The Constitution of Brazil: A Contextual Analysis

Description

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. Acknowledgements Table of Contents List of Abbreviations Table of Cases Table of Legislation Introduction 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 Index