WEBINAR 3: AMERICAS - From Hardball to Packing the Court: “PEC do Pyjama” and the Attempt to Attack the Brazilian Supreme Court
Katya KOZICKI & Rick PIANARO
16 November 2020
A proposed amendment to the Brazilian constitution, which seeks to lower the retirement age of public employees, like justices of the Supreme Court, as will be argued, has the goal of weakening Brazilian democracy by threatening judicial independence.
In a relatively recent blog post published in 2015, Professor Diego Werneck Arguelhes stated that the "Bengal Proposal" (‘bengala’ in Portuguese meaning a cane or walking support; employed as an epithet for increasing the forced retirement age to older justices) transformed into Constitutional Amendment No. 88, while oblivious to any serious discussion about the Supreme Court, was the Amendment Proposal of disrespect to the Supreme Court.
More commonly known as the “Bengal Amendment”, amendment No. 88/2015 was presented as a proposal in 2003 by Senator Pedro Simon. It aimed to increase the age of compulsory retirement for all public servants in the country from 70 to 75 years. Its justification was the increase in life expectancy since the enactment of the 1988 Constitution and the resulting maintenance costs, over much longer periods, for the physical and mental care of these employees.
In 2005, the proposal was voted on, and approved, in the Federal Senate and sent to the House of Representatives where it lay dormant until 2015. At that time Congressman Eduardo Cunha, president of the House of Representatives, called a vote on the proposal.
Following the use of an expedited procedure, the final text of the amendment was put to a vote. In the end, the age of 70 was maintained as the rule, but a provision was also created to allow the possibility (of limited effectiveness, contingent on the issue of a supplementary law) of mandatory retirement at age 75. The amendment also modified the Transitory Constitutional Provisions Act (ADCT) to immediately raise the mandatory retirement age for members of the Supreme Court, the Superior Courts and the Court of Auditors.
It is true that analysis of the norm cannot be dissociated from analysis of the political context at the time, which is important for obtaining more refined conclusions about the institutional repercussions expected following its approval. President Dilma Rousseff's second term of office began in 2015. Rousseff was re-elected to the presidency by a narrow margin in a second round run-off and found a Congress far less receptive to her agenda. Add to this the deteriorating economic outlook and the conditions for a serious political crisis were satisfied.
Before accepting the request for impeachment that would culminate in Dilma's removal from office, the President of the House of Representatives, Deputy Eduardo Cunha, sought to limit the executive's powers through a hardball[i] environment, or, as Rubens Glezer has translated and conceptualized well in soccer jargon, ‘constitutional catimba’. The author uses the term catimba to represent, in a language accessible to the Brazilian public’s collective imagination, the idea of "actions of public agents who seek advantages in the midst of relevant conflicts through expedients of questionable legitimacy, despite being clearly or plausibly legal."[ii] The Bengal Proposal is the result of a compromise between the executive and the legislature - which instrumentalized but did not directly involve the judiciary. Its tacit objective, as several actors noted at the time³, was to avoid the appointments of members connected to Dilma to the higher courts and the Federal Audit Court.
Arguelhes, when analyzing the arguments used by parliamentarians who defended the amendment (i.e., the increase in life expectancy of the average Brazilian citizen, as well as the experience accumulated of the current justices) concluded that none of them could rationally justify the change.
First, the life expectancy of a justice cannot be compared to that of an ordinary citizen. Second, life expectancy should not be a metric to justify the increase in the compulsory requirement age which aims to renew the composition of the court.
Another criticism was made by Thomaz Pereira, who stressed the casuistry of the proposal in the National Congress. After all, it took more than 10 years after the proposal was approved in the Senate before the House of Representatives decided to consider it. In other words, the composition of the Federal Senate in 2015 was quite different from that which approved the bill in 2005 and could refuse it. The approval, however, had remained frozen in time until Eduardo Cunha, opportunistically, decided to unfreeze it.
In conclusion, insofar as the “Bengal Amendment” is concerned, it cannot be said that Eduardo Cunha's constitutional stance in undermining Dilma Rousseff around retirement in higher courts was aimed at weakening, eliminating or co-opting the Supreme Court. This is because, despite the deliberate intention to challange the government for circumstantial reasons, raising the retirement age of Supreme Court members Is not tantamount to an actual attack on the court.
The “Pyjama Proposal”[iii] (epithet employed for the forced retirement of the justices), paraphrasing Bruno Boghossian[iv], is the proposal to revoke the Bengal Amendment. It was presented in October 2019 by Representative Bia Kicis (Social Liberal Party; PSL, deputy leader in the House of Representatives and member of the party that elected President Jair Bolsonaro. There is only one argument: the need to "oxygenate" the Supreme Court with an air of readiness.[v] At the time, there was talk of the immediate retirement of Ricardo Lewandowski and Rosa Weber if Amendment 88 of 2015 was repealed, increasing from two to four the judicial appointments to be made during Bolsonaro’s term.
Moving from the Bengal Amendment to the Pyjama proposal, we leave Tushnet’s baseball field and Glezer’s soccer pitch to enter a boxing ring. It may seem absurd to contemplate that the immediate retirement of two Supreme Court justices would allow the President, who publicly challenges the Court, to appoint new members who are naturally better aligned with his ideology. It is not.
In Poland[vi] in 2017, in a scenario of burning authoritarianism, the Law and Justice Party passed legislation to lower the retirement age of members of higher courts. The members who had already passed the new retirement age were summarily retired and a provision allowed the President of the Republic to reappoint judges of retirement age. The European Court of Justice ordered the suspension of the law’s application[vii] and, before a final judgment was issued, all members immediately retired were reappointed.
Back to Brazil, it is patently clear that the Pyjama Proposal violates basic principles of the Constitution, such as the stability of constitutional rules and the principle of irremovability (security of tenure) and eternity (life-time tenure) of magistrates[viii]. It is not reasonable, a little more than four years after the enactment of a constitutional amendment changing the retirement age of public servants, to propose a new amendment revoking the former without offering serious and relevant arguments for this change. In addition, the constitutional principles of irremovability and eternity are intended to protect the independence of the judiciary, prohibiting its members’ removal or promotion without consent.
The proposal represents, quite obviously, an attempt by the President of the Republic and his allies to co-opt the Supreme Court. The mere consideration of such a proposal is reprehensible, as both a threat to constitutional stability and a clear violation of constitutional guarantees granted to members of the judiciary.
As in the Polish case, there is a deliberate intent in the proposal to effectively attack the judiciary. The intention is, clearly, to eliminate disaffection or even ‘create’ new vacancies. The Polish constitutional crisis offers valuable insights which can be applied to threats to democracy in Brazil, underscoring the risks but also opening the way toward some early reflection on possible ways to mitigate attempts to pack the Brazilian courts.
Revoking the Bengal Amendment with the Pyjama Proposal means treating the system of checks and balances of the constitution with the disdain of an autocrat who, instead of submitting to the rules imposed by constitutionalism, intends to bend them to his will, adapting the institutions to his desires, and sculpting the democracy that surrounds him.
[i] Constitutional Hardball, in Mark Tushnet's definition, denotes a state of affairs in which government actors engage in conduct that challenges pre-established norms to exploit constitutional institutions. One example would be the Republicans’ obstruction of Merrick Garland's appointment to the U.S. Supreme Court, which was held up for more than a year in the U.S. Senate, at the end of the Obama administration . Republican senators, in opposition, acted within the rules of Congress to frustrate the Democrats. The latter argued that the maneuver was inconsistent with constitutional purposes and it was within the legislature's duties to consider the president's nomination. The maneuver was successful and when President Trump took office Garland's nomination was replaced by that of Neil Gorsuch, thereby maintaining the Court's conservative majority.
See: TUSHNET, Mark. Constitutional Hardball. 37 J. Marshall L. Rev. 523 (2004).
[ii] We would like to thank to Professor Rubens Glezer for the debates with CCONS/UFPR and for making available his paper entitled “Catimba Constitucional: Cortes Constitucionais, Hardball e Crise”.
[iii] Amendment proposal n. 159/2019 from the Chamber of Representatives. See: https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2223878.
[iv] “Allies of Bolsonaro attempt a pajama coup in the Supreme Court”. See: https://www1.folha.uol.com.br/colunas/bruno-boghossian/2019/02/aliados-de-bolsonaro-tentam-dar-um-golpe-do-pijama-no-supremo.shtml
[v] See https://www.conjur.com.br/2018-nov-16/deputados-ligados-jair-bolsonaro-revogar-pec-bengala and https://www.metropoles.com/brasil/politica-brasil/pec-da-bengala-entenda-o-que-e-e-por-que-ela-volta-a-cena.
[vi] See MASTRACCI, Matteo. The Rule of Law and the Judicial Retirement Age in Poland: Is the ECJ Judgment the End of the Story? Int’l J. Const. L. Blog, 2019, Available in: http://www.iconnectblog.com/2019/the-rule-of-law-and-the-judicial-retirement-age-in-poland-is-the-ecj-judgment-the-end-of-the-story/.
[vii] See https://www.bbc.com/news/world-europe-45917830.
[viii] Members of the apex courts in Brazil can serve for life-time tenure until the mandatory age to retire.
Katya Kozicki is Full Professor of Theory of Law at Federal University of Paraná and Pontifical Catholic University of Paraná, Brazil. She was a Visiting Associate Researcher at the Centre for the Study of Democracy, University of Westminster, London, (1998–1999) and a Visiting Research Scholar at Benjamin N. Cardozo School of Law, New York, (2012–2013). Her research areas include: constitutionalism and democracy, constitutional theory, theory of law, and legal hermeneutics. She was a member of the CAPES Law Evaluation Committee (2008–2010 triennium) and a representative of the Araucária Foundation’s Law Area (2013–2016). She is a Brazilian National Council for Research (CNPq) research fellow. Her works include: “Taking Justice Seriously: legal interpretation and judicial responsibility” (Belo Horizonte: Arraes Editores, 2012) and “Herbert Hart and legal positivism: legal open texture and judicial discretion” (Curitiba: Juruá Editora, 2014). Current project under development: “Shared Authority: jurisdiction between positivism and antipositivism”.
Rick Daniel Pianaro is an LLM Candidate, Federal University of Paraná, Brazil. Current project under development: Democratic decay and constitutional setback: perspectives of Brazilian constitutionalism. Areas of research: constitutionalism and democracy. Lawyer.