The current Constitution, unlike the texts of the authoritarian period, did not foresee centralizing mechanisms such as adaptation and incorporation, nor did it enumerate federal constitutional rules of mandatory observance. Art. 25, quite succinctly, seems to make clear that the 1988 constituent gave more freedom to adapt to the constitutional transition according to local peculiarities and preferences: states are organized and governed by the Constitutions and laws they adopt, observing the principles of this Constitution. Notwithstanding the innovative positions found at the end of the military period (especially in RE No. 95.778 and Rp No. 1.245, analyzed above), the Supreme Court case law did not follow the movement initiated by the constituent in 1988. Schlobach’s empirical research on the constitutionality control of post- 88 state constitutional norms points to some centralist behavior of the Court, which shall be reminiscent of the case law of the military dictatorship period.
76 Rafael Viotti Schlobach, Simetria federativa e separação de Poderes, op. cit. 77 HORTA, Raul Machado. Direito constitucional. 2. ed. Belo Horizonte: Del Rey, 1999. pg. 370.
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The research was dedicated to analyzing how the Brazilian Federal Supreme Court (STF) controlled the constitutionality of norms of the state constitutions in the face of a specific principle enshrined in the 1988 Constitution of the Federative Republic of Brazil (CF/88): the separation of powers. One of the main conclusions reached was that the Court has interpreted, in such cases, the principle of separation of powers as the set of rules present in the Federal Constitution regarding mechanisms of interaction and supervision between powers. The case law has established that, since no universal and abstract definition of the separation of powers is possible, the exact federal rule should be considered, for the purposes of controlling state norms — which, in fact, mitigates the very idea of separation of Powers as a principle, as it minimizes the chances of normative innovation.78 It was also concluded that the Brazilian Federal Supreme Court (STF) stifled innovations driven by state constituents by declaring the unconstitutionality of certain institutional arrangements created by states with no corresponding institution in the federal constitutional text. The Court has made the understanding that what is not expressly provided for and permitted by the Federal Constitution is prohibited79 — not the other way around, as one might imagine of a regime that prioritizes the autonomy of states and imposes on them only the observance of federal constitutional principles. We realize, then, that there are indications that the origin of this case law lies precisely in the period studied in this article. With the exception of a few justices, the post-88 Brazilian Federal Supreme Court (STF) seems to have appropriated analogous notions to the idea of “overadaptation” to declare the unconstitutionality of overstatement of state constitutional norms that innovate in relation to federal constitutional rule. Interestingly, in this sense, some direct actions of unconstitutionality that questioned the constitutionality of provisions of the state constitutions under the 1988 Constitution of the Federative Republic of Brazil (CF/88) system expressly mentioned precedents from the authoritarian period. Schlobach80 cites the case of ADIs Nos. 676 and 177, judged on July 1st, 1996, in which the rapporteur, Justice Carlos Velloso, mentioned Rp No. 1.024 (analyzed in this article) to justify the unconstitutionality of the Fluminense Constitution which required authorization from the Legislative Assembly for the execution of agreements
78 Rafael Viotti Schlobach, Simetria federativa e separação de Poderes, op. cit., pg. 93. 79 Ibid., pg. 96-98. 80 Ibid., pg. 52 and 122.
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by the Executive, which “goes beyond the external control agendas contained in the Federal Constitution”.81 Therefore, we conclude that the case law built by the Brazilian Federal Supreme Court (STF) during the military regime endures even in a new constitutional order that provides greater political autonomy to the states, attesting to the rooting of centralism that has long characterized Brazilian federalism.
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81 Ibid., pg. 75.
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