The article deals with the subjects of the political system of Brazil, particularly their legal status in the government. Particular attention is given to the characteristic features of the legislative, executive and judicial branches of power, and their competence. The author reveals some features of the system of regulations adopted by government entities.
Brazil is a presidential republic. In the presidentialism the president is the head of state and the head of government. There is independence between the legislature and the president of the republic, which does not need to justify government actions to parliament in the same manner, which the parliamentary system does. The president is not a member of the legislature, but an independent institution that has direct popular legitimacy. The people choose president directly.
Presidentialism characterizes the Brazilian political system. Since the founding of the Republic of Brazil, Brazil has always been a presidential regime, except for a short period in the 1960s when there was a parliamentary system. The Constitution of 1988 called for a popular referendum to choose between a parliamentary and a presidential system of government. The people decided in 1993 to elect the presidential system.
- The legislative power
The main functions of the legislature power are to legislate and control. The legislative branch makes the so-called primary normative acts, which are characterized by creating new law. No one shall be obliged to do or refrain from doing something except by virtue of laws. Law is an exclusive act of the legislature branch. The legislature oversees government spending and has the power to investigate irregularities.
In according to the Brazilian Constitution the legislative power is exercised by the National Congress, which is composed of the Chamber of Deputies and the Federal Senate.
The Chamber of Deputies is formed by representatives of the people, elected by the proportional system in each State and in the Federal District. Proportional system is a system through which it ensures the different political parties in Parliament a representation corresponding to the numerical strength of each one.
The total number of Deputies, as well as the representation of the states and of the Federal District shall be established by a supplementary law, in proportion to the population, and the necessary adjustments shall be made in the year preceding the elections, so that none of those units of the Federation has less than eight or more than seventy Deputies.
According to Article 14 of constitution the sovereignty of the people shall be exercised by universal suffrage and by the direct and secret voting, with equal value for all. In Federation, in which the election of federal deputies occurs in each state, the weight of each vote differs from state to state. For example, to elect a federal deputy from the State of Sao Paulo one needs more than 300,000 votes. However, in the State of Amapa in northern Brazil (Amazonia), one needs no more than 22,000 votes.
It is exclusively the competence of the Chamber of Deputies: (i) to authorize, by two-thirds of its members, legal proceeding to be initiated against the President and the Vice-President of the Republic and the Ministers of State; (ii) taking of accounts of the President of the Republic, when they are not presented to the National Congress within sixty days of the opening of the legislative session; (iii) to draw up its internal regulations; (iv) to provide for its organization, functioning, police, creation, transformation or extinction of offices, positions and functions of its services, and the establishment of their respective remuneration, taking into account the guidelines set forth in the law of budgetary directives; (v) to elect the members of the Council of the Republic.
The Federal Senate is composed of representatives of the states and of the Federal District, elected by a majority vote. Majority vote is as being more than half all eligible votes cast.
Each state and the Federal District shall elect three Senators for a term of office of eight years. Onethird and two-thirds of the representation of each state and of the Federal District shall be renewed every four years, alternately. Each Senator shall be elected with two substitutes.
It is exclusively the competence of the Federal Senate: (i) to effect the legal proceeding and trial of the President and Vice-President of the Republic for crime of malversation and the Ministers of State for crimes of the same nature relating to those; (ii) to effect the legal proceeding and trial of the Justices of the Supreme Federal Court, the Attorney-General of the Republic and the Advocate-General of the Union for crimes of malversation; (iii) to give prior consent, by secret voting, after public hearing, on the selection of (a) judges, in the cases established in this Constitution; (b) Justices of the Court of Accounts of the Union appointed by the President of the Republic; (c) Governor of a territory; (d) president and directors of the Central Bank;
(e) Attorney-General of the Republic; (f) holders of other offices, as the law may determine; (iv) to give prior approval, by secret voting, after closed hearing, on the selection of heads of permanent diplomatic missions:
(v) to authorize foreign transactions of a financial nature, of the interest of the Union, the states, the Federal District, the territories and the municipalities; (vi) to establish, as proposed by the President of the Republic, total limits for the entire amount of the consolidated debt of the Union, the states. the Federal District and the municipalities; (vii) to provide for the total limits and conditions for foreign and domestic credit transactions of the Union, the states, the Federal District and the municipalities, of their autonomous Government entities and other entities controlled by the Federal Government; (viii) to provide for limits and conditions for the concession of a guarantee by the Union in foreign and domestic credit transactions; (ix) to establish total limits and conditions for the entire amount of the debt of the states, the Federal District and the municipalities;
to stop the application, in full or in part, of a law declared unconstitutional by final decision of the Supreme Federal Court; (xi) to approve, by absolute majority and by secret voting, the removal from office of the Attorney-General of the Republic before the end of his term of office; (xii) to draw up its internal regulations; (xiii) to provide for its organization, functioning, police, creation, transformation or extinction of offices, positions or functions of its services and establishment of their respective remuneration, taking into account the guidelines established in the law of budgetary directives; (xiv) to elect the members of the Council of the In the cases of the legal proceeding and trial for crime of malversation the Chief Justice of the Supreme Federal Court shall act as President and the sentence, which may only be issued by two-thirds of the votes of the Federal Senate, shall be limited to the loss of office with disqualification to hold any public office for a period of eight years, without prejudice to other applicable judicial sanctions.
The National Congress has its own powers. The National Congress is formed by joining the Chamber of Deputies and the Federal Senate. According to Article 49 of the constitution it is exclusively the competence of the National Congress among others: (i) to decide conclusively on international treaties, agreements or a which result in charges or commitments that go against the national property; (ii) to authorize the President of the Republic to declare war, to make peace and to permit foreign forces to pass through the national territory or remain therein temporarily, with the exception of the cases provided by a supplementary law; (iii) to approve a state of defense and federal intervention, authorize a state of siege or suspend any of these measures; (iv) to stop the normative acts of the Executive Power which exceed their regimental authority or the limits of legislative delegation; (v) to examine each year the accounts rendered by the President of the Republic and to consider the reports on the execution of Government plans; (vi) to authorize a referendum and to call a plebiscite. The Directing Board of the National Congress shall be presided by the President of the Federal Senate and the remaining offices shall be held, alternately, by the holders of equivalent offices in the Chamber of Deputies and in the Federal Senate.
- Parliamentary immunity
Deputies and Senators have substantive immunity and procedural immunity. Substantive immunity means that they enjoy inviolability on account of their opinions, words and votes. They are not held accountable for the opinions they issue. On the other hand, procedural immunity means that Congress may suspend litigation against deputies and senators. The argument for this immunity is the principle of separation of powers, in which a member of a power (legislative power) cannot be judged by another power (the judiciary) without an agreement.
Deputies and Senators, from the date of issuance of the certificate of election victory, shall be tried by the Supreme Federal Court. From the date of issuance of the certificate of election victory, the members of the National Congress may not be arrested, except in flagrante delicto of a non-bailable offense. In such case, the case records shall be sent within twenty-four hours to the respective House, which, by the vote of the majority of its members, shall decide on the arrest. Upon receiving an accusation against a Senator or Deputy, for an offense committed after the issuance of the certificate of election victory, the Supreme Federal Court shall inform the respective House, which, by the initiative of a political party therein represented and by the vote of the majority of those House members, may, until such time as a final decision is issued, stay consideration of the action. The request for stay shall be examined by the respective House within the unextendable period of forty-five days as from its receipt by the Directing Board. The stay of proceedings shall suspend the limitation for the duration of the term of office.
- Impediments
Deputies and Senators may not: (i) after the issuance of their certificate of electoral victory: (a) sign or maintain a contract with a public legal entity, autonomous Government agency, public company, mixedcapital company or public utility company, unless the contract is in accordance with uniform clauses; (b) accept or hold a paid office, function or position including those from which they may be dismissed ad nutum in the entities mentioned in the preceding subitem; (ii) after taking office: (a) be the owners, controllers or directors of a company which enjoys benefits arising from a contract with a public legal entity or perform a remunerated position therein; (b) hold an office or function from which they may be dismissed ad nutum, in the entities mentioned in item i, a; (c) act as lawyer in a cause in which any of the entities referred to in item I, a, has an interest; (d) be the holders of more than one public elective position or office.
- Loss of parliamentary mandate
A Deputy or Senator shall lose his office: (i) if he violates any of the prohibitions established in the constitution (art. 54); (ii) if his conduct is declared incompatible with parliamentary decorum; (iii) if he fails to appear, in each legislative session, at one-third of the regular sessions of the House to which he belongs, except for a leave of absence or a mission authorized by the House concerned: (iv) if his political rights have been lost or suspended; (v) whenever decreed by the Electoral Courts, in the cases established in the Constitution; (vi) if he is criminally convicted by a final and unappealable sentence.
- Parliamentary inquiry committees
Parliamentary inquiry committees, which shall have the powers of investigation inherent to the judicial authorities, in addition to other powers set forth in the regulations of the respective Houses, shall be created by the Chamber of Deputies and by the Federal Senate, jointly or separately, upon the request of one-third of its members, to investigate a given fact and for a certain period of time, and their conclusions shall, if the case may be, be forwarded to the Public Prosecution to determine the civil or criminal liability of the offenders.
- The legislative process
The legislative process comprises the preparation of: (i) amendments to the Constitution; (ii) supplementary laws; (iii) ordinary laws; (iv) delegated laws; (v) provisional measures; (vi) legislative decrees and Amendments to the Constitution
The Constitution may be amended on the proposal of: (i) at least one-third of the members of the Chamber of Deputies or of the Federal Senate; (ii) the President of the Republic; (iii) more than one half of the Legislative Assemblies of the units of the Federation, each of them expressing itself by the relative majority of its members.
The Constitution shall not be amended while federal intervention, a state of defense or a state of siege is in force. The proposal shall be discussed and voted upon in each House of the National Congress, in two readings, and it shall be considered approved if it obtains in both readings, three-fifths of the votes of the respective members. An amendment to the Constitution shall be promulgated by the Directing Boards of the Chamber of Deputies and the Federal Senate with the respective sequence number.
No proposal of amendment shall be considered which is aimed at abolishing: (i) the federative form of State; (ii) the direct, secret, universal and periodic vote; (iii) the separation of the Government Powers;
- individual rights and
The matter dealt with in a proposal of amendment that is rejected or considered impaired shall not be the subject of another proposal in the same legislative session.
- Supplementary laws and ordinary laws
Supplementary laws are used in situations where the constitution requires. The difference between a supplementary law and an ordinary law is the quorum of approval. Supplementary laws shall be approved by absolute majority. Ordinary laws shall be approved by a majority vote, when the absolute majority of its members is present.
- Delegated laws
Delegated laws shall be drawn up by the President of the Republic, who shall request delegation from the National Congress. There shall be no delegation of acts falling within the exclusive competence of the National Congress, of those within the exclusive competence of the Chamber of Deputies or the Federal Senate, of matters reserved for supplementary laws and of legislation on: (i) the organization of the Judicial
Power and of the Public Prosecution, the career and guarantees of their members; (ii) nationality, citizenship, individual, political and electoral rights, (iii) pluriannual plans, budgetary directives and budgets. The delegation to the President of the Republic shall take the form of a resolution of the National Congress, which shall specify its contents and the terms of its exercise. If the resolution calls for consideration of the bill by the National Congress, the latter shall do so in a single voting, any amendment being forbidden.
- Provisional measures
In important and urgent cases, the President of the Republic may adopt provisional measures with the force of law and shall submit them to the National Congress immediately. The issuance of provisional measures is forbidden when the matter involved: (i) deals with: (a) nationality, citizenship, political rights, political parties, and election law; (b) criminal law, criminal procedural law, and civil procedural law;
(c) organization of the Judicial Branch and of the Public Prosecution, the career and guarantees of their members; (d) pluriannual plans, budgetary directives, budgets, and additional and supplementary credits, with the exception of the opening of extraordinary credit to meet unforeseeable and urgent expenses, such as those resulting from war, internal commotion or public calamity; (ii) is reserved for a supplementary law;
(iii) has already been regulated by a bill of law passed by the National Congress which is awaiting sanction or veto by the President of the Republic.
(v) Legislative decrees and Resolutions
Legislative decrees and resolutions are used to regulate matters of exclusive power of the legislature. They differ from ordinary laws and supplementary laws because they do not require sanction from the President of the Republic.
- The right of (legislative) initiative
The initiative of supplementary and ordinary laws is within the power of any member or committee of the Chamber of Deputies and the Federal Senate or the National Congress, the President of the Republic, the Supreme Federal Court, the Superior Courts, the Attorney-General of the Republic and the citizens, in the manner and in the cases provided for the constitution.
It is the exclusive initiative of the President of the Republic to introduce laws that: (i) determine or modify the number of Armed Forces troops; (ii) provide for: (a) creation of public offices, functions or positions in the direct administration and in autonomous Government agencies or increases in their salaries;
(b) administrative and judicial organization, tax and budgetary matters, public services and administrative personnel of the territories; (c) government employees of the Union and Territories, their legal statute, appointment to offices, tenure and retirement; (d) organization of the Public Prosecution and of the Public Legal Defense of the Union, as well as general rules for the organization of the Public Prosecution and the Public Legal Defense of the states, the Federal District and the territories; (e) creation, structuring and duties of the Ministries and public administration agencies; (f) military of the Armed Forces, their legal statute, appointment to offices, promotions, tenure, remuneration, retirement, and transfer to the reserve.
The initiative of the people may be exercised by means of the presentation to the Chamber of Deputies of a bill of law subscribed by at least one percent of the national electorate, distributed throughout at least five states, with not less than three-tenths of one percent of the voters in each of them.
It is the exclusive initiative of the Chief Justice to introduce the supplementary law that provides for the Statute of the Judicature. The Attorney-General of the Republic has the power to introduce the bill of law in parliament that provides for the Statute of the Public Prosecution.
The discussion and voting of the bills of law which are the initiative of the President of the Republic, the Supreme Federal Court and of the Superior Courts shall start in the Chamber of Deputies.
The President of the Republic may request urgency in the examination of bills of his own initiative.
A bill of law approved by one House shall be reviewed by the other in a single reading of discussing and voting and sent for sanctioning or promulgation, if approved by the reviewing House, or it shall be dismissed, if rejected. If the bill is amended, it shall return to the House where it was proposed.
The House in which voting is concluded shall send the bill of law to the President of the Republic, who, if he concurs, shall sanction it.
If the President of the Republic considers the bill of law, wholly or in part, unconstitutional or contrary to public interest, he shall veto it.
After a period of fifteen days, the silence of the President of the Republic shall be considered as sanctioning.
The veto shall be examined by Congress within thirty days and may only be rejected by the absolute majority of the Deputies and Senators, by secret voting.
- Accounting, financial and budgetary control
Control of accounts, finances, budget, operations and property of the Union and of the agencies of the direct and indirect administration, as to lawfulness, legitimacy, economic efficiency, application of subsidies and waiver of revenues, shall be exercised by the National Congress, by means of external control and of the internal control system of each Power.
Accounts shall be rendered by any individual or public entity which uses, collects, keeps, or manages public monies, assets or values.
External control, incumbent on the National Congress, shall be exercised with the aid of the Federal Court of Accounts.
The Legislative, Executive and Judicial Powers shall maintain an integrated system of internal control for the purpose of: (i) evaluating the attainment of the goals established in the pluriannual plan, the implementation of government programmes and of the budgets of Union; (ii) verifying the lawfulness and evaluating the results, as to effectiveness and efficiency, of the budgetary, financial and property management in the agencies and entities of the federal administration, as well as the use of public funds by private legal entities;
(iii) exercising control over credit transactions, collateral signatures and guarantees, as well as over the rights and assets of the Union; (iv) supporting external control in the exercise of its institutional mission.
The persons responsible for internal control shall, upon learning of any irregularity or illegality, inform the Court of Accounts of the Union about it, subject to joint liability.
Any citizen, political party. association or labour union has standing under the law to denounce irregularities or illegalities to the Federal Court of Accounts.
- The executive power
The Executive Power is exercised by the President of the Republic assisted by the Ministers of State.
The election of the President and Vice-President of the Republic shall take place simultaneously, on the first Sunday of October, in the first round, and on the last Sunday of October, in the second round, as the case may be, of the year preceding the one in which the current presidential term of office ends. The election of the President of the Republic shall imply the election of the Vice-President registered with him.
The candidate who, being registered by a political party, obtains an absolute majority of votes, not counting blank or void votes, shall be considered elected President. If no candidate attains an absolute majority in the first voting, another election shall be held within twenty days from the announcement of the results, the competition being between the two candidates with the highest number of votes, and being considered elected the candidate with the majority of valid votes.
The President of the Republic may be reelected for only one subsequent term.
The President and the Vice-President of the Republic shall take office in a session of the National Congress, pledging to maintain, defend and carry out the Constitution, obey the laws, promote the general wellbeing of the Brazilian people, sustain the union, the integrity and the independence of Brazil.
In the event of impediment of the President and of the VicePresident or of vacancy of the respective offices, the President of the Chamber of Deputies, the President of the Senate and the Chief Justice of the Supreme Federal Court shall be called successively to exercise the Presidency.
In the event of vacancy of the offices of President and Vice-President of the Republic, elections shall be held ninety days after the occurrence of the last vacancy. If the vacancy occurs during the last two years of the President's term of office, the National Congress shall hold elections for both offices thirty days after the last vacancy as established by law. In any of the cases, those elected shall complete the term of office of their predecessors.
The term of office of the President of the Republic is four years, and it shall commence on January 1 of the year following the year of his election.
The President of the Republic shall have among others the exclusive power to: (i) appoint and dismiss the Ministers of State; (ii) exercise, with the assistance of the Ministers of State, the higher management of the federal administration; (iii) start the legislative procedure, in the manner and in the cases set forth in the Constitution; (iv) sanction, promulgate and order the publication of laws, as well as to issue decrees and regulations for the true enforcement thereof; (v) veto bills, wholly or in part; (vi) provide for the organization and operation of the federal administration, as established by law; (vii) maintain relations with foreign States and to accredit their diplomatic representatives; (viii) conclude international treaties, conventions and acts, ad referendum of the National Congress; (ix) decree the state of defense and the state of siege; (x) decree and enforce federal intervention; (xi) upon the opening of the legislative session, send a government message and plan to the National Congress, describing the state of the nation and requesting the actions he deems necessary; (xii) exercise the supreme command of the Armed Forces, to promote general officers and to appoint them to the offices held exclusively by them; (xiii) appoint, after approval by the Senate, the Justices of the Supreme Federal Court and those of the superior courts, the Governors of the territories, the Attorney-General of the Republic, the President and the Directors of the Central Bank and other civil servants, when established by law; (xiv) appoint, with due regard for the provisions of article 73, the Justices of the Federal Court of Accounts; (xv) appoint judges in the events established by this Constitution and the Advocate-General of the Union; (xvi) appoint members of the Council of the Republic; (xvii) call and preside over the Council of the Republic and the National Defense Council; (xviii) declare war, in the event of foreign aggression, authorized by the National Congress or confirmed by it, whenever it occurs between legislative sessions and, under the same conditions, to decree full or partial national mobilization; (ixx) make peace, authorized or confirmed by the National Congress; (xx) award decorations and honorary distinctions;
(xxi) permit, in the cases set forth by supplementary law, foreign forces to pass through the national territory, or to remain temporarily therein; (xxii) submit to the National Congress the pluriannual plan, the bill of budgetary directives and the budget proposals set forth in this Constitution; (xxiii) render, each year, accounts to the National Congress concerning the previous fiscal year, within sixty days of the opening of the legislative session; (xxiv) issue provisional measures, with force of law.
Those acts of the President of the Republic which attempt on the Federal Constitution and especially on the following, are crimes of malversation: (i) the existence of the Union; (ii) the free exercise of the Legislative Power, the Judicial Power, the Public Prosecution and the constitutional Powers of the units of the Federation; (iii) the exercise of political, individual and social rights; (iv) the internal security of the country;
probity in the administration; (vi) the budgetary law; (vii) compliance with the laws and with court decisions. These crimes shall be defined in a special law, which shall establish the rules of procedure and If charges against the President of the Republic are accepted by two-thirds of the Chamber of Deputies, he shall be submitted to trial before the Supreme Federal Court for common criminal offenses or before the Federal Senate for crimes of malversation.
- The judicial power
The following are the bodies of the Judicial Power: (i) the Supreme Federal Court; (ii) the National Council of Justice; (iii) the Superior Court of Justice; (iv) the Federal Regional Courts and the Federal Judges; (v) the Labour Courts and Judges; (vi) the Electoral Courts and Judges; (vii) the Military Courts and Judges; (viii) the Courts and Judges of the states and of the Federal District. The Supreme Federal Court, the National Council of Justice, and the Superior Courts have their seat in the Federal Capital.
The admission as judge is by means of a civil service entrance examination of tests and presentation of academic and professional credentials, with the participation of the Brazilian Bar Association in all phases, obeying the order of classification for appointments.
All judgments of the Judicial Power shall be public, and all decisions shall be justified, under penalty of nullity, but the law may limit attendance, in given acts, to the interested parties and to their lawyers, or only to the latter, whenever preservation of the right to privacy of the party interested in confidentiality will not harm the right of the public interest to information.
With the exception of the Supreme Federal Court, which has specific rules of composition, the court judges are chosen between judges, lawyers and prosecutors.
The constitutional reform of the Judicial Power in 2004 created the National Council of Justice. It is incumbent upon the National Council of Justice to control the administrative and financial operation of the Judicial Branch and the proper discharge of official duties by judges, and it shall, in addition to other duties that the Statute of the Judicature may confer upon it: (i) ensure that the Judicial Branch is autonomous and that the Statute of the Judicature is complied with, and it may issue regulatory acts within its jurisdiction, or recommend measures; (ii) ensure that principles of public administration (principles of lawfulness, impersonality, morality, publicity and efficiency) is complied with, and examine, ex-officio or upon request, the legality of administrative acts carried out by members or bodies of the Judicial Branch, and it may revoke or review them, or stipulate a deadline for the adoption of the necessary measures to achieve due execution of the law, without prejudice to the powers of the Federal Audit Court; (iii) receive and examine complaints against members or bodies of the Judicial Branch, including against its ancillary services, clerical offices, and bodies in charge of notary and registration services which operate by virtue of Government delegation or have been made official, without prejudice to the courts’ disciplinary competence and their power to correct administrative acts, and it may order that pending disciplinary proceedings be forwarded to the National Council of Justice, determine the removal, placement on paid availability, or retirement with compensation or pension in proportion to the length of service, and enforce other administrative sanctions, full defense being ensured; (iv) present a formal charge to the Public Prosecution, in the case of crime against public administration or abuse of authority; (v) review, ex-officio or upon request, disciplinary proceedings against judges and members of courts tried in the preceding twelve months; (vi) prepare a twice-a-year statistical report on proceedings and judgements rendered per unit of the Federation in the various bodies of the Judicial Branch; (vii) prepare a yearly report, including the measures it deems necessary, on the state of the Judicial Branch in the Country and on the Council’s activities, which report must be an integral part of a message to be forwarded by the Chief Justice of the Supreme Federal Court to the National Congress upon the opening of the legislative session.
- The functions essential to justice
The public prosecution (Ministério Público), the public advocacy, advocacy and the public legal defense are essential functions to justice.
Public prosecution (Ministério Público) is an institution that upholds the collective and diffuse interests of society, such as environment, historical heritage, arts and culture and the correct use of public resources.
Public advocacy is an institution that provides legal advice to the state. The Advocacy-General of the Union is the institution which represents the Union judicially or extrajudicially, and it is responsible for judicial consultation and assistance to the executive power. The Attorneys of the states and of the Federal District shall exercise judicial representation and judicial consultation for their respective federated units. The Attorneys of the municipalities shall exercise judicial representation and judicial consultation for their respective municipalities.
According to Article 133 of the Brazilian Constitution, a lawyer is indispensable to the administration of justice and is inviolable for his acts or manifestations in the exercise of his profession, within the limits of the law.
The public legal defense is an essential institution to the jurisdictional function of the state and is responsible for legal advice to people who do not have financial conditions to pay a lawyer.