Brazil’s legal system is considered to follow Civil Law (1). As opposed to common law which decides cases in court through past rulings and legal precedents, civil law uses specific ordinances and classified statutes in order to rule (2). For Brazil, the constitution is the supreme law of the land (1), so essentially every law or ruling must be mentioned in the constitution so judges can make decisions on cases with confidence (2). Therefore, Brazil’s constitution is amended constantly so its constitution includes all these rules and laws; currently, the constitution has been amended 77 times (3).
With Brazil’s civil law the amendment process is relatively flexible, as one can imagine with 77 amendments. In order to propose an amendment, at least one third of the members of the Chamber of Deputies, the lower house, or at least one third of the members of the Senate must propose it (4). In addition, the President or more than half of the Legislative Assemblies can propose an amendment too (4). If the Senate proposed the amendment, then the Senate is the first to examine the proposal; otherwise the Chamber of Deputies first examines it (4). In order for the amendment to be approved, the Chamber of Deputies’ Commission of Justice first needs to accept the proposal (3). Next, there needs to be approval by a special commission created by the President of the Commission of Justice (3). Then, the houses can start to approve it. The Chamber of Deputies is the first house to get the opportunity, voting two times on the proposal and only needing 3/5 of the members to approve it both times (3). Before the Senate votes, the proposal needs approving from the Senate’s Commission of Justice (3). Then, in turn the Senate can approve it exactly like the Chamber of Deputies did, again voting two times and needing 3/5 of the members’ approval in both votes (3). Once both houses approve the proposal, the amendment is passed (3) and publicized by the President of the last house that voted (4). If however either the Chamber of Deputies or the Senate doesn’t approve, then the proposal is archived (4).
During the amendment process, the proposed amendment has the opportunity to be modified by either house (4). If one of the houses modifies an amendment, then the modified amendment must return to the other house and be voted on again (4). Because amendments can be modified and modifications happen to be frequent in Brazil, the proposed amendment often travels back and forth between houses and commissions, making the amendment process meandering as opposed to simply linear (3).
According to Webster’s 1828 dictionary, a covenant is “a meeting of the minds with mutual consent or agreement of two or more persons”. (5). During Brazil’s constitution adoption in 1988, a Constitutional Congress, or “a meeting of the minds” wrote their constitution from scratch, ensuring that all rights were guaranteed for citizens (6). This essentially means that popular sovereignty is supreme, which in turn entails that re-covenanting must be allowed (7). Like Brazil’s constitution adoption, covenanting is an occurrence during the amendment process as both houses, the President, and the Commissions of Justice must approve the amendment proposal. Furthermore, Brazil has many amendments; if Brazil had no amendments, then perhaps there’s a growing drift between the people and the constitution (7), and therefore, people can’t covenant on amendments. However, Brazil has many amendments and various people agreeing to them, showing the covenantal nature of the amendment process and ensuring that Brazil maintains its popular sovereignty.
Because Brazil has civil law and tries to include every law in its constitution, one would think the need for informal amendments would be unnecessary since the interpretations are in the constitution. However, Brazil does have aspects of judicial review. Brazil allows certain authorities where they can directly question a constitutional issue to a special constitutional court (8). These authorities include the President, state governors, political parties representing the National Congress, confederative unions, and the Executive Committees of the Senate, Chamber of Deputies, and legislative assemblies (8). In addition, Brazil allows courts to declare unconstitutionality in the absence of regulations through Mandado de Injunção (8). This ensures that Brazilian citizens are granted fundamental rights even when the rights are violated (8). It also relieves pressure on the legislature when it fails to pass a law since citizens will continue to be protected through this judicial review (8).
Works Cited
1. “The Brazilian Legal System.” http://www.oas.org/juridico/mla/en/bra/en_bra-int-des-ordrjur.html
2. “Civil Law v. Common Law” http://www.diffen.com/difference/Civil_Law_vs_Common_Law
3. “Introduction to the Brazilian Constitution.” http://thebrazilbusiness.com/article/introduction-to-the-brazilian-constitution 4. “Constitution of Brazil.” http://www.v-brazil.com/government/laws/laws.html
5. “The Covenantal Nature of Our U.S Constitution.” http://www.metrovoice.net/www.metrovoice.net/2008/1008_stlweb/1008_articles/covenantal_nature_of_constitution.html
6. “Constitution of Brazil.” http://www.factualworld.com/article/Constitution_of_Brazil
7. Kenneth McElwain. Powerpoint week 10.2, slide 9.
8. “Brazil’s Hybrid System of Judicial Review.” http://www.lawteacher.net/administrative-law/essays/brazils-hybrid-system-of-judicial-review-administrative-law-essay.php
The process of constitutional amendment in Brazil is, as noted by Jared, based on Civil Law. This places a lot of power into the hands of the judicial branch in regards to the final outcome of constitutional amendments. This power is given to the Supreme Federal Tribunal in Art. 102, which says that “The Supreme Federal Tribunal has primary responsibility for safeguarding the Constitution…” and goes on to list the various powers given and goes on to note that decisions made by the Supreme Federal Tribunal in regards to unconstitutionality are binding to all government administrations.1 Amending the Constitution of Brazil is not particularly difficult. Art. 60 states who may lay out an amendment and that after two rounds of voting, an amendment is successful if it obtains a three-fifths majority in both rounds of voting.2 Lijphart notes in his book, Patterns of Democracy, that this method of a simple two-thirds majority is a very common rule for many constitutional amendment requirements. On his scale of constitutional rigidity, this would rank in at 3.0.3 It is important to note the power given to the judiciary in Brazil, in consideration to their history. In Elkins, Ginsburg, and Melton’s work, they note a historical precedent in Brazil’s history of their then president throwing out their constitution in favor of one that didn’t restrict his power or prevent him from running for re-election.4 Furthermore, the rule for Brazil’s amendment process may be influenced by the length of the document, noted in Elkins, which has been criticized for its length.5 The result of this is a greater need for amendment, as such a bulky constitution would naturally have more amendments, as noted by Jared that it has been amended 77 times in the last 26 years of its existence.
ReplyDelete1. Article 102 Brazilian Consititution
2. Article 60 Brazilian Consititution
3. Lijphart, Arend. Patterns of Democracy pg. 220
4. Elkins, Zachary, Ginsburg, Tom, Melton, James. The Endurance of National Constitutions. pg. 73
5. Ibid. 84
As Jared and Zachary both mentioned, the constitutional amendment process of Brazil is covenantal due to the inclusion of both legislative houses, the President, and the Commissions of Justice in the amendment process. Furthermore the amendment process is subject to popular opinion. Last year the Brazilian congress rejected a proposed amendment- PEC 37- that assigned the power to conduct criminal investigations exclusively to the police thereby removing the investigative capacities of federal prosecutors (1). Due to fears that this amendment would foster corruption and biased investigation mass protests lead to a defeat of the amendment by more than 430 votes in both houses (1). The Brazilian amendment process is not only institutionally covenantal, insofar as it necessitates multiple governmental veto players, but just like the constitutional ratification process, it is contingent on broad heterogeneous citizen support. Constitutional amendments are not difficult. As both Jared and Zachary assert, all that is needed is a two round vote in both legislative houses with a 3/5 majority to pass (2). I would only qualify by adding that popular support is also a necessary condition in the amendment process.
ReplyDeleteBrazil also has a prolific judicially centered informal amendment process. As Jared asserts the Supreme Court does not follow the stare decisis doctrine through which the court would be empowered to use previous precedents in current rulings (3). Yet the Brazilian court is empowered to utilize concrete and abstract review mechanisms of constitutional amendments (4). The court is empowered to determine whether laws are textually lawful and constitutional and whether laws “in the abstract” are constitutional in their intent (4). Pursuant to these judicial review capabilities, the court can utilize direct unconstitutionality suits, declaratory actions of constitutionality, direct unconstitutionality suits due to omission (ADO) and claims for non-compliance of a fundamental precept to challenge amendments by virtue of their constitutionality or interpret and limit them in a way that would be constitutional (4). Furthermore the court is empowered to utilize a writ of error in cases where it is determined that in practice an amendment is not constitutional. In such cases the court is empowered to reinterpret its practice or condemn it as unconstitutional (4). Through these powers assigned to the court for active judicial review the Supreme can change the intention, interpretation or practice of constitutional amendments thereby creating an informal judiciary based amendment system.
1. Salek, Silvia. "Brazil Congress Rejects Controversial Amendment." BBC NEWS. N.p., n.d. Web.
2. Article 60 Brazilian Constitution
3. http://www.loc.gov/law/help/legal-research-guide/brazil-legal.php#t9
4. Mendes, Gilmar. "FRAMEWORK OF THE BRAZILIAN JUDICIARY AND JUDICIAL REVIEW." Supremo Tribunal Federal (n.d.): n. pag. Web.
Alex Gaggino
ReplyDeleteThe constitution of Brazil is not extremely difficult to amend. As my team has noted, in just 26 years the constitution has been amended 77 times. The most recent amendment is Article 246 prohibiting the adoption of any provisional measure for the regulation of any article of the Constitution the wording of which has been altered by means of an amendment enacted as of 1995 (1). This provision is an example of what the threshold is for Brazil in terms of how willing they are to amend the constitution. As it often helps to compare, I think the amendment process for the Brazilian constitution is more flexible and open than the amendment process of the United States.
While many “informal amendments” go through the formal amendment making process in Brazil and become additions onto Brazil’s continuously growing constitution, many of what would be considered informal amendments go through a simpler process and become provisional measures enacted by the president. Provisional measures come with a considerable amount of power so amendments have been made like Article 246 to regulate them (3).
The discussion question mentions that the amendment rule is often identical to the process by which the constitution was originally ratified. It is worth mentioning that the 1988 Brazilian constitution was ratified by the national constituent assembly in a two-year process that was very different from the amendment process that they drafted which is Article 60. The constitutional adoption process was covenantal and so is the amendment process, but the two processes are still very different considering the Brazilian government was not divided into branches during the drafting process (2).
Vishal explained very clearly in his comment the function of Brazil’s active judicial review process. The core values are rooted deep in the Brazilian constitution but it is also used to work out many kinks Brazil has experienced with this constitution seeing that it is still fairly young.
1. Article 246, Brazilian Constitution
2. THE FEDERAL MILITARY JUSTICE IN THE BRAZILIAN CONSTITUTION OF 1988
3. ANALYSIS OF THE LEGISLATIVE FRAMEWORK IN THE BRAZILIAN POLICYMAKING PROCESS < bd.camara.gov.br/.../analysis_legislative_ferri.pd>
Brendan Barnes
ReplyDeleteAs some of the other group members have mentioned, the Brazilian system utilizes civil law and has a particularly powerful supreme court. Though different from the system of judicial review in the United States, the Brazilian courts have been granted authority in determining constitutionality.
Firstly, the Brazilian supreme court has a considerable amount of influence in determining the outcome of any process of constitutional amendment. The manifestation of this power is influenced by the country’s history as a military dictatorship because it led to a Constitution that specifies articles/principles that have been deemed fundamental and unamendable so as to limit the possibility of slipping back into authoritarianism. Since there are articles that cannot be altered by amendment, the Supreme Court has the power to judge the constitutionality of any amendment in much the same way that it judges the constitutionality of ordinary laws (1).
Brazil’s historical context has further facilitated the preeminence of the Courts in other ways. As a result of the post-authoritarian context, “inscribing into the constitution the demands of each social movement was a symbolic and legitimizing act… Everthing that was seen as relevant for the state to promote/protect had to be included, even if in the most generic form, and even if its implementation was left to statutory law (2).” Not surprisingly, this resulted in a long, yet very broad and often unspecific Constitution which makes it possible for virtually every legislative decision to be questioned by the courts.
Through its ability to judge the constitutionality, the Supreme Court has significant influence over ordinary legislative outcomes as well as constitutional amendment outcomes.
(1)/(2) Mendes, Conrado. (2005). “Judicial Review of Constitutional Amendments in the Brazilian Supreme Court.” p. 452-454