The Constitution of Brazil

A Contextual Analysis
Erscheinungsjahr 2019
ISBN: 978-1-5099-3507-9
Verlag: Bloomsbury Publishing PLC

Buch, Englisch, 296 Seiten, Paperback, Format (B × H): 216 mm x 139 mm, Gewicht: 380 g

Reihe: Constitutional Systems of the World

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.

Autoren/Hrsg.

Silva, Virgilio Afonso da

Silva, Virgílio Afonso da

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Mittel-/Südamerika
• Rechtswissenschaften Öffentliches Recht Staats- und Verfassungsrecht Verfassungsgeschichte, Verfassungsvergleichung

Inhaltsverzeichnis

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

Über Autor(innen)

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

Virgílio Afonso da Silva is Professor of Constitutional Law at the University of São Paulo.