INCONSTITUCIONALIDADE DA EMENDA CONSTITUCIONAL Nº 96/2017 E VAQUEJADA: O RECONHECIMENTO DO INTERESSE E DIREITO MÍNIMO DOS ANIMAIS NÃO-HUMANOS A NÃO SEREM SUBMETIDOS À CRUELDADE COMO LIMITADOR DO DIREITO FUNDAMENTAL À CULTURA

Abstract

This paper aims to analyze the unconstitutionality of the 96th Constitutional Amendment, which added paragraph 7 to Article 225 of the Brazilian Constitution, determining that there is no cruelty in sports practices deemed cultural that use animals, as long as these practices are considered intangible cultural heritage belonging to the national cultural heritage. This norm reflexes a backlash effect to the ruling made by the Brazilian Federal Supreme Court on the Direct Action of Unconstitutionality 4983, which pronounced the unconstitutionality of a law from the state of Ceará that regulated vaquejada under the reason of its cultural aspect. The amendment is also a validation of Federal Law 13,364 of 2016, which gave rodeos, vaquejadas and similar practices the intangible cultural heritage trait. This paper deals specifically with the legal endorsement given by the Amendment to vaquejadas, a sports and cultural practice originated in Brazilian northeastern rural areas centuries ago, still present to these days and remodeled to a highly profitable business activity that fosters jobs and drives local economy. However, when studying reports and technical opinions, animal cruelty is revealed to be intrinsically linked to vaquejadas, being a direct violation of the animalistic protection disposed in the first paragraph, item VII of article 225 of the Constitution, a norm that contains a fundamental nature. This raises questions about a conflict between the norm that protects the fundamental cultural right and the fundamental prerogative of animals to not be submitted to suffering. A deep analysis, nonetheless, reveals this to be an apparent conflict, since article 225 and its first paragraph, item VII expresses a prior and constitutional material limitation to the cultural right, being an Entrenchment Clause, and an implicit material limitation asserted by the precautionary principle, non-regression in environmental law principle and the human dignity in its ecological dimension principle. To achieve the results described, this paper was made through the dialectical method, with the exposure of two opposing views, namely, vaquejada, inherently cruel to animals, as a practice that demands protection under the guise of cultural rights and the existence of prerogatives ensuring the integrity of non-human animals, with the confrontation between these two views, with the conclusion being the unconstitutionality of the seventh paragraph of article 225. The historical procedure method was also used by placing the object of this study under a historical analysis perspective. Lastly, these methods were engaged through data collection in books, jurisprudential records, legislations and periodicals.