Constitution Of Brazil
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The Constitution of the Federative Republic of Brazil ( pt, Constituição da República Federativa do Brasil) is the supreme law of
Brazil Brazil ( pt, Brasil; ), officially the Federative Republic of Brazil (Portuguese: ), is the largest country in both South America and Latin America. At and with over 217 million people, Brazil is the world's fifth-largest country by area ...
. It is the foundation and source of the legal authority underlying the existence of Brazil and the
federal government of Brazil The Federal Government of Brazil (''Governo Federal'') is the national government of the Federative Republic of Brazil, a republic in South America divided in 26 states and a federal district. The Brazilian federal government is divided in thre ...
. It provides the framework for the organization of the Brazilian government and for the relationship of the federal government to the states, to citizens, and to all people within Brazil.


Overview

The current Brazilian Constitution is the seventh enacted since the country's independence in 1822, and the sixth since the proclamation of the republic in 1889. It was promulgated on 5 October 1988, after a two-year process in which it was written from scratch.


History

The current Constitution of Brazil was drafted as a reaction to the period of
military dictatorship A military dictatorship is a dictatorship in which the military exerts complete or substantial control over political authority, and the dictator is often a high-ranked military officer. The reverse situation is to have civilian control of the m ...
, and sought to guarantee
individual rights Group rights, also known as collective rights, are rights held by a group '' qua'' a group rather than individually by its members; in contrast, individual rights are rights held by individual people; even if they are group-differentiated, which ...
and restrict the state's ability to limit freedom, to punish offences and to regulate individual life. Among the new constitutional guarantees are the errand of injunction and the ''
habeas data ''Habeas data'' is a writ and constitutional remedy available in certain nations. The literal translation from Latin of ''habeas data'' is “ e commandyou have the data,” or "you he data subjecthave the data." The remedy varies from country t ...
''. It also anticipated the existence of a Consumers' Defence Code (enacted in 1990), of a Children's and Youth Code (1990) and of a new Civil Code (2002). It was the first constitution to demand severe punishment for breaches of
civil liberties Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
and rights. Consequently, Brazil later approved a law making the propagation of
prejudice Prejudice can be an affective feeling towards a person based on their perceived group membership. The word is often used to refer to a preconceived (usually unfavourable) evaluation or classification of another person based on that person's per ...
against any minority or
ethnic group An ethnic group or an ethnicity is a grouping of people who identify with each other on the basis of shared attributes that distinguish them from other groups. Those attributes can include common sets of traditions, ancestry, language, history, ...
an unbailable crime. This law provided legal remedy against those who spread
hate speech Hate speech is defined by the ''Cambridge Dictionary'' as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". Hate speech is "usually thoug ...
or those who do not treat all citizens equally. This second aspect helped disabled people to have a reserved percentage of jobs in the public service and large companies, and
Afro-Brazilians Afro-Brazilians ( pt, afro-brasileiros; ) are Brazilians who have predominantly African ancestry (see " preto"). Most members of another group of people, multiracial Brazilians or ''pardos'', may also have a range of degree of African ancestry. ...
to seek reparation for
racism Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonism ...
in court. Breaking with the authoritarian logic of the previous Constitution, it made unbailable crimes those of torture and of actions directed against the
democratic state Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation ("direct democracy"), or to choose gover ...
and the constitutional order, thus creating constitutional devices to block coups d'état of any kind. The Constitution also established many forms of direct popular participation besides regular voting, such as plebiscite,
referendum A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
and the possibility of ordinary citizens proposing new laws. Examples of these democratic mechanisms were the 1993 plebiscite concerning the form of government, where the
presidential system A presidential system, or single executive system, is a form of government in which a head of government, typically with the title of president, leads an executive branch that is separate from the legislative branch in systems that use separati ...
was confirmed, and the 2005 firearms and ammunition referendum. The mention of God in the preamble of the Constitution (and later on the Brazilian currency) was opposed by most leftists as incompatible with
freedom of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
because it does not recognise the rights of
polytheists Polytheism is the belief in multiple deities, which are usually assembled into a pantheon of gods and goddesses, along with their own religious sects and rituals. Polytheism is a type of theism. Within theism, it contrasts with monotheism, the ...
such as some
indigenous peoples Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
or of
atheists Atheism, in the broadest sense, is an absence of belief in the existence of deities. Less broadly, atheism is a rejection of the belief that any deities exist. In an even narrower sense, atheism is specifically the position that there no d ...
. The
Supreme Federal Court The Supreme Federal Court ( pt, Supremo Tribunal Federal, , abbreviated STF) is the supreme court (court of last resort) of Brazil, serving primarily as the Constitutional Court of the country. It is the highest court of law in Brazil for consti ...
has ruled that this commission of the protection of God was not
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
since the preamble of the constitution is simply an indication of principles that serves as an introduction to the constitutional text and reflects the ideological conceptions of the legislator, falling within the scope of political ideology and not of the Law.


Criticism

The Federal Constitution of 1988 is criticized in the doctrine for being very extensive, long-winded and analytical. This characteristic forced the Constitution to be amended several times, in politically costly processes, to adapt to the changes in society Another criticism is that the 1988 Federal Constitution reproduces a model of
state capitalism State capitalism is an economic system in which the state undertakes business and commercial (i.e. for-profit) economic activity and where the means of production are nationalized as state-owned enterprises (including the processes of capital ...
, expanding state monopolies and regulations, which allowed the Brazilian state, in 2017, to have stakes in more than 650 companies, involved in one third of the national GDP. This model also created restrictions for the performance of foreign companies in several fields with harmful consequences for the country's growth. In the view of some scholars, this economic model favors
patrimonialism Patrimonialism is a form of governance in which all power flows directly from the ruler. There is no distinction between the public and private domains. These regimes are autocratic or oligarchic and exclude the lower, middle and upper classes ...
and
corruption Corruption is a form of dishonesty or a criminal offense which is undertaken by a person or an organization which is entrusted in a position of authority, in order to acquire illicit benefits or abuse power for one's personal gain. Corruption m ...
. Since the approval of the 1988 Federal Constitution, the homicide rate has grown 124% in Brazil and more than one million people have been murdered. While in the 1980s there were 11.7 homicides per 100 thousand inhabitants, in 2010 the rate reached 26.2 - an average increase of 2.7% per year. A portion of the doctrine has blamed the Constitution. Raul Jungmann criticized the fact that the Constitution gave states responsibility for public security, leaving the Union with only a residual role. This would have enabled the growth of factions such as the
Primeiro Comando da Capital Primeiro Comando da Capital (PCC; "First Command of the Capital", , 1533) is, according to a 2012 Brazilian Government report, the largest Brazilian criminal organization, with a membership of almost 20,000 members, 6,000 of whom are in prison ...
and the
Comando Vermelho Comando Vermelho (, ''Red Command'' or ''Red Commando''), also known as C.V. is a Brazilian criminal organization engaged primarily in drug trafficking, arms trafficking, protection racketeering, kidnappings-for-ransom, armored truck hijacking ...
. In the view of
Alexandre de Moraes Alexandre de Moraes (; born 13 December 1968 in São Paulo) is a Brazilian jurist, currently serving as president of the Superior Electoral Court and as a justice of the Supreme Federal Court. Life Married with three children, Alexandre de Mor ...
, Brazil confused the respect for the dignity of the human person with the leniency for criminal leaders. The Constitution is also responsible for leaving a slow procedural system. Brazil has the 30th slowest judiciary among 133 countries, according to the
World Bank The World Bank is an international financial institution that provides loans and grants to the governments of low- and middle-income countries for the purpose of pursuing capital projects. The World Bank is the collective name for the Interna ...
. This has caused the judiciary to use provisional arrests as an advance of the sentence. In 2015 more than 40% of prisoners in Brazil were provisional. A World Bank study criticized the 1988 Federal Constitution for extending the privileges of civil servants, aggravating income inequality in Brazil. 9Remuneration and retirement are disproportionately high according to studies. In 2015, the federal government's deficit with the retirement of the approximately 1 million government employees was greater than the total registered with 33 million private pensioners. For the World Bank, civil servants are among the richest fifth of the Brazilian population. For Roberto Brant, the Federal Constitution was captured by groups of civil servants in 1988. Philosopher Fernando Schüler maintains that Brazil went against the grain in the 1980s: "While the world tried to adjust the State to globalization and modernize public management, Brazil bet on a super bureaucratic state in the 1988 Constitution. We offer rigid stability in the employment for civil servants, we mix careers of State with common careers of the public service, we create the law of biddings, we cast the budgets and we eliminate any space for the meritocracy in the public area. " For jurist Modesto Carvalhosa, only a new "principiological" constitution would end the privileges of the 1988 Constitution. The Federal Constitution of 1988 is also criticized for having adopted one of the broadest Special Forums due to the prerogative of function in the world, jurists understand that this extension encourages corruption. A quarter of the actions with a Privileged Forum take more than ten years to be judged. The
Supreme Federal Court The Supreme Federal Court ( pt, Supremo Tribunal Federal, , abbreviated STF) is the supreme court (court of last resort) of Brazil, serving primarily as the Constitutional Court of the country. It is the highest court of law in Brazil for consti ...
takes 1,300 days to judge criminal actions by persons with privileged jurisdiction. Between 2001 and 2017, 200 actions involving the Privileged Forum expired. Also criticized is the requirement of unappealable transit for the execution of the sentence. For Judge
Sérgio Moro Sergio Fernando Moro (; born 1 August 1972) is a Brazilian jurist, former federal judge, college professor and politician. He was elected to be a member of the Federal Senate for Paraná in October 2022. In 2015 he gained national attention ...
, waiting for the final judgment will contribute to impunity. According to Minister Teori Zavascki after confirming a second sentence, one could no longer speak of the principle of non-culpability, since "the exceptional remedies, for the superimposition courts, do not boast the ability to review facts and evidence". In the United Nations, 193 of the 194 countries have a first or second arrest. In the electoral aspect, the Constitution adopted the mandatory vote. Among the 15 largest economies in the world, Brazil is the only country in which voting is mandatory. A 2014 survey showed that the mandatory vote is rejected by 61% of Brazilians. Some indoctrinates question whether it is democratic to compel people to vote. The Constitution adopted the social democratic model of State organization, as defined by the columnist for the newspaper O Estado de S. Paulo Luiz Sérgio Henriques. For professor and lawyer Marco Aurélio Marrafon, president of the Brazilian Academy of Constitutional Law, the 1988 Brazilian Magna Carta organized the State according to the Welfare State model, in which it is intended to reconcile "the liberal component of preservation of individual rights and limitation of state power, with direct economic intervention and the promotion of public policies, in order to redistribute resources and reduce social inequalities ". In order to finance the Welfare State, it was necessary to raise the tax burden, which went from 23.4% of GDP in 1988, to 33.6% of GDP in 2005, and to link budget revenues. Thus, the Union reached 93% of mandatory spending in 2017, decreasing the room for maneuver by the government and affecting investments. This political option is criticized by some indoctrinators. Doctrines criticize an alleged excessive power granted to the
Order of Attorneys of Brazil The Order of Attorneys of Brazil (National Bar Association of Brazil) (Portuguese: ''Ordem dos Advogados do Brasil'') is the Brazilian Bar Association, founded in 1930. It is an organization of lawyers and responsible for the regulation of the le ...
by the Constitution. Brazilian philosopher and journalist Hélio Schwartsman considers that the 1988 Constitution conferred "disproportionate powers" on lawyers "such as appointing judges, writing laws, proposing direct actions of unconstitutionality, defining who can and who cannot become a lawyer".
Roberto Campos Roberto de Oliveira Campos (17 April 1917 – 9 October 2001) was a Brazilian economist, writer, diplomat, politician and member of the Academia Brasileira de Letras, Brazilian Academy of Letters. He served in a number of capacities, including ...
, economist, ex-senator and Minister of Planning of Brazil in the early years of the military dictatorship noted that "The OAB has achieved the feat of being mentioned three times in what he defines as the "besteirol Constitution" of 1988. According to him, "it's perhaps the only case in the world where a club of professionals has enshrined the constitutional text."


Contents

The Constitution of Brazil is composed of nine titles, subsequently divided into chapters and then articles. The articles are in turn divided into short clauses called ''incisos'' (indicated by
Roman numerals Roman numerals are a numeral system that originated in ancient Rome and remained the usual way of writing numbers throughout Europe well into the Late Middle Ages. Numbers are written with combinations of letters from the Latin alphabet, eac ...
) and ''parágrafos'' (indicated by numbers followed by §). The Constitution refers to the country as "the Union". e


Title 1

Title 1 is devoted to the fundamental principles of the Union. It describes the States, the
municipalities A municipality is usually a single administrative division having corporate status and powers of self-government or jurisdiction as granted by national and regional laws to which it is subordinate. The term ''municipality'' may also mean the go ...
and the
Federal District A federal district is a type of administrative division of a federation, usually under the direct control of a federal government and organized sometimes with a single municipal body. Federal districts often include capital districts, and they e ...
as the indissoluble constituents of the Union. It also establishes three independent, harmonic government branches: the
Executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive dir ...
, the
Legislative A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known as p ...
and the
Judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, and lists the nation's main goals. One of the most important excerpts from this title is in Article 1, single paragraph, stating:


Title 2

Title 2 states the Fundamental Safeguards. It ensures basic rights to all citizens and foreigners residing in the Country, prohibits
capital punishment Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
, defines citizenship requirements,
political rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life o ...
, among other regulations.


Title 3

Title 3 regulates the state organization. It establishes
Brasília Brasília (; ) is the federal capital of Brazil and seat of government of the Federal District. The city is located at the top of the Brazilian highlands in the country's Central-West region. It was founded by President Juscelino Kubitsche ...
as the nation's capital, describes the rights and duties of the states, the municipalities, as well rules for the public staff.


Title 4

Title 4 is about the branches of government. It describes the attributes for every government branch, and the rules for
amendment An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
s to the Constitution as well.


Title 5

Title 5 regulates the defense of the State and its democratic institutions. It rules the deployment of the
armed forces A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typically authorized and maintained by a sovereign state, with its members identifiable by their distinct ...
, the
national security National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
baselines, and declaration of
state of emergency A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state du ...
.


Title 6

Title 6 comprises
taxation A tax is a compulsory financial charge or some other type of levy imposed on a taxpayer (an individual or legal person, legal entity) by a governmental organization in order to fund government spending and various public expenditures (regiona ...
and the nation's budget. It disposes on budget distribution among the Union's components and their competencies, and the nation's budget.


Title 7

Title 7 rules the economic activities in the country, the agricultural and urban policies, as well the state monopolies. * The Constitution allows the Brazilian government to "expropriate, for the purpose of
agrarian reform Agrarian reform can refer either, narrowly, to government-initiated or government-backed redistribution of agricultural land (see land reform) or, broadly, to an overall redirection of the agrarian system of the country, which often includes land re ...
, rural property that is not performing its social function." (Article 184) * According to Article 187, the social function is performed when rural property simultaneously meets the following requirements: ** rational and adequate use; ** adequate use of available natural resources and preservation of the environment; ** compliance with the provisions which regulate labor relations; and ** exploitation which favors the well-being of the owners and workers.


Title 8

Title 8 is about the social order. It establishes the Social Security system, the Public Health system, the Public Pension system, among regulations concerning education, culture, science and technology, and sports policies.


Title 9

Title 9 encompasses general constitutional dispositions. Among those, there are sparse regulations, as well as transitional dispositions.


References


External links

* (full text - English translation edited by the Chamber of Deputies - download free e-book at "Baixar grátis" button, or buy physical book
Constitution of Brazil
* (full text
Constitution of Brazil
extracted from the website of the Chamber of Deputies ; * (full tex
Constitution of the Federative Republic of Brazil
pdf; 432 pages * (full text


Legislação brasileira traduzida para o Inglês
official English translations of the Constitution, and dozens of other Brazilian laws
Constitution of the Federative Republic of Brazil
fficial MPF translation {{Authority control