Legislative immunities and constitutional reform: the constitutionality of the constitutional amendment nº 35/2001

• Grant number: 20/09927-3
• Support type: Scholarships in Brazil - Scientific Initiation
• Effective date (Start): July 01, 2021
• Effective date (End): December 31, 2021
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal researcher: José Duarte Neto
• Grantee: Yasmin Fernandes Soares da Silva
• Home Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

The legislative immunities are protective instruments of the Legislative Branch. Even if immediately attributed to Federal Deputies and Senators, imposing them prohibitions and entitling guarantees, they mediately safeguard the Legislative Houses. Indispensable to the democratic order, they make political citizenship effective by ensuring legislative activity independent of excess of authority of the other powers. They were present in all Brazilian Constitutions, being austere in authoritarian political regimes. The freedom of speech and the freedom from arrest are externalized in Article 53 of the Federal Constitution. Historically, they have experienced two moments: that of the original wording of the Constitution and that of the modification implemented by Constitutional Amendment nº 35/2001. Starting from the understanding that legislative immunities are Institutional Guarantees and, as such, a Fundamental Right; own of the Separation of Powers regime and safeguarded by entrenched clauses (Article 60, Paragraph 4º, Items III and IV, Federal Constitution), this research will appraise if the reform incurred in unconstitutionality. It is an investigation that requires confront of our legal-constitutional historical tradition and the discovery of the original constitution-making power intent by the study of its annals (1987/1998) and constitutional amendment bills nº 2/1995 and nº 610/1998. The research has the practical objective of suggesting whether the change undertaken was adequate or if another one is necessary. (AU)