The Constitution of Brazil

This book offers an original and comprehensive analysis of Brazilian constitutional law and shows how the 1988 Constitution has been a cornerstone in Brazil's struggle to achieve institutional stability and promote the enforcement of fundamental rights. In the realm of rights, although much has been done to decrease the gap between constitutional text and constitutional practice, several types of inequalities still affect and sometimes impair the enforcement of the ambitious bill of rights laid down by the Brazilian Constitution. Within the organisation of powers, the book not only describes how its legislative, executive and judicial functions are organised, but above all else, it analyses how a politically fragmented National Congress, a powerful President and an activist Supreme Court engage with each other in ways that one could hardly grasp by reading the constitutional text without contextual analysis. Similarly, the book also shows how the three-tiered federation established in 1988 has undergone a process of centralisation led not only by the central government but also by the Brazilian Supreme Court. In addition to chapters on organisation of powers, fundamental rights, federalism, and the legislative process, the book also presents an overview of Brazilian constitutionalism with a special focus on the transition from authoritarianism to democracy, which led to the enactment of the 1988 Constitution. In the conclusion, the author argues that part of the Constitution's transformative potential remains to be realised. Enforcing the Constitution, not changing it, has been the real challenge in the last three decades and will continue to be for many years to come.

Autorentext

Virgílio Afonso da Silva is Professor of Constitutional Law and Director of the research cluster Constitution, Politics & Institutions at the University of São Paulo.

Inhalt

I. An Overview of the 1988 Constitution
II. Fundamental Rights
III. Presidential System
IV. Federalism
V. A Note on Translations and References

1. A Long and Winding Road to the 1988 Constitution
   I. An Overview of Brazilian Political Organisation from 1500 until 1822
   II. Brazilian Constitutions Before 1988
   III. The Constitution-Making Process of 1987-88
   IV. The Legitimacy of the 1988 Constitution
   Further Reading
2. The Legislature: Bicameralism, Multipartism, and Ongoing Crisis
   I. Composition, Seat, and Basic Organisation
   II. Electoral System
   III. Exclusive Powers of the Federal Senate
   IV. Parliamentary Immunities
   V. Removal from Office
   VI. Investigative Powers
   VII. Financial Control and the Federal Audit Court
   VIII. Ongoing Legitimacy Crisis (But Still Powerful)
   Further Reading
3. The Executive: A Strong President and Coalitional Presidentialism
   I. The Election of the President of the Republic
   II. Replacement, Succession, Impediments and Vacancy of Office
   III. A Strong President Before a Weak Congress?
   IV. Brazil's Coalitional Presidentialism
   V. Attempts to Change the Brazilian Presidential System
   VI. Presidentialism Under Attack
   VII. Treaty-Making Power
   VIII. Regulatory Powers
   IX. The Vice-President
   X. The Ministers of State
   XI. Impeachment and Removal from Office
   XII. Emergency Powers
   XIII. Public Administration and Regulatory Agencies
   XIV. Armed Forces
   Further Reading
4. The Judiciary: Independence, Activism, and Publicity
   I. The Brazilian Justice System
   II. The Brazilian Supreme Court (STF)
   III. The Brazilian System of Judicial Review of Legislation
   IV. Concrete Judicial Review of Legislation
   V. Abstract Constitutional Review of Legislation
   VI. An Activist Court?
   VII. Functions Essential to Justice
   Further Reading
5. Rights: Enforcing Civil Liberties in an Unequal Society
   I. The Bill of Rights of the 1988 Constitution
   II. Holders of Fundamental Rights
   III. Horizontal Effects of Fundamental Rights
   IV. Right to Life
   V. Equality
   VI. Freedom of Expression
   VII. Freedom of the Press
   VIII. Freedom of Information
   IX. Right to Privacy
   X. Freedom of Assembly
   XI. Secularism and Freedom of Religion
   XII. Property Rights
   XIII. Access to Courts and Due Process
   XIV. Nationality
   XV. Political Rights
   XVI. Political Parties
   XVII. Treaties on Human Rights
   XVIII. The Inter-American Human Rights System
   XIX. Constitutional Remedies
   Further Reading
6. Beyond Liberal Constitutionalism: Social Rights and the Social and Economic Orders
   I. Social Rights and Social Order
   II. Socioeconomic Rights in Courts
   III. The Social Order Beyond Social Rights: The Environment and Indigenous Peoples
   IV. The Economic Order
   Further Reading
7. Federalism: Cooperation and Increasing Centralisation
   I. Centralisation and Decentralisation until 1889
   II. Allocation of Powers under the 1988 Constitution
   III. Legislative Powers
   IV. Policy Powers
   V. The States in the Brazilian Federalism
   VI. A Three-Tiered Federation: Municipalities
   VII. The Federal District
   VIII. Federal Territories
   IX. Federal Intervention
   X. The Federal Senate
   Further Reading
8. Law-Making Process and Constitutional Reform
   I. Ordinary Legislation
   II. Provisional Decrees
   III. Complementary Legislation
   IV. Constitutional Reform
   Further Reading
   Conclusion: Change to Overcome