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Legal Research Guide  | Legal System  |  Executive Branch  | Judicial Branch  |  Legislative Branch

Contents

Executive Summary

This report expands and updates the Brazilian Legal Research Guide available on the website of the Law Library of Congress. The purpose of the Guide is to provide a general understanding of the Brazilian legislative, executive, and judicial branches of the federal government as defined by the Constitution and federal laws.

Initially, the report will be divided in three parts. The first part discusses the legislative branch, the second part explains the executive branch, and the third will update the existing material on the judicial branch.

Additional material will later be included covering nomenclature, hierarchy, and definition of legal terms in general; legal definitions of terms used in administrative law; administrative responsibility; codification and consolidation of laws; sources of publication; legislation, doctrine, and jurisprudence; civil, criminal, and procedural laws; and official sources of law (e.g., official gazettes; codes, consolidations, and random laws; jurisprudence; and scholars).

The report will also include a list with the corresponding links to codes and the most relevant laws currently in force in Brazil, and Internet sources containing legal information including government websites.

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The Executive Branch

The executive branch encompasses the President of the Republic and the Ministers of State.[1] It prepares the government’s guidelines and acts as the head of state, the government, and the administration.[2]

It is granted exceptional power to enact delegated laws,[3] a privilege usually attributed to the legislative branch,[4] and to issue provisional measures[5] in cases of relevance and urgency.[6] With the promulgation of the new Constitution on October 5, 1988, and its subsequent amendment in September 11, 2001,[7] the issuance of provisional measures became more frequent than delegated laws.

Elections

The President and the Vice-President of the Republic must be elected simultaneously on the first Sunday of October for the first round, and on the last Sunday of October if there is a second round, of the year prior to the termination of the term of office of the current president.[8] The election of the President of the Republic implies the election of the Vice-President, who is registered with him.[9]

The candidate who, once registered by a political party, obtains an absolute majority of votes, not counting those left blank or void, is considered the President-elect.[10] If no candidate attains an absolute majority on the first ballot, another election must be held within twenty days after the announcement of the results between the two candidates who obtained the greatest number of votes, and the one who obtains a majority of valid votes is considered elected.[11]

If, before the runoff election is held, a candidate dies, withdraws, or becomes legally impaired, the candidate with the greatest number of votes among the remaining candidates must be called to participate in the next round.[12] In the event of the death of a candidate where more than one candidate with an equal number of votes remains in second place, the older of the candidates must be selected.[13]

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Office

The President and the Vice-President of the Republic must take office at a session of the National Congress, taking an oath to maintain, defend, and comply with the Constitution, observe the laws, promote the well-being of the Brazilian people, and sustain the union, integrity, and independence of Brazil.[14] If within ten days from the date scheduled for assuming office, the President or Vice-President elect (except in the case of a force majeure) has not assumed the office, it must be declared vacant.[15]

Vice-President

The Vice-President must replace the President in the event of an impediment to holding office and must succeed him in the event of vacancy.[16] In addition to other powers conferred on the Vice-President by complementary laws, he must assist the President whenever called on for special missions.[17]

Vacancy

In the event of an impediment preventing the President or Vice-President from holding office, or a vacancy in the respective offices, the President of the Chamber of Deputies, President of the Federal Senate, and President of the Federal Supreme Court must be called successively to serve as President.[18]

If a vacancy occurs in the offices of President and Vice-President of the Republic, an election must be held ninety days after the last vacancy occurred.[19] If the vacancy occurs during the last two years of the President’s term of office, the election for both offices must be made by the National Congress within thirty days after the last vacancy occurred, as provided by law.[20] In any of these cases, those elected must complete the terms of office of their predecessors.[21]

Term of Office

The term of office of the President of the Republic is four years and must begin on January 1 of the year following his election.[22]

Absence

Under penalty of loss of office, the President and Vice-President of the Republic may not leave the country for a period of more than fifteen days without authorization from the National Congress.[23]

Powers

The President of the Republic must have exclusive power to initiate the following laws:[24]

  1. Those that fix or modify the number of troops in the Armed Forces;
  2. Laws that deal with the
    1. creation of public offices, positions, or jobs in the direct administration and administrative agencies (autarquias), or an increase in their remuneration;
    2. administrative and judicial organization, tax and budgetary matters, public services, and administrative personnel of the Territories;
    3. civil servants of the Union and Territories and their legal regime, appointment to positions, tenure, and retirement;
    4. organization of the Public Prosecutor’s Office and Public Defender’s Office, as well as general rules for the organization of the Public Prosecutor’s Offices and Public Defender’s Offices of the States, Federal District, and Territories;
    5. creation and termination of ministries and agencies of public administration, observing the provisions of article 84(VI) of the Constitution; and
    6. military armed forces and their legal regime, appointment to positions, promotions, tenure, compensation, reform, and retirement.

The President of the Republic has the exclusive power to[25]

  1. appoint and dismiss Ministers
  2. exercise, with the assistance of the Ministers, the upper management of the federal administration;
  3. initiate legislation in the manner and cases provided for in the Constitution;
  4. approve, promulgate, and order publication of laws, as well as issue decrees and regulations for their faithful execution;
  5. veto bills of law, either in whole or in part;
  6. address by decree those matters concerning
    1. the organization and functioning of the federal administration, when it neither implies an increase in expense nor the creation or termination of public agencies; or
    2. the termination of public positions or offices, when unoccupied;
  7. maintain relations with foreign States and accredit their diplomatic representatives;
  8. conclude international treaties, conventions, and acts, subject to the approval of the National Congress;
  9. decree a state of defense or a state of siege;
  10. decree and enforce federal intervention;
  11. send a governmental message and government plan to the National Congress at the opening of the legislative session, describing the Country’s situation and requesting actions he deems necessary;
  12. grant pardons and commute sentences after hearing, if necessary, from the agencies that were created by law;
  13. exercise the supreme command over the Armed Forces; appoint the commanders of the Navy, the Army, and the Air Force; promote their generals; and appoint those generals to positions held exclusively by them;
  14. appoint, after approval by the Federal Senate, the Ministers of the Federal Supreme Court and Superior Tribunals, Governors of the Territories, the Attorney General of the Republic, the President and Directors of the Central Bank, and other civil servants, as determined by law;
  15. appoint the Ministers of the Audit Tribunal of the Union, observing the provisions of article 73 of the Constitution;
  16. appoint judges in those cases provided for in the Constitution and appoint the Attorney General of the Union;
  17. appoint members of the Council of the Republic, according to the terms of article 89(VII) of the Constitution;
  18. call and preside over the Council of the Republic and the National Defense Council;
  19. declare war in the event of foreign aggression when authorized by the National Congress, or with congressional ratification if the aggression occurs between legislative sessions, and decree a full or partial national mobilization under the same conditions;
  20. make peace, if authorized by or upon ratification by the National Congress;
  21. confer decorations and honorary awards;
  22. permit foreign forces to pass through Brazilian territory or to remain therein temporarily in cases provided for by supplementary law (external link)[26];
  23. submit to the National Congress the multi-year plan, a draft of the law of budgetary directives, and the budget proposals provided for in the Constitution
  24. render annual accounts to the National Congress concerning the previous fiscal year within sixty days of the opening of the legislative session;
  25. appoint to and terminate federal public office positions in accordance with the law;
  26. issue provisional measures with the force of law, according to the terms of article 62 of the Constitution; and
  27. exercise other powers provided for in the Constitution.

The President of the Republic may delegate the powers mentioned in article 84, subparagraphs VI, XII, and XXV (first part) to Ministers, the Attorney General of the Republic, or the Attorney General of the Union, who must observe the limitations set forth in the respective delegations.[27]

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Debates and Voting

Debates and votes on bills initiated by the President of the Republic, Federal Supreme Court, and Superior Tribunals must start in the Chamber of Deputies.[28] The President of the Republic may request the expeditious consideration of bills initiated by him.[29] If the Chamber of Deputies and the Federal Senate fail to act on such a bill successively within forty-five days, all other legislative deliberations must be suspended in the respective House, with the exception of those that have a determined constitutional period, until the bill is finally voted upon.[30] This time period does not run when the National Congress is in recess and does not apply to the drafting of codes.[31] Amendments to a bill made by the Federal Senate must be considered by the Chamber of Deputies within ten days.[32]

Impeachment

Impeachable offenses (crimes de responsabilidade) are defined as acts of the President of the Republic that attempt to undermine the Federal Constitution, especially those acts against the[33]

  1. existence of the Union;
  2. free exercise of the powers of the Legislature, Judiciary, and Public Prosecutor’s Office, and those constitutional powers of the units of the Federation;
  3. exercise of political, individual, and social rights;
  4. internal security of the country;
  5. probity in administration;
  6. budget law; and
  7. compliance with laws and court decisions.

These offenses are defined in a special law (external link),[34] which establishes the procedural rules and the trial process.[35]

If two-thirds of the Chamber of Deputies accepts an accusation against the President of the Republic, he must be tried before the Federal Supreme Court for common criminal offenses or before the Federal Senate for impeachable offenses.[36]

The President must be suspended from his duties[37]

  1. for common criminal offenses, if the accusation or criminal complaint has been received by the Federal Supreme Court; and
  2. for impeachable offenses, after proceedings are initiated by the Federal Senate.

If the trial has not been concluded after a period of 180 days, the President’s suspension must end without prejudice to the normal progress of the proceedings.[38] The President may not be arrested for common offenses until after he has been convicted.[39] During his term of office, the President may not be held liable for acts unrelated to the performance of his duties.[40]

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Ministers

Ministers (Ministros de Estado) must be chosen from among Brazilians older than twenty-one years and in full possession of their political rights.[41] In addition to other powers set out in the Constitution and in the law, a minister must have the power to[42]

  1. orient, coordinate, and supervise agencies and entities of the federal administration in the area of his authority, and countersign acts and decrees signed by the President of the Republic;
  2. issue instructions for the enforcement of laws, decrees, and regulations;
  3. submit an annual report on his administration of the ministry to the President of the Republic; and
  4. perform acts pertinent to the powers granted or delegated to him by the President of the Republic.

The law must provide for the creation and termination of ministries and agencies of the public administration.[43]

Council of the Republic

The Council of the Republic (Conselho da República) is the President’s highest advisory body and is composed of[44]

  1. the Vice-President of the Republic;
  2. the President of the Chamber of Deputies;
  3. the President of the Federal Senate;
  4. the majority and the minority leaders of the Chamber of Deputies;
  5. the majority and minority leaders of the Federal Senate;
  6. the Minister of Justice; and
  7. six Brazilians who are citizens by birth and over the age of thirty-five, two of whom are appointed by the President of the Republic, two elected by the Federal Senate, and two elected by the Chamber of Deputies, and all of whom are appointed for a non-renewable, three-year term.

The Council of the Republic has the authority to give its opinion on[45]

  1. federal intervention, a state of defense, and a state of siege; and
  2. issues relevant to the stability of democratic institutions.

The President of the Republic may call a Minister to participate in a Council meeting when the agenda includes a matter related to the respective Ministry.[46] The organization and operation of the Council of the Republic must be regulated by law.[47]

Law No. 8,041 of June 5, 1990, provides for the organization and functioning of the Council of the Republic.[48]

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National Defense Council

The National Defense Council is the advisory body of the President of the Republic on matters related to national sovereignty and defense of the democratic state. The council’s original members include the[49]

  1. Vice-President of the Republic;
  2. President of the Chamber of Deputies;
  3. President of the Federal Senate;
  4. Minister of Justice;
  5. Minister of the State of Defense
  6. Minister of Foreign Affairs;
  7. Minister of Planning; and
  8. Commanders of the Navy, Army, and Air Force.

The National Defense Council has the authority to[50]

  1. issue an opinion in the event of a declaration of war and the making of peace, in accordance with the Constitution;
  2. issue an opinion on decreeing a state of defense, a state of siege, and federal intervention;
  3. propose the criteria and conditions for utilization of areas indispensable to the security of national territory and issue an opinion on their effective use, especially for the frontier strip and those areas related to preservation and exploitation of natural resources of any kind; and
  4. study, propose, and monitor the development of initiatives required to guarantee national independence and defense of the democratic state.

Law No. 8,183 of April 11, 1991,[51] provides for the organization and functioning of the National Defense Council, which is regulated by Decree No. 893 of August 12, 1993.[52]

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Prepared by Eduardo Soares
Senior Foreign Law Specialist
February 2011

  1. Constituição da República Federativa do Brasil [C.F.], promulgada em 5 de Outubro de 1988, art. 76, http://www.planalto.gov.br/ccivil_03/Constituicao/Constituiçao.htm (external link). [Back to Text]
  2. José Afonso da Silva, Curso de Direito Constitucional Positivo, 542 (Malheiros Editores, 2008). [Back to Text]
  3. There can be no delegation of acts falling within the exclusive powers of the National Congress, the Chamber of Deputies, or the Federal Senate; matters reserved for supplementary laws; legislation about the organization of the judicial power; the functions of the Public Prosecutor’s Office and the career and guarantees of members of the Office; nationality; citizenship; individual, political, and electoral rights; or multi-annual plans, budgetary directives, and budgets.  The delegation takes the form of a resolution from the National Congress specifying its content and the terms of its exercise.  C.F. art. 68. [Back to Text]
  4. Id. arts. 59(IV), 68. [Back to Text]
  5. Provisional measures were adapted to the presidential system to enable the executive to take action when presented with urgent and relevant matters.  Once issued by the executive, the provisional measure is valid for sixty days with the possibility of being extended for a further sixty days until the National Congress has an opportunity to deliberate and vote.  If approved, the measure becomes law; otherwise, it loses its status and becomes unenforceable.  Once rejected, the provisional measure cannot be reenacted within the same legislative session.  Technically, a provisional measure constitutes an enforceable presidentially-enacted law that enables the federal government to address, in an expeditious fashion, issues of national concern without going through the legislative process.  However, there are constitutional limitations.  A provisional measure can neither increase expenditures nor address those issues included in article 62 of the Constitution, which encompasses, inter alia, criminal law, criminal procedure, and civil procedure. [Back to Text]
  6. Id. art. 62. [Back to Text]
  7. Emenda Constitucional No. 32, de 11 de Setembro de 2001, http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/emc32.htm (external link). [Back to Text]
  8. C.F. art. 77. [Back to Text]
  9. Id. art. 77(§1). [Back to Text]
  10. Id. art. 77(§2). [Back to Text]
  11. Id. art. 77(§3). [Back to Text]
  12. Id. art. 77(§4). [Back to Text]
  13. Id. art. 77(§5). [Back to Text]
  14. Id. art. 78. [Back to Text]
  15. Id. art. 78(Sole para.). [Back to Text]
  16. Id. art. 79. [Back to Text]
  17. Id. art. 79(Sole para.). [Back to Text]
  18. Id. art. 80. [Back to Text]
  19. Id. art. 81. [Back to Text]
  20. Id. art. 81(§1). [Back to Text]
  21. Id. art. 81(§2). [Back to Text]
  22. Id. art. 82. [Back to Text]
  23. Id. art. 83. [Back to Text]
  24. Id. art. 61(§1). [Back to Text]
  25. Id. art. 84. [Back to Text]
  26. Lei Complementar No. 90, de 1 de Outubro de 1997, determines the cases in which foreign forces may pass by the national territory or stay there temporarily, https://www.planalto.gov.br/ccivil_03/leis/lcp/lcp90.htm (external link). [Back to Text]
  27. C.F. art.  84(Sole para.). [Back to Text]
  28. Id. art. 64. [Back to Text]
  29. Id. art. 64(§1). [Back to Text]
  30. Id. art. 64(§2). [Back to Text]
  31. Id. art. 64(§4). [Back to Text]
  32. Id. art. 64(§3). [Back to Text]
  33. Id. art. 85. [Back to Text]
  34. Lei No. 1.079, de 10 de Abril de 1950, http://www.planalto.gov.br/ccivil_03/Leis/L1079consol.htm (external link) (defining impeachable offenses and regulating the trial process). [Back to Text]
  35. C.F. art. 85(Sole para.). [Back to Text]
  36. Id. art. 86. [Back to Text]
  37. Id. art. 86(§1). [Back to Text]
  38. Id. art. 86(§2). [Back to Text]
  39. Id. art. 86(§3). [Back to Text]
  40. Id. art. 86(§4). [Back to Text]
  41. Id. art. 87. [Back to Text]
  42. Id. art. 87(Sole para.). [Back to Text]
  43. Id. art. 88. [Back to Text]
  44. Id. art. 89. [Back to Text]
  45. Id. art. 90. [Back to Text]
  46. Id. art. 90(§1). [Back to Text]
  47. Id. art. 90(§2). [Back to Text]
  48. Lei No. 8.041, de 5 de Junho de 1990, http://www.planalto.gov.br/ccivil_03/Leis/L8041.htm (external link). [Back to Text]
  49. Id. art. 91. [Back to Text]
  50. Id. art. 91(§1). [Back to Text]
  51. Lei No. 8.183, de 11 de Abril de 1991, http://www.planalto.gov.br/ccivil_03/Leis/L8183.htm (external link). [Back to Text]
  52. Decreto No. 893, de 12 de Agosto de 1993, http://www.planalto.gov.br/ccivil_03/decreto/1990-1994/D0893.htm (external link). [Back to Text]

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Last Updated: 03/07/2014