The Evolution of Brazil’s Hybrid System of Judicial Review
Brazil’s judicial system is often criticized for its judicial review. The upper and lower courts seem too separate, and their power seems unequal. Why is judicial review so different in Brazil than in other countries? What makes the Brazilian form of judicial review so distinct and inefficient is the fact that Brazil includes aspects from both the American decentralized approach, as well as a more European centralized approach to judicial review, both of which, since their establishments in the Brazilian judicial system, have undergone changes during periods such as the dictatorship of Getúlio Vargas, the period of military rule, and during various points after the county’s shift toward democracy to evolve and merge the approaches into the unique, hybrid system it is today.
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Brazil has adopted the American decentralized, or diffuse, approach in the aspect that any private party can bring constitutional issues before an ordinary court in any sort of judicial proceedings (Sato, 3). The American Model was adopted during the Old Republic, and its aspect of judicial review has quite a history (Rosenn, 19).
The Brazilian Republic replicated the American system of politics because in the 19th century, they thought very highly of the rapidly aspiring country (Pereira, 3). Even under Imperial rule, Brazilian intellectuals were drawn to America’s political ideas (3). They included a system of judicial review that did not exist in the imperial Constitution of 1824, which was influenced by European politics (Couto, 17). Ruy Barbosa preferred a decentralized system and brought judicial review to the courts of Brazil by including its central provisions in the draft of the Constitution of 1891 (19). After a while, Brazil’s courts began exercising this American practice more often. In any legal proceeding, courts could exercise judicial control (Sato, 5).
However, in 1930, the Old Republic came to an end and the dictator Getúlio Vargas came into power (Sato, 7). Vargas strengthened his dictatorship by changing the Constitution. The Constitution of 1937 dramatically transformed the American model of decentralized judicial review; Article 96 said that the Brazilian Supreme Court could no longer question constitutionality (Freire). Some lawyers liked this because it rightly gave the power to the executive and complied with the separation of powers (Freire). Article 96 was done away with and the judicial review of the Constitution of 1891 was resurrected after the end of Vargas’ dictatorship in 1945 in hopes to move toward the popular trend of democracy (Couto, 20).
The decentralized system of judicial review was greatly limited after the military government was established in 1964 (Rosenn, 23). Institutional Act no. 5 excluded most politically controversial cases from judicial review (Couto, 25).
Three years after Brazil’s shift to democracy in 1985, the current Constitution was put into play and removed many of these exceptions to judicial review (Taylor, 269). To help protect the most important individual rights when they were violated, the new Constitution adoptedMandado de Injunção under this decentralized system (Freire).Mandado de Injunção is proceedings to acquire a judicial order granting a citizen fundamental rights that are present in the Constitution, but at the time, not regulated by lower law or regulation; in other words, it permits courts to declare unconstitutionality in the absence or regulations (Couto, 27). This was introduced because in the past, nothing could be done when the legislature failed to enact regulations or laws (28). In America, a seemingly similar remedy called an injunctive relief is a court-ordered act or ban against an act that has been requested, and possibly granted, in a petition to the court for a ban (Freire).Mandado de Injunção may have been somewhat inspired by its American counterpart, but although their names appear similar, they are quite different in the sense that the Brazilian court plays a limited and passive role (Freire). There have been disputes about whether the court has the power to make general rules, or whether that power is invested in the legislative and the court can only voice their opinion to the legislative power. In that sense,Mandado de Injunção isn’t entirely effective (Sato, 17). Throughout its history, Brazil has worked on establishing this decentralized form of judicial review. However, at the same time, Brazil has had another type of judicial review thrown in to make their system the hybrid one it is today.
Along with its decentralized system, Brazil has included a centralized, or concentrated, approach to judicial review. In this approach, certain authorities have the power to directly question a special constitutional court concerning constitutional issues (Sato, 19). Such authorities include the President of the Republic, the Executive Committee of the Federal Senate, the Executive Committee of the Chamber of Deputies, the Executive Committee of state legislative assemblies, state governors, the Federal Council of the Brazilian Bar Association, political parties represented in the National Congress, and confederative unions or nationwide professional bodies (19). These authorities being able to bring constitutional questions to the court is a practice attributed with concentrated judicial review systems, such as many European legal systems (Rodrigues). Although centralized review is attributed to the European model, the Brazilian centralized remains distinct. This is because rather than having an independent Constitutional Court, as in the case in Europe, Brazil grants the power to decide the constitutionality of the laws to the top judiciary, the Federal Supreme Court (FSC) (Taylor, 276).
Centralized review in Brazil originated in the Constitution of 1934 when it brought about a system of Federal Intervention and the concentrated power in the Federal government (Couto, 29). The FSC could now determine the constitutionality of laws related to Federal Intervention and certain “sensitive constitutional principles” regulations and the examination itself was up to the Federal General Prosecutor (Freire).
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However, this system of centralized review changed during Vargas’ dictatorship with the Constitution of 1937. The FSC was now only allowed to suggest that the constitutionality of a law or regulation be looked at, and only the President was allowed to actually determine constitutionality (Pereira, 10). After the dictatorship, the 1946 Constitution almost fully restored the concentrated system of judicial review to the way it was pre-Federal Intervention (Sato, 19). The FSC was able to examine a popular question by finding the articles pertaining to the parliamentary system in the State Constitutions unconstitutional because they didn’t match up with the Federal Constitution, which implements a presidency (20).
Under the military government, many aspects of centralized judicial review changed with the constitutional reform of 1965. Rather than the examination of constitutionality being limited to state laws, the exercise was allowed to expand to federal laws as well, regardless of whether they were related to Federal Intervention or sensitive constitutional principles (Freire). The underlying intention of these changes was to do away with legislation that conflicted with the military government’s interests (Santiso, 171). The Federal General Prosecutor was still the main examiner of the constitutionality of laws, but people questioned whether the he had to examine the law if he was prompted by a third party or if he could chose whether or not to at his discretion (172). This problem was solved in 1970 when a decree-law was put into place that censored books and periodicals (172). The Federal General Prosecutor was prompted to examine the decree-law, but at his discretion, the Federal General Prosecutor refused (Sato, 23). The FSC decided that the Federal General Prosecutor could use discretion in deciding what to review (24).
After democratization, the centralized system of judicial review changed in the current Constitution of 1988 by expanding in a few ways. Perhaps the most significant change is that the power to bring judicial review cases straight to the FSC was expanded to include to the President, the Executive Committee of the Federal Senate, the Executive Committee of the Chamber of Deputies, the Executive Committee of the Local Legislative Assemblies, state governors, the Federal Council of the Brazilian Bar Association, Political Parties represented in National Congress, and confederative unions or nationwide class entities (Santiso, 25). Also, Brazilian law had not used lacked of legislation as grounds for judicial review in either the centralized or decentralized system, and thus, nothing could be done about laws that didn’t exist employing abstract provisions in the Constitution (Pereira, 13-14). However, the current Constitution changed this after looking to the experiences of the Portuguese, German law, and the former Yugoslavian Constitution for inspiration (Santinso, 27). It now recognized Direct Actions of Unconstitutionality on alleged omission of the Legislature or Executive (27-28). This goes hand in hand with the new decentralized system ofMandado de Injunção (Sato, 24). The two were actually the same system when the Constitution was first being written up, but became two separate branches as the constitutional convention moved forward (24). Lastly, the lack of stare decisis under the decentralized system became problematic because of the influx of constitutional cases and the fact that one court would declare an act constitutional, while a different court would rule that the same act is unconstitutional (Santiso, 170). The FSC was constantly overturning decisions of lower courts, making them feel inferior. Also, the state was losing a majority of cases, and having to pay the price (171). To clean up this mess, it the institution of the Declaratory Action of Constitutionality, which originated in German Constitutional law, was amended into the Constitution in 1993 (Sato, 24). With this in place, whenever there’s an argument about the constitutionality of a law, the President, executive committee of the Senate, the executive committee of the Deputy, or the Federal General Prosecutor can bring a Declaratory Action of Constitutionality to the FSC (24). The decision under this Declaratory Action of Constitutionality haserga omnes, or binds other judicial organs and the Executive (Freire). However, many criticize the Declaratory Action of Constitutionality and argue that it itself is unconstitutional. They argue that it makes the FSC a legislature (Santiso, 173). Judges of lower courts don’t appreciate this new centralized system tool because it disregards the merit of the decentralized system (173-174). They contest that decisions of constitutionality and the resulting laws should be based on and strengthened by case law, and that the Declaratory Action of Constitutionality is only preventing the growth and strengthening of the judicial system (174). Because of this, the Declaratory Action of Constitutionality is very rarely used (only 9 such cases were taken to the FSC between 1993 and 2001) (Freire).
Brazil started off with an Americanized, diffused form of judicial review, but also grew into a concentrated system. These two forms of judicial review have been repeatedly modified throughout Brazil’s history to create the distinctive hybrid system it has today. It’s apparent as to why there is no other system of judicial review that is like it; Brazil’s judicial review is so ineffective that it is seemingly nonexistent. The FSC and inferior courts are too unequal and the centralized system undermines the decentralized system, rendering most rulings in favor of the government and corrupting the less powerful. However, it is reasonable to see Brazil continue to adapt its judicial review now and into the future, focusing more on the Federal Supreme Court (Sato, 124).
- Couto, Cláudio G. and Arantes, Rogério B. (2008) “Constitution, Government and Democracy in Brazil,” World Political Science Review: Vol. 4: Issue. 2, Article 3. Print.
- Freire, Alonso R.Evolution of Constitutional Interpretation in Brazil and the Employment of Balancing “Method” by Brazilian Supreme Court in Judicial Review*. VII the World Congress of the International Association of Constitutional Law. Web. 15 Feb. 2010.
- Pereira, Anthony W. “Explaining judicial reform outcomes in new democracies: The importance of authoritarian legalism in Argentina, Brazil, and Chile.”Human Rights Review 4.3 (2003), 3 – 16. Print.
- Rodrigues, Iran. “Judicialization of Politics: Constitutional Review and Intrastate Litigiousness in Contemporary Brazil.”Conference Papers — Southern Political Science Association (2009): 1. Print.
- Rosenn, Keith. “Judicial Reform in Brazil.” NAFTA: Law and Business Review of the Americas, v.4 Issue2, 1998, p. 19-37. Print.
- Santiso, Carlos. “Economic Reform and Judicial Governance in Brazil: Balancing Independence with Accountability.”Democratization 10.4 (2003): 161-180.Academic Search Premier. EBSCO. Web. 15 Feb. 2010.
- Sato, Miyuki. “Judicial Review in Brazil. Nominal and Real.”Global Jurist Advances 3.1 (2003), 1085.
- Taylor, Matthew M. “Beyond Judicial Reform: Courts as Political Actors in Latin America.”Latin American Research Review 41.2 (2006), 269-280. Print.
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