PANEL SESSIONS II TUESDAY JUNE 26 2018 9.00 AM – 10.30 AM

Room: CYTT 8.24

  • CONSTITUTIONAL REFORMS IN TIMES OF ECONOMIC AND POLITICAL CRISIS: THE ROLE OF COURTS
    Constitutional reforms often occur under moments of national crisis, mainly economic and political ones. Recent economic crisis around the globe have intensified the adoption of austerity policies, reducing public spending in health system, labor and pension rights. Furthermore, political crisis in the representative government have generated self-protection measures for the maintenance of politicians in office, for example: infinite reelection, disrespect to opposition and minority groups. Usually, constitutional reforms that bring these changes lack opportunities for debate and deliberation, popular support is absent as well, jeopardizing therefore the legitimacy of constitutional amendments. This workshop: (a) it will explore the different impacts of recent economic and political crisis on constitutional design; (b) from a normative and empirical dimensions, it will debate how courts respond to austerity policies and political self-protection measures.
  • Unconstitutional constitutional amendments: can a strong judicial review avoid abusive constitutionalism?
    The Brazilian Constitution is perhaps one of the few Constitutions in the World that brings in its role of immutable clauses a larger and more restrictive nucleus of the Power of reform. If on the one hand this limitation may be seem as undemocratic, it can be justified in order to avoid an abuse in the reform of its nucleus in moments of crisis. In fact, abusive Constitutionalism has demonstrated abuse in constitutional reforms, whether by Amendments or new constituent processes to keep Presidents in power and weaken the checks and balances. Thus, this paper intends to discuss how the Brazilian Supreme Court (Supremo Tribunal Federal) has faced the issue of judicial review of constitutional amendments and whether there is a change in their behavior to be more activist or more deferent in times of economic crises or policies. Thus, the proposed question is: can a strong judicial review of Constitutional Amendments by the Judiciary avoid abusive constitutionalism in Brazil?
  • Social rights in times of economic crisis: the role of the courts
    Crisis is the word to sum up the present situation in Western constitutional discourse. The co-causality is unconcealed: economic problems are products and producers, at the same time, of constitutional problems experienced. The project of constituent social democracy became the focus of reforms; the prediction of social rights and guarantees came under heavy attack. Other reasons that corroborate as much or more with the blunder in the public accounts – as for example, the increase of the public expenses – were not attacked (with the same intensity). Given this scenario, the Courts plays a relevant role in safeguarding social and economic rights. Nowadays, there is a strong aversion to judicial protagonism, moreover in issues that borders of Law and politics. However, this distaste position cannot serve as an excuse to the absence of the implementation of economic and social rights. The challenge is to think ways to do it without nurturing a robust model of judicial review.
  • When 5×4 is not a winning majority: judicial decision-making on unconstitutional constitutional amendments
    The main democratic critiques on the strong judicial review tend to disregard the constitutional amendment as a mechanism to mitigate judicial supremacy. For political constitutionalism, supermajority rules do not offer equal treatment, as this rule favors the maintenance of the status quo by making changes more difficult to occur. Underlying this assertion is the belief political equality depends on a decision-making process in which all opinions have the same value, through simple majority. However, both constitutional courts and constitutional amendments are part of the vast majority of contemporary democratic societies. We start from this context to demonstrate how judicial review can be reconnected with the democratic potential of constitutional amendments. The use of supermajority rules in the deliberation of the constitutional courts, unlike what happens in parliaments, serves to make a decision to reject the amendment more difficult, bearing in mind its democratic status.
  • Who will protect social rights in times of economic crisis? Exploring the legal parameters of judicial intervention in Brazilian public policies
    Are the courts able to defend social rights against the will of the majority powers in times of economic crisis? The legal literature affirms the role of the Judiciary as the guardian of the Constitution and consequently, guarantor of these rights against Government‘s choices. In contrast, empirical studies show that, in analyzing the preferences of the majoritarian branches in relation to public policies, the Courts opt for self-restraint. In the last global crisis, the Courts maintained the austerity measures, in order to guarantee recovery and stability (Portugal, Spain, Italy). Considering the recent processes of constitutional reform to decrease public spending, notably in relation to issues of public health, education and social security, what to expect from Brazilian Supreme Court (STF)? The goal is to analyze the judicial review decisions in those matters and describe the legal arguments for judicial intervention (or not) in last constitutional reforms.