Brazil

Biblioteca Digital da Câmara dos Deputados

Centro de Documentação e Informação

Coordenação de Biblioteca

http:/ /bd.camara.gov.br

"Dissemina os documentos digitais de interesse da atividade legislativ a e da sociedade.”

3rd Edition

2010

Constitutional text of October 5, 1988, with the alterations

introduced by Constitutional Amendments No. 1/1992 through 64/2010 and by Revision Constitutional Amendments No. 1/1994 through 6/1994.

Constitutional text of October 5, 1988, with the alterations introduced by Constitutional Amendments No. 1/1992 through 64/2010 and by Revision Constitutional Amendments No. 1/1994 through 6/1994.

CHAMBER OF DEPUTIES

9 7 8 8 5 7 3 6 5 7 3 6 4ISBN 978-85-736-5736-4

President

1st Vice President

2nd Vice President

1st Secretary

2nd Secretary

3rd Secretary

4th Secretary

Substitutes

1st Substitute

2nd Substitute

3rd Substitute

4th Substitute

General Manager

Secretary General to the Governing BoardMichel Temer

Marco MaiaAntonio Carlos Magalhães Neto

Rafael Guerra

Inocêncio OliveiraOdair CunhaNelson Marquezelli

Marcelo Ortiz

Giovanni QueirozLeandro SampaioManoel Junior

Sérgio Sampaio Contreiras de Almeida

Mozart Vianna de Paiva Chamber of Deputies Directing Board

53rd Congress – 4th Session

2010

Constitution

of the fe dera tive re public of br azil

miolo_constitution_versao_camara.indd 1 17/6/2010 15:00:59

Chamber of Deputies

Constitution

of the feDerative republi C of brazil

Constitutional text of oc tober 5, 1988, with the alterations introduced

by Constitutional am

endments no

. 1/1992 through 64/2010 and by

re

vision Constitutional am

endments no

. 1/1994 through 6/1994.

Documentation and information Center

p

ublishing Coordination

b

rasília – 20103rd edition

ChaMber of Deputies

le

G

islative

D

ivision

h

ead a

frísio vieira

l

ima

f

ilho

D

o

C

u

M

entation

an

D

infor

M

ation

C

enter

h

ead a

dolfo C. a

.

r

.

f

urtado

publishin

G C

oor

D

ination

h

ead Maria Clara

b

icudo Cesar

Grafic Project: Renzo Viggiano

Cover: Cosme Rocha Eletronic publishing: Rejane C. Lima Rodrigues, Angelina Almeida and Patrícia Weiss

TRANSLATION HISTORY:

o

riginal text, Constitutional a

mendments n

o. 1/92 through 9/95, and r

evision Constitutional

Amendments No. 1/94 through 6/94: translated by Istvan Vajda, Patricia de Queiroz Carvalho Zimbres,

Vanira Tavares de Souza. Constitutional Amendments No. 10/96 through 15/96: translated by Istvan Vajda. Constitutional Amendments No. 16/97 through 64/07: translated by Vanira Tavares de Souza.

translation

s

ervice of the

s

ecretariat of

i

nformation and Documentation of the

f

ederal

s

enate.

Chamber of DeputiesDocumentation and

i

nformation Center – Cedi

p

ublishing Coordination – Coedi

a

nexo

ii

–

p

raça dos três

p

oderes

Brasília (DF) – CEP 70160-900Phone: +55 +61 3216-5809; fax: +55 +61 3216-5810edicoes.cedi@camara.gov.br

serie

textos básicos

n. 57

Dados Internacionais de Catalogação-na-publicação (CIP)

Coordenação de

b

iblioteca.

s

eção de Catalogação.

b

rasil. [Constituição (1988)].

Constitution of the Federative Republic of Brazil : constitutional text of October 5, 1988, with the alterations introduced by Constitucional

am

endments no. 1/1992 through 64/2010 and

by Revision Constitutional Amendments no. 1/1994 through 6/1994. – 3. ed. – Brasília : Chamber of Deputies, Documentation and

i

nformation Center, 2010.

435 p. – (Série textos básicos ; n. 57)

ISBN 978-85-736-5736-4 1. Constituição,

b

rasil, 1988. 2.

e

menda Constitucional,

b

rasil.

i

. t

ítulo.

ii

.

s

érie.

CD

u

342.4(81)”1988”

ISBN 978-85-736-5736-4 (brochura)

ISBN 978-85-736-5737-1 (e-book)

table of Contents

Preamble ............................................................................................................... 1 1

title

i

–

f

undamental Principles (

a

rts. 1 through 4)

........................................ 13

title

ii

–

f

undamental Rights and Guarantees

............................................... 15

c

hapter

i

–

i

ndividual and

c

ollective

r

ights and

d

uties (

a

rt. 5) ........................ 15

c

hapter

ii

–

s

ocial

r

ights (

a

rts. 6 through 11)

..................................................... 21

c

hapter

iii

–

n

ationality (

a

rts. 12 and 13) ............................................................ 24

c

hapter

iv –

p

olitical

r

ights (

a

rts. 14 through 16) .............................................. 25

Chapter

V – Political Parties (Art. 17) ................................................................... 27

title

iii

– t

he

o

rganization of the

s

tate ........................................................... 29

The Political and Administrative Organization (Arts. 18 and 19) ..... 29

c

hapter

ii

– t

he

u

nion (

a

rts. 20 through 24)

...................................................... 29

c

hapter

iii

– t

he

f

ederated

s

tates (

a

rts. 25 through 28) ..................................... 35

c

hapter

iv – t

he Municipalities (

a

rts. 29 through 31) ........................................ 36

c

hapter v – t

he

f

ederal

d

istrict and the territories ............................................. 41

s

ection

i

– t

he

f

ederal

d

istrict (

a

rt. 32) ........................................................... 41

s

ection

ii

– t

he territories (

a

rt. 33) .................................................................. 41

c

hapter vi

–

i

ntervention (

a

rts. 34 through 36) ................................................... 41

c

hapter vii

–

p

ublic a

dministration ..................................................................... 43

Section I – General Provisions (Arts. 37 and 38) ................................................ 43

s

ection

ii

– Government

e

mployees (

a

rts. 39 through 41) ............................... 47

s

ection

iii

– t

he Military of the

s

tates, of the

f

ederal

d

istrict

and of the territories (

a

rt. 42) ..................................................................... 51

s

ection

iv – t

he

r

egions (

a

rt. 43) ................................................................... 51

title

i

V – t

he

o

rganization of the Powers ........................................................ 53

c

hapter

i

– t

he

l

egislative

p

ower ........................................................................ 53

Section I –

The National Congress (Arts. 44 through 47) .................................. 53

s

ection

ii

–

p

owers of the

n

ational

c

ongress (

a

rts. 48 through 50) ................. 53

s

ection

iii

– t

he

c

hamber of

d

eputies (

a

rt. 51) ............................................... 55

s

ection

iv – t

he

f

ederal

s

enate (

a

rt. 52) ......................................................... 56

s

ection v –

d

eputies and

s

enators (

a

rts. 53 through 56) .................................. 57

Section

VI – The Sessions (Art. 57)

................................................................... 59

s

ection vii

– t

he

c

ommittees (

a

rt. 58) ............................................................ 60

s

ection viii

– t

he

l

egislative

p

rocess .............................................................. 61

s

ubsection

i

– General

p

rovision (

a

rt. 59) ...................................................... 61

s

ubsection

ii

– a

mendments to the

c

onstitution (

a

rt. 60) .............................. 62

s

ubsection

iii

– t

he

l

aws (

a

rts. 61 through 69)

............................................. 62

s

ection

i

X – a

ccounting,

f

inancial and

b

udgetary

c

ontrol

(Arts. 70 through 75)

.................................................................................... 66

c

hapter

ii

– t

he

e

xecutive

p

ower ......................................................................... 69

s

ection

i

– t

he

p

resident and the vice-

p

resident of the

r

epublic

(Arts. 76 through 83)

.................................................................................... 69

miolo_constitution_versao_camara.indd 5 17/6/2010 15:00:59

section ii – duties of the president of the republic ( art. 84) ............................. 70

s

ection

iii

–

l

iability of the

p

resident of the

r

epublic (

a

rts. 85 and 86). .......... 72

Section IV

– The Ministers of State (Arts. 87 and 88) ......................................... 73

s

ection v – t

he

c

ouncil of the

r

epublic and

the

n

ational

d

efense

c

ouncil ........................................................................ 73

s

ubsection

i

– t

he

c

ouncil of the

r

epublic (

a

rts. 89 and 90) .......................... 73

s

ubsection

ii

– t

he

n

ational

d

efense

c

ouncil (

a

rt. 91) .................................. 74

c

hapter

iii

– t

he Judicial

p

ower ............................................................................ 75

s

ection

i

– General

p

rovisions (

a

rts. 92 through 100) ........................................ 75

s

ection

ii

– t

he

s

upreme

f

ederal

c

ourt (

a

rts. 101 through 103-

b

) ................... 81

s

ection

iii

– t

he

s

uperior

c

ourt of Justice (

a

rts. 104 and 105) ......................... 86

s

ection

iv – t

he

f

ederal

r

egional

c

ourts and the

f

ederal Judges

(

a

rts. 106 through 110)

.................................................................................. 88

Section

V – Labour Courts and Judges (Arts. 111 through 117)

.......................... 91

s

ection vi

–

e

lectoral

c

ourts and Judges (

a

rts. 118 through 121)

..................... 93

s

ection vii

– Military

c

ourts and Judges (

a

rts. 122 through 124) ..................... 94

s

ection viii

–

c

ourts and Judges of the

s

tates (

a

rts. 125 and 126)

................... 95

c

hapter

iv – t

he

f

unctions

e

ssential to Justice .................................................... 96

Section I –

The Public Prosecution (Arts. 127 through 130-A) ........................... 96

s

ection

ii

– t

he

p

ublic a

dvocacy (

a

rts. 131 and 132)

..................................... 100

s

ection

iii

– t

he

l

egal

p

rofession and the

p

ublic

l

egal

d

efense

(

a

rts. 133 through 135)

................................................................................ 101

title

V – t

he Defense of the

s

tate and of the Democratic

i

nstitutions

......... 103

c

hapter

i

– t

he

s

tate of

d

efense and the

s

tate of

s

iege ...................................... 103

s

ection

i

– t

he

s

tate of

d

efense (

a

rt. 136) ....................................................... 103

Section II –

The State of Siege (Arts. 137 through 139) .................................... 104

s

ection

iii

– General

p

rovisions (

a

rts. 140 and 141) ........................................ 105

c

hapter

ii

– t

he a

rmed

f

orces (

a

rts. 142 and 143)

............................................ 105

c

hapter

iii

–

p

ublic

s

ecurity (

a

rt. 144) ............................................................... 106

title

V

i

– taxation and

b

udget

.......................................................................... 109

c

hapter

i

– t

he

n

ational tax

s

ystem

................................................................... 109

s

ection

i

– General

p

rinciples (

a

rts. 145 through 149-

a

)................................. 109

s

ection

ii

–

l

imitations on the

p

ower to tax (

a

rts. 150 through 152)

.............. 1

11

s

ection

iii

–

f

ederal taxes (

a

rts. 153 and 154)

................................................ 1

13

s

ection

iv –

s

tate and

f

ederal

d

istrict taxes (

a

rt. 155)

................................... 1

14

s

ection v – Municipal taxes (

a

rt. 156)

............................................................ 1

17

Section VI – Tax Revenue Sharing (Arts. 157 through 162) ............................. 1

18

c

hapter

ii

–

p

ublic

f

inances ................................................................................. 120

s

ection

i

– General

r

ules (

a

rts. 163 and 164) .................................................. 120

s

ection

ii

–

b

udgets (

a

rts. 165 through 169) .................................................... 121

title

V

ii

– t

he

e

conomic and

f

inancial

o

rder

.............................................. 127

c

hapter

i

– t

he General

p

rinciples of the

e

conomic a

ctivity

(Arts. 170 through 181)

.................................................................................. 127

c

hapter

ii

–

u

rban

p

olicy (

a

rts. 182 and 183) .................................................... 131

c

hapter

iii

– a

gricultural and

l

and

p

olicy and a

grarian

r

eform

(

a

rts. 184 through 191)

.................................................................................. 131

c

hapter

iv – t

he

n

ational

f

inancial

s

ystem (

a

rt. 192) ...................................... 133

miolo_constitution_versao_camara.indd 6 17/6/2010 15:00:59

title V iii – t he s ocial o rder ............................................................................. 135

c

hapter

i

– General

p

rovision (

a

rt.193) ............................................................... 135

Welfare ................................................................................... 135

s

ection

i

– General

p

rovisions (

a

rts. 194 and 195) .......................................... 135

s

ection

ii

–

h

ealth (

a

rts. 196 through 200) ...................................................... 137

s

ection

iii

–

s

ocial

s

ecurity (

a

rts. 201 and 202) .............................................. 139

s

ection

iv –

s

ocial a

ssistance (

a

rts. 203 and 204)

.......................................... 141

c

hapter

iii

–

e

ducation,

c

ulture and

s

ports ......................................................... 142

s

ection

i

–

e

ducation (

a

rts. 205 through 214) .................................................. 142

s

ection

ii

–

c

ulture (

a

rts. 215 and 216) ........................................................... 145

Section III – Sports (Art. 217)

........................................................................... 147

c

hapter

iv –

s

cience and technology (

a

rts. 218 and 219)

................................. 147

c

hapter v –

s

ocial

c

ommunication (

a

rts. 220 through 224) .............................. 148

c

hapter vi

–

e

nvironment (

a

rt. 225) ................................................................... 150

c

hapter vii

–

f

amily,

c

hildren, a

dolescents and the

e

lderly

(

a

rts. 226 through 230)

.................................................................................. 151

c

hapter viii

–

i

ndians (

a

rts. 231 and 232)

.......................................................... 152

title

i

X – General Constitutional Provisions (

a

rts. 233 through 250)

............ 155

temporary Constitutional Pr

ovisions a

ct (Arts. 1 through 97)

....................... 163

Constitutional a

mendments

c

onstitutional a

mendment

n

o. 1, 1992 ............................................................... 205

c

onstitutional a

mendment

n

o. 2, 1992 ............................................................... 207

c

onstitutional a

mendment

n

o. 3, 1993 ............................................................... 208

c

onstitutional a

mendment

n

o. 4, 1993 ............................................................... 212

c

onstitutional a

mendment

n

o. 5, 1995 ............................................................... 213

c

onstitutional a

mendment

n

o. 6, 1995 ............................................................... 214

Constitutional

Amendment No. 7, 1995 ............................................................... 216

c

onstitutional a

mendment

n

o. 8, 1995 ............................................................... 217

c

onstitutional a

mendment

n

o. 9, 1995 ............................................................... 218

c

onstitutional a

mendment

n

o. 10, 1996 ............................................................. 220

c

onstitutional a

mendment

n

o. 11, 1996

.............................................................. 223

c

onstitutional a

mendment

n

o. 12, 1996 ............................................................. 224

c

onstitutional a

mendment

n

o. 13, 1996 ............................................................. 225

c

onstitutional a

mendment

n

o. 14, 1996 ............................................................. 226

c

onstitutional a

mendment

n

o. 15, 1996 ............................................................. 229

Constitutional

Amendment No. 16, 1997 ............................................................. 230

Constitutional

Amendment No. 17, 1997 ............................................................. 232

c

onstitutional a

mendment

n

o. 18, 1998 ............................................................. 234

c

onstitutional a

mendment

n

o. 19, 1998 ............................................................. 237

c

onstitutional a

mendment

n

o. 20, 1998 ............................................................. 252

c

onstitutional a

mendment

n

o. 21, 1999 ............................................................. 264

c

onstitutional a

mendment

n

o. 22, 1999 ............................................................. 266

c

onstitutional a

mendment

n

o. 23, 1999 ............................................................. 268

c

onstitutional a

mendment

n

o. 24, 1999 ............................................................. 270

c

onstitutional a

mendment

n

o. 25, 2000 ............................................................. 272

c

onstitutional a

mendment

n

o. 26, 2000 ............................................................. 275

Constitutional

Amendment No. 27, 2000 ............................................................. 276

miolo_constitution_versao_camara.indd 7 17/6/2010 15:00:59

constitutional a mendment n o. 28, 2000 ............................................................ 277

c

onstitutional a

mendment

n

o. 29, 2000 ............................................................. 278

c

onstitutional a

mendment

n

o. 30, 2000 ............................................................. 282

c

onstitutional a

mendment

n

o. 31, 2000 ............................................................. 285

c

onstitutional a

mendment

n

o. 32, 2001 ............................................................. 288

c

onstitutional a

mendment

n

o. 33, 2001 ............................................................. 292

c

onstitutional a

mendment

n

o. 34, 2001 ............................................................ 296

c

onstitutional a

mendment

n

o. 35, 2001 ............................................................. 297

c

onstitutional a

mendment

n

o. 36, 2002 ............................................................. 299

Constitutional

Amendment No. 37, 2002 ............................................................. 301

c

onstitutional a

mendment

n

o. 38, 2002 ............................................................. 305

c

onstitutional a

mendment

n

o. 39, 2002 ............................................................. 306

c

onstitutional a

mendment

n

o. 40, 2003 ............................................................. 307

c

onstitutional a

mendment

n

o. 41, 2003 ............................................................. 309

c

onstitutional a

mendment

n

o. 42, 2003 ............................................................. 317

c

onstitutional a

mendment

n

o. 43, 2004 ............................................................. 325

c

onstitutional a

mendment

n

o. 44, 2004 ............................................................. 326

c

onstitutional a

mendment

n

o. 45, 2004 ............................................................. 327

c

onstitutional a

mendment

n

o. 46, 2005 ............................................................. 344

Constitutional

Amendment No. 47, 2005 ............................................................. 345

c

onstitutional a

mendment

n

o. 48, 2005 ............................................................. 348

c

onstitutional a

mendment

n

o. 49, 2006 ............................................................. 349

c

onstitutional a

mendment

n

o. 50, 2006 ............................................................. 351

c

onstitutional a

mendment

n

o. 51, 2006 ............................................................. 353

c

onstitutional a

mendment

n

o. 52, 2006 ............................................................. 355

c

onstitutional a

mendment

n

o. 53, 2006 ............................................................. 356

Constitutional

Amendment No. 54, 2007 ............................................................. 362

Constitutional

Amendment No. 55, 2007 ............................................................. 364

Constitutional

Amendment No. 56, 2007 ............................................................. 365

Constitutional

Amendment No. 57, 2008 ............................................................. 366

c

onstitutional a

mendment

n

o. 58, 2009 ............................................................. 367

c

onstitutional a

mendment

n

o. 59, 2009 ............................................................. 371

c

onstitutional a

mendment

n

o. 60, 2009 ............................................................. 374

c

onstitutional a

mendment

n

o. 61, 2009 ............................................................. 376

c

onstitutional a

mendment

n

o. 62, 2009 ............................................................. 377

c

onstitutional a

mendment

n

o. 63, 2010 ............................................................. 386

c

onstitutional a

mendment

n

o. 64, 2010 ............................................................. 387

i

nternational a

cts

e

quivalent to Constitutional a

mendments

l

egislative

d

ecree

n

o. 186, 2008 ......................................................................... 391

Revision Constitutional a

mendments

r

evision

c

onstitutional a

mendment

n

o. 1, 1994 ................................................ 427

r

evision

c

onstitutional a

mendment

n

o. 2, 1994 ................................................ 430

r

evision

c

onstitutional a

mendment

n

o. 3, 1994 ................................................ 431

r

evision

c

onstitutional a

mendment

n

o. 4, 1994 ................................................ 433

r

evision

c

onstitutional a

mendment

n

o. 5, 1994 ................................................ 434

r

evision

c

onstitutional a

mendment

n

o. 6, 1994 ................................................ 435

miolo_constitution_versao_camara.indd 8 17/6/2010 15:00:59

eDitoR’s note

the alterations deriving from the c onstitutional a mendments and from the r evision

co

nstitutional am

endments have already been incorporated into the main text.

t

he modifying amendments are mentioned in parentheses at the end of the head

paragraph of altered articles. o

ther pieces of information are indicated by numbered

footnotes.

miolo_constitution_versao_camara.indd 9 17/6/2010 15:00:59

Constitution

of the federative Republic of brazil

PRe

amble

We, the representatives of the Brazilian People, convened in the

na

tional co

nstituent as

sembly to institute a democratic state for the

purpose of ensuring the exercise of social and individual rights, liberty,

security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, founded on social harmony and committed, in the internal and international orders, to the peaceful settlement of disputes, promulgate, under the protection of God, this Constitution of the Federative Republic of Brazil.

miolo_constitution_versao_camara.indd 11 17/6/2010 15:00:59

Fundamental Principles 13

title i

f

undamental Principles

the states and municipalities and of the f

ederal d

istrict, is a legal democratic state

and is founded on:

I – sovereignty;

II – citizenship;III – the dignity of the human person;IV – the social values of labour and of the free enterprise;

v – political pluralism.

Sole

paragraph.

a

ll power emanates from the people, who exercise it by means

of elected representatives or directly, as provided by this

c

onstitution.

ar

ticle 2.

th

e le

gislative, the ex

ecutive and the Judicial, independent and

harmonious among themselves, are the powers of the

u

nion.

a

rticle 3. The fundamental objectives of the Federative Republic of Brazil are:

I – to build a free, just and solidary society;II – to guarantee national development;

iii

– to eradicate poverty and substandard living conditions and to reduce

social and regional inequalities;

IV – to promote the well-being of all, without prejudice as to origin, race, sex,

colour, age and any other forms of discrimination.

ar

ticle 4. T

he international relations of the Federative Republic of Brazil are

governed by the following principles:

I – national independence;II – prevalence of human rights;III – self-determination of the peoples;IV – non-intervention;V – equality among the states;VI – defense of peace;VII – peaceful settlement of conflicts;VIII – repudiation of terrorism and racism;IX – cooperation among peoples for the progress of mankind;X – granting of political asylum.

miolo_constitution_versao_camara.indd 13 17/6/2010 15:00:59

Constitution of the Federative Republic of Brazil 14

Sole paragraph. T he Federative Republic of Brazil shall seek the economic,

political, social and cultural integration of the peoples of l

atin a

merica, viewing the

formation of a

l

atin-

a

merican community of nations.

miolo_constitution_versao_camara.indd 14 17/6/2010 15:01:00

Fundamental Rights and Guarantees 15

title ii

f

undamental Rights and Guarantees

CHaPteR i

i

ndividual and

c

ollective

r

ights and

d

uties

a

rticle 5.

a

ll persons are equal before the law, without any distinction whatsoever,

Brazilians and foreigners residing in the country being ensured of inviolability of the

right to life, to liberty, to equality, to security and to property, on the following terms: (

ca

n

o. 45, 2004)

i

– men and women have equal rights and duties under the terms of this

Constitution;

ii

– no one shall be obliged to do or refrain from doing something except by

virtue of law;

i

ii

– no one shall be submitted to torture or to inhuman or degrading

treatment;

IV – the expression of thought is free, and anonymity is forbidden;

v

– the right of reply is ensured, in proportion to the offense, as well as

compensation for property or moral damages or for damages to the image;

vi

– freedom of conscience and of belief is inviolable, the free exercise of

religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed;

vii

– under the terms of the law, the rendering of religious assistance in civil

and military establishments of collective confinement is ensured;

v

iii

– no one shall be deprived of any rights by reason of religious belief or

philosophical or political conviction, unless he invokes it to exempt himself from a legal obligation required of all and refuses to perform an alternative obligation established by law;

IX – the expression of intellectual, artistic, scientific, and communications

activities is free, independently of censorship or license;

X – the privacy, private life, honour and image of persons are inviolable,

and the right to compensation for property or moral damages resulting from their violation is ensured;

X

i

– the home is the inviolable refuge of the individual, and no one may enter

therein without the consent of the dweller, except in the event of flagrante delicto or

disaster, or to give help, or, during the day, by court order;

X

ii

– the secrecy of correspondence and of telegraphic, data and telephone

communications is inviolable, except, in the latter case, by court order, in the cases and in the manner prescribed by law for the purposes of criminal investigation or criminal procedural finding of facts;

miolo_constitution_versao_camara.indd 15 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 16

XIII – the practice of any work, trade or profession is free, observing the

professional qualifications which the law shall establish;

XIV – access to information is ensured to everyone and the confidentiality of

the source shall be safeguarded, whenever necessary to the professional activity;

X

v

– locomotion within the national territory is free in time of peace, and

any person may, under the terms of the law, enter it, remain therein or leave it with

his assets;

X

vi

– all persons may hold peaceful meetings, without weapons, in places

open to the public, regardless of authorization provided that they do not frustrate another meeting previously called for the same place, subject only to prior notice to the competent authority;

X

vii

– freedom of association for lawful purposes is fully guaranteed, any

paramilitary association being forbidden;

X

viii

– the creation of associations and, under the terms of the law, that of

cooperatives is not subject to authorization, and State interference in their operation is forbidden;

X

iX

– associations may only be compulsorily dissolved or have their activities

suspended by a judicial decision, and a final and unappealable decision is required in the first case;

XX – no one shall be compelled to become associated or to remain associated;

XXI – when expressly authorized, associations shall have the legitimacy to

represent their members either judicially or extrajudicially;

XXII – the right of property is guaranteed;XXIII – property shall observe its social function;XX

iv

– the law shall establish the procedure for expropriation for public

necessity or use, or for social interest, with fair and previous pecuniary compensation,

except for the cases provided in this Constitution;

XXV – in case of imminent public danger, the competent authority may make

use of private property, provided that, in case of damage, subsequent compensation is ensured to the owner;

XXVI – the small rural property, as defined by law, provided that it is exploited

by the family, shall not be subject to attachment for the payment of debts incurred by reason of its productive activities, and the law shall establish the means to finance its development;

XXVII – the exclusive right of use, publication or reproduction of works

rests upon their authors and is transmissible to their heirs for the time the law shall establish;

XXVIII – under the terms of the law, the following are ensured:

a) protection of individual participation in collective works and of reproduction

of the human image and voice, sports activities included;

miolo_constitution_versao_camara.indd 16 17/6/2010 15:01:00

Fundamental Rights and Guarantees 17

b) the right to authors, interpreters, and respective unions and associations

to monitor the economic exploitation of the works which they create or in

which they participate;

XXiX

– the law shall ensure the authors of industrial inventions of a temporary

privilege for their use, as well as protection of industrial creations, property of trademarks, names of companies and other distinctive signs, viewing the social interest and the technological and economic development of the country;

XXX – the right to inheritance is guaranteed;

XXXI – succession to the estate of foreigners which is located in Brazil shall be

regulated by the Brazilian law in favour of the Brazilian spouse or children, whenever

the personal law of the deceased is not more favourable to them;

XXX

i

i

– the st

ate shall provide, as set forth by law, for the defense of

consumers;

XXX i

ii

– all persons have the right to receive, from the public agencies,

information of private interest to such persons, or of collective or general interest, which shall be provided within the period established by law, subject to liability, except for the information whose secrecy is essential to the security of society and of the State;

XXX

iv

– the following are ensured to everyone, without any payment of

fees:

a) the right to petition the Government in defense of rights or against illegal

acts or abuse of power;

b) the obtaining of certificates from government offices, for the defense of

rights and clarification of situations of personal interest;

XXXV – the law shall not exclude any injury or threat to a right from the

consideration of the Judicial Power;

XXXVI – the law shall not injure the vested right, the perfect juridical act

and the res judicata ;

XXXVII – there shall be no exceptional tribunal or court;

XXXVIII – the institution of the jury is recognized, according to the

organization which the law shall establish, and the following are ensured:

a) full defense;b) secrecy of voting;c) sovereignty of verdicts;d) power to judge willful crimes against life;XXXIX – there is no crime without a previous law to define it, nor a punishment

without a previous legal commination;

XL – penal law shall not be retroactive, except to benefit the defendant;X

li

– the law shall punish any discrimination which may attempt against

fundamental rights and liberties;

miolo_constitution_versao_camara.indd 17 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 18

XLII – the practice of racism is a non-bailable crime, with no limitation, subject

to the penalty of confinement, under the terms of the law;

XLIII – the practice of torture, the illicit traffic of narcotics and related drugs, as

well as terrorism, and crimes defined as heinous crimes shall be considered by law as

non-bailable and not subject to grace or amnesty, and their principals, agents, and those who omit themselves while being able to avoid such crimes shall be held liable;

X

l

iv

– the action of armed groups, either civil or military, against the constitutional

order and the democratic state is a non-bailable crime, with no limitation;

X

lv

– no punishment shall go beyond the person of the convict, and the

obligation to compensate for the damage, as well as the decreeing of loss of assets may, under the terms of the law, be extended to the successors and executed against them, up to the limit of the value of the assets transferred;

XLVI – the law shall regulate the individualization of punishment and shall

adopt the following, among others:

a) deprivation or restriction of freedom;

b) loss of assets;c) fine;d) alternative rendering of social service;e) suspension or deprivation of rights;XLVII – there shall be no punishment:a) of death, save in case of declared war, under the terms of article 84, XIX;b) of life imprisonment;c) of hard labour;d) of banishment;e) which is cruel;X

lviii

– the sentence shall be served in separate establishments, according

to the nature of the offense, the age and the sex of the convict;

XLIX – prisoners are ensured of respect to their physical and moral integrity;

l

– female prisoners shall be ensured of adequate conditions to stay with their

children during the nursing period;

LI – no Brazilian shall be extradited, except the naturalized ones in the case

of a common crime committed before naturalization, or in the case there is sufficient

evidence of participation in the illicit traffic of narcotics and related drugs, under the terms of the law;

lii

– extradiction of a foreigner on the basis of political or ideological crime

shall not be granted;

l

iii

– no one shall undergo legal proceeding or sentencing save by the

competent authority;

miolo_constitution_versao_camara.indd 18 17/6/2010 15:01:00

Fundamental Rights and Guarantees 19

liv – no one shall be deprived of freedom or of his assets without the due

process of law;

LV – litigants, in judicial or administrative processes, as well as defendants

in general are ensured of the adversary system and of full defense, with the means

and resources inherent to it;

LVI – evidence obtained through illicit means are unacceptable in the process;

LVII – no one shall be considered guilty before the issuing of a final and

unappealable penal sentence;

LVIII – no one who has undergone civil identification shall be submitted to

criminal identification, save in the cases provided by law;

LIX – private prosecution in the cases of crimes subject to public prosecution

shall be admitted, whenever the latter is not filed within the period established by

law;

lX

– the law may only restrict the publicity of procedural acts when the defense

of privacy or the social interest require it;

l

Xi

– no one shall be arrested unless in flagrante delicto or by a written

and justified order of a competent judicial authority, save in the cases of military transgression or specific military crime, as defined in law;

l

X

ii

– the arrest of any person as well as the place where he is being held

shall be immediately informed to the competent judge and to the family of the person arrested or to the person indicated by him;

lXi

ii

– the arrested person shall be informed of his rights, among which the right

to remain silent, and he shall be ensured of assistance by his family and a lawyer;

LXIV – the arrested person is entitled to identification of those responsible for

his arrest or for his police questioning;

LXV – illegal arrest shall be immediately remitted by the judicial authority;

LXVI – no one shall be taken to prison or held therein, when the law admits

release on own recognizance, subject or not to bail;

lXv

ii

– there shall be no civil imprisonment for indebtedness except in the case

of a person responsible for voluntary and inexcusable default of alimony obligation

and in the case of an unfaithful trustee;

l

X

viii

– habeas corpus shall be granted whenever a person suffers or is in

danger of suffering violence or coercion against his freedom of locomotion, on account of illegal actions or abuse of power;

l

X

i

X – a writ of mandamus shall be issued to protect a clear and perfect right,

not covered by habeas corpus or habeas data, whenever the party responsible for the

illegal actions or abuse of power is a public official or an agent of a corporate legal entity exercising duties of the Government;

LXX – a collective writ of mandamus may be filed by:

a) a political party represented in the National Congress;

miolo_constitution_versao_camara.indd 19 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 20

b) a union, a professional association or an association legally constituted and

in operation for at least one year, to defend the interests of its members or

associates;

LXXI – a writ of injunction shall be granted whenever the absence of a

regulatory provision disables the exercise of constitutional rights and liberties, as well as the prerogatives inherent to nationality, sovereignty and citizenship;

l

XX

ii

– habeas data shall be granted:

a) to ensure the knowledge of information related to the person of the petitioner,

contained in records or data banks of government agencies or of agencies of a public character;

b) for the correction of data, when the petitioner does not prefer to do so through

a confidential process, either judicial or administrative;

LXXIII – any citizen is a legitimate party to file a people’s legal action with a

view to nullifying an act injurious to the public property or to the property of an entity in which the

st

ate participates, to the administrative morality, to the environment, and

to the historic and cultural heritage, and the author shall, save in the case of proven bad faith, be exempt from judicial costs and from the burden of defeat;

l

XX

iv

– the s

tate shall provide full and free-of-charge legal assistance to all

who prove insufficiency of funds;

LXXV – the State shall compensate a convict for judicial error, as well as a

person who remains imprisoned for a period longer than the one established by the sentence;

LXXVI – for all who are acknowledgedly poor, the following is free of charge,

under the terms of the law:

a) civil birth certificate;

b) death certificate;

l

XX

vii

– habeas corpus and habeas data proceedings and, under the terms

of the law, the acts necessary to the exercise of citizenship are free of charge;

l

XX

viii

– a reasonable length of proceedings and the means to guarantee

their expeditious consideration are ensured to everyone, both in the judicial and

administrative spheres.

Paragraph 1. T

he provisions defining fundamental rights and guarantees are

immediately applicable.

pa

ragraph 2.

t

he rights and guarantees expressed in this co

nstitution do not

exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party .

pa

ragraph 3.

in

ternational human rights treaties and conventions which are

approved in each h

ouse of the n

ational c

ongress, in two rounds of voting, by three

fifths of the votes of the respective members shall be equivalent to constitutional amendments.

1

1 see international a cts equivalent to c onstitutional a mendments.

miolo_constitution_versao_camara.indd 20 17/6/2010 15:01:00

Fundamental Rights and Guarantees 21

Paragraph 4. Brazil accepts the jurisdiction of an International Criminal Court to

whose creation it has expressed its adhesion.

CH

a

P

te

R

ii

s

ocial

r

ights

a

rticle 6.

Education,

health, food, work, housing, leisure, security, social security,

protection of motherhood and childhood, and assistance to the destitute are social

rights, as set forth by this Constitution. (CA No. 26, 2000; CA No. 64, 2010)

a

rticle 7.

The

following are rights of urban and rural workers, among others that

aim to improve their social conditions: (CA No. 20, 1998; CA No. 28, 2000; CA No. 53, 2006)

i

– employment protected against arbitrary dismissal or against dismissal

without just cause, in accordance with a supplementary law which shall establish severance-pay, among other rights;

II – unemployment insurance, in the event of involuntary unemployment;

III – severance-pay fund;IV – nationally unified minimum monthly wage, established by law, capable

of satisfying their basic living needs and those of their families with housing, food,

education, health, leisure, clothing, hygiene, transportation, and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to use it as an index for any purpose;

V – a salary floor in proportion to the extent and complexity of the work;

v

i

– irreducibility of the wages, except when established in collective

agreement or covenant;

vii

– guarantee of wages never below the minimum one, for those receiving

variable pay;

viii

– year-end one-salary bonus based on the full pay or on the amount of

the pension;

IX – payrate for night-shift work higher than that for daytime work;

X – wage protection, as provided by law, with felonious withholding of wages

being a crime;

Xi

– participation in the profits or results, independent of wages, and,

exceptionally, participation in the management of the company, as defined by law;

XII – family allowance paid to each dependent of low-income workers, under

the terms of the law;

XIII – normal working hours not exceeding eight hours per day and forty-four

hours per week, with the option of compensating working hours and reducing the

length of the workday through an agreement or a collective bargaining covenant;

XIV – a workday of six hours for work carried out in continuous shifts, unless

otherwise established by collective bargaining;

miolo_constitution_versao_camara.indd 21 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 22

XV – paid weekly leave, preferably on Sundays;

XVI – rate of pay for overtime at least fifty per cent higher than that of normal

work;

X

vii

– annual vacation with remuneration at least one third higher than the

normal salary;

XVIII – maternity leave without loss of job and of salary, for a period of one

hundred and twenty days;

XIX – paternity leave, under the terms established by law;XX – protection of the labour market for women through specific incentives,

as provided by law;

XX

i

– advance notice of dismissal in proportion to the length of service, of at

least thirty days, as provided by law;

XXII – reduction of employment related risks by means of health, hygiene

and safety rules;

XXIII – additional remuneration for strenuous, unhealthy or dangerous work,

as established by law;

XXIV – retirement pension;XXV – free assistance for children and dependents of up to five years of age,

in day-care centres and pre-school facilities;

XXVI – recognition of collective bargaining agreements and covenants;XXVII – protection on account of automation, as established by law;XX

v

iii

– occupational accident insurance, to be paid for by the employer, without

excluding the employer’s liability for indemnity in the event of malice or fault;

XXiX

– legal action, with respect to credits arising from employment

relationships, with a limitation of five years for urban and rural workers, up to the

limit of two years after the end of the employment contract;

a) (revoked);

b) (revoked);XXX – prohibition of any difference in wages, in the performance of duties

and in hiring criteria by reason of sex, age, colour or marital status;

XXX

i

– prohibition of any discrimination with respect to wages and hiring

criteria of handicapped workers;

XXX i

i

– prohibition of any distinction between manual, technical, and

intellectual work or among the respective professionals;

XXXIII – prohibition of night, dangerous, or unhealthy work for minors under

eighteen years of age, and of any work for minors under sixteen years of age, except

as an apprentice, for minors above fourteen years of age;

XXXIV – equal rights for workers with a permanent employment bond and

for sporadic workers.

miolo_constitution_versao_camara.indd 22 17/6/2010 15:01:00

Fundamental Rights and Guarantees 23

Sole paragraph. t he category of domestic servants is ensured of the rights set

forth in items iv, vi

, viii

, X

v,

X

vii

, X

viii

, X

i

X, XX

i

and XX

iv,

as well as of

integration in the social security system.

a

rticle 8. Professional or union association is free, with regard for the following:

I

– the law may not require authorization of the State for a union to be founded,

except for authorization for registration with the competent agency, it being forbidden

to the Government the interference and the intervention in the union;

ii

– it is forbidden to create more than one union, at any level, representing a

professional or economic category, in the same territorial base, which shall be defined by the workers or employers concerned, which base may not cover less than the area of one municipality;

i

ii

– it falls to the union to defend the collective or individual rights and interests

of the category, including legal or administrative disputes;

i

v

– the general assembly shall establish the contribution which, in the

case of a professional category, shall be discounted from the payroll, to support the confederative system of the respective union representation, regardless of the contribution set forth by law;

V – no one shall be required to join or to remain a member of a union;

vi

– the collective labour bargainings must be held with the participation of

unions;

VII – retired members shall be entitled to vote and be voted on in unions;

viii

– the dismissal of a unionised employee is forbidden from the moment

of the registration of his candidacy to a position of union direction or representation and, if elected, even if as a substitute, up to one year after the end of his term in office, unless he commits a serious fault as established by law.

Sole paragraph.

The

provisions of this article apply to the organization of rural

unions and those of fishing communities, with due regard for the conditions established by law.

ar

ticle 9. T

he right to strike is guaranteed, it being the competence of the workers to

decide on the advisability of exercising it and on the interests to be defended thereby.

Paragraph 1.

The

law shall define the essential services or activities and shall

provide with respect to the satisfaction of the community’s undelayable needs.

Paragraph 2. T

he abuses committed shall subject those responsible to the penalties

of the law.

a

rticle 10.

The

participation of workers and employers is ensured in the collegiate

bodies of government agencies in which their professional or social security interests are subject of discussion and resolution.

a

rticle 11.

i

t is ensured, in companies with more than 200 employees, the election

of a representative of the employees for the exclusive purpose of furthering direct negotiations with the employers.

miolo_constitution_versao_camara.indd 23 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 24

CHaPteR iii

n

ationality

a

rticle 12.

The

following are Brazilians: (RCA No. 3, 1994; CA No. 23, 1999; CA

No. 54, 2007)

I – by birth:

a) those born in the Federative Republic of Brazil, even if of foreign parents,

provided that they are not at the service of their country;

b) those born abroad, of a Brazilian father or a Brazilian mother, provided that

either of them is at the service of the Federative Republic of Brazil;

c) those born abroad, to a Brazilian father or a Brazilian mother, provided that

they are registered with a competent Brazilian authority, or come to reside

in the Federative Republic of Brazil, and opt for the Brazilian nationality at any time after reaching majority;

II – naturalized:

a) those who, as set forth by law, acquire Brazilian nationality, it being the only

requirement for persons originating from Portuguese-speaking countries the

residence for one uninterrupted year and good moral repute;

b) foreigners of any nationality, resident in the Federative Republic of Brazil for

over fifteen uninterrupted years and without criminal conviction, provided that they apply for the Brazilian nationality.

Paragraph 1.

The

rights inherent to Brazilians shall be attributed to Portuguese

citizens with permanent residence in Brazil, if there is reciprocity in favour of Brazilians, except in the cases stated in this Constitution.

pa

ragraph 2.

th

e law may not establish any distinction between born and

naturalized Brazilians, except in the cases stated in this Constitution.

Paragraph 3.

The following offices are exclusive for born Brazilians:

I – those of President and

Vice-President of the Republic;

II – that of President of the Chamber of Deputies;

III – that of President of the Federal Senate;IV – that of Justice of the Supreme Federal Court;V – those of the diplomatic career;VI – that of officer of the Armed Forces;

vii

– that of Minister of

d

efense.

Paragraph 4.

Loss of nationality shall be declared for a Brazilian who:

I

– has his naturalization cancelled by court decision on account of an activity

harmful to the national interests;

II – acquires another nationality, save in the cases: a) of recognition of the original nationality by the foreign law;

miolo_constitution_versao_camara.indd 24 17/6/2010 15:01:00

Fundamental Rights and Guarantees 25

b) of imposition of naturalization, under the foreign rules, to the Brazilian

resident in a foreign s

tate, as a condition for permanence in its territory, or

for the exercise of civil rights.

ar

ticle 13. P

ortuguese is the official language of the Federative Republic of

Brazil.

Paragraph 1.

The

national flag, anthem, coat of arms and seal are the symbols of

the Federative Republic of Brazil.

p

aragraph 2.

t

he states, the f

ederal d

istrict and the municipalities may have

symbols of their own.

CH

a

P

te

R

i

V

p

olitical

r

ights

a

rticle 14.

t

he sovereignty of the people shall be exercised by universal suffrage

and by the direct and secret voting, with equal value for all, and, according to the law,

by means of: (RCA No. 4, 1993; CA No. 16, 1997)

I – plebiscite;

II – referendum;III – people’s initiative.

Paragraph 1.

Electoral enrollment and voting are:

I – mandatory for persons over eighteen years of age;II – optional for:a) the illiterate;b) those over seventy years of age;c) those over sixteen and under eighteen years of age.

pa

ragraph 2.

fo

reigners cannot register as voters and neither can conscripts during

their period of compulsory military service;

Paragraph 3.

The conditions for eligibility

, according to the law, are:

I – the Brazilian nationality;II – the full exercise of the political rights;III – the electoral enrollment;IV – the electoral domicile in the electoral district;V – the membership in a political party;VI – the minimum age of:a) thirty-five years for President and Vice-President of the Republic and

Senator;

b) thirty years for Governor and

vice-Governor

of a state and of the f

ederal

District;

miolo_constitution_versao_camara.indd 25 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 26

c) twenty-one years for fe deral de puty, st ate or di strict de puty, Mayor, vi ce-

Mayor, and justice of the peace;

d) eighteen years for

c

ity

c

ouncilman.

p

aragraph 4.

t

he illiterate and those that cannot be registered as voters are not

eligible.

pa

ragraph 5.

th

e pr

esident of the re

public, the st

ate and fe

deral di

strict

Governors, the Mayors and those who have succeeded or replaced them during their

terms of office may be reelected for only one subsequent term.

Paragraph 6. I

n order to run for other offices, the President of the Republic,

the s

tate and f

ederal d

istrict Governors and the Mayors have to resign from their

respective offices at least six months in advance of the election.

Paragraph 7.

The

spouse and relatives by blood or marriage, up to the second

degree or by adoption, of the p

resident of the r

epublic, of the Governor of a s

tate

or territ

ory or of the f

ederal d

istrict, of a Mayor or of those who have replaced

them within the six months preceding the election, are not eligible in the jurisdiction of the incumbent, unless they already hold an elective office and are candidates for re-election.

p

aragraph 8.

a

member of the a

rmed f

orces that can be registered as voter is

eligible if the following conditions are met:

I – if he has less than ten years of service, he shall have to take leave from

military activities;

ii

– if he has more than ten years of service, he shall be discharged of military

duties by his superiors and, if elected, he shall automatically pass into retirement upon the issuing of the official certificate of electoral victory.

p

aragraph 9.

i

n order to protect the administrative probity, the morality for the

exercise of the office, the previous life of the candidate being considered, and the normality and legitimacy of the elections against the influence of the economic power or of the abuse in the holding of office, position or job in the direct or indirect public administration, a supplementary law shall establish other cases of ineligibility and the periods for such ineligibilities to cease.

p

aragraph 10.

t

he exercise of an elective mandate may be impugned before the

Electoral Courts within a period of fifteen days after the date of the issuing of the official certificate of electoral victory, substantiating the suit with evidence of abuse of economic power, corruption or fraud.

Paragraph 11.

The

procedure of the suit impugning the office shall be secret, and

the plaintiff shall be liable under the law if the suit is reckless or involves manifest bad faith.

a

rticle 15.

d

isfranchisement of political rights is forbidden, the loss or suspension

of which rights shall apply only in the event of:

I – cancellation of naturalization by a final and unappealable judgement;

II – absolute civil incapacity;

miolo_constitution_versao_camara.indd 26 17/6/2010 15:01:00

Fundamental Rights and Guarantees 27

III – final and unappealable criminal sentence, for as long as its ef fects last;

iv

– refusal to comply with an obligation imposed upon everyone or to render

an alternative service, according to article 5, VIII;

V – administrative dishonesty, according to article 37, paragraph 4.

a

rticle 16.

t

he law that alters the electoral procedure shall come into force on the

date of its publication, and shall not apply to the elections that take place within one

year of it being in force. (

ca

n

o. 4, 1993)

CH

a

P

te

R V

p

olitical

p

arties

ar

ticle 17.

th

e creation, amalgamation, merger and extinction of political parties is

free, with due regard for national sovereignty, the democratic regime, the plurality of political parties, the fundamental rights of the individual, and observing the following precepts: (CA No. 52, 2006)

I – national character;

II – prohibition from receiving financial assistance from a foreign entity or

government or from subordination to same;

III – rendering of accounts to the Electoral Courts;

iv – operation in the

n

ational

c

ongress in accordance with the law.

Paragraph 1.

Political

parties are ensured of autonomy to define their internal

structure, organization, and operation, and to adopt the selection criteria and the

composition of their electoral coalitions, without being required to follow the same party alliances at the national, state,

f

ederal d

istrict, or municipal levels, and their

by-laws shall establish rules of party loyalty and discipline.

pa

ragraph 2.

af

ter acquiring corporate legal status under civil law, political parties

shall register their by-laws at the

s

uperior

e

lectoral

c

ourt.

p

aragraph 3.

p

olitical parties are entitled to monies from the party fund and to

free-of-charge access to radio and television, as established by law.

Paragraph 4.

Political parties are forbidden to use paramilitary or

ganizations.

miolo_constitution_versao_camara.indd 27 17/6/2010 15:01:00

The Organization of the State 29

title iii

t

he

o

rganization of the

s

tate

CHaPteR i

The Political and

Administrative Organization

ar

ticle 18. T

he political and administrative organization of the Federative Republic

of Brazil comprises the Union, the states, the Federal District and the municipalities,

all of them autonomous, as this

c

onstitution provides. (

ca

n

o. 15, 1996)

p

aragraph 1.

b

rasília is the federal capital.

p

aragraph 2.

t

he federal territories are part of the u

nion and their establishment,

transformation into states or reintegration into the state of origin shall be regulated by a supplementary law.

p

aragraph 3.

the

states may merge into each other, subdivide or dismember to be

annexed to others or to form new states or federal territories, subject to the approval of the population directly concerned, by means of a plebiscite, and of the

n

ational

c

ongress, by means of a supplementary law.

pa

ragraph 4.

th

e establishment, merger, fusion and dismemberment of

municipalities shall be effected through state law, within the period set forth by supplementary federal law, and shall depend on prior consultation, by means of a plebiscite, of the population of the municipalities concerned, after the publication of Municipal

f

easibility

s

tudies, presented and published as set forth by law.

a

rticle 19.

t

he u

nion, the states, the f

ederal d

istrict and the municipalities are

forbidden to:

I – establish religious sects or churches, subsidize them, hinder their activities,

or maintain relationships of dependence or alliance with them or their representatives, without prejudice to collaboration in the public interest in the manner set forth by law;

II – refuse to honour public documents;

III – create distinctions between Brazilians or preferences favouring some.

CH

a

P

te

R

ii

t

he

u

nion

a

rticle 20. The following are property of the Union: (CA

No. 46, 2005)

i

– the property which presently belongs to it as well as that which may be

attributed to it;

i

i

– the unoccupied lands essential to the defense of the boundaries, the

fortifications and military constructions, the federal routes of communication and the

preservation of the environment, as defined by law;

miolo_constitution_versao_camara.indd 29 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 30

III – the lakes, rivers and any watercourses in lands within its domain, or that

wash more than one state, that serve as boundaries with other countries, or that extend

into foreign territory or proceed therefrom, as well as bank lands and river beaches;

IV – the river and lake islands in zones bordering with other countries;

sea beaches; ocean and off-shore islands, excluding those which are the seat of Municipalities, with the exception of areas assigned to public services and to federal environmental units, and those referred to in article 26, II;

v

– the natural resources of the continental shelf and of the exclusive economic

zone;

VI – the territorial sea;

VII – tide lands and those added to them;VIII – the hydraulic energy potentials;IX – the mineral resources, including those of the subsoil;X – the natural underground cavities and the archaeological and pre-historic

sites;

X

i

– those lands traditionally occupied by the

i

ndians.

p

aragraph 1.

i

n accordance with the law, the participation in the results of the

exploitation of petroleum or natural gas, hydric resources for the purpose of generation

of electric power and other mineral resources in the respective territory, continental shelf, territorial sea or exclusive economic zone, or financial compensation for the exploitation thereof, is assured to the states, the

fe

deral di

strict and the municipalities,

as well as to agencies of the direct administration of the

u

nion.

Paragraph 2. T

he strip of land up to a hundred and fifty kilometers in width

alongside the terrestrial boundaries, designated as boundary zone, is considered essential to the defense of the national territory and its occupation and utilization shall be regulated by law.

a

rticle 21.

The

Union shall have the power to: (CA No. 8, 995; CA No. 19, 1998;

ca

n

o. 49, 2006)

i

– maintain relations with foreign states and participate in international

organizations;

II – declare war and make peace;

III – ensure national defense;

iv

– allow foreign forces, in the cases provided for in a supplementary law, to

pass through the national territory or to remain therein temporarily;

V – declare a state of siege, a state of defense and federal intervention;VI – authorize and control the production and trade of military matériel;VII – issue currency;

v

iii

– manage the foreign exchange reserves of the country and control

financial operations, especially those of credit, exchange and capitalization, as well

as insurance and private security;

miolo_constitution_versao_camara.indd 30 17/6/2010 15:01:00

The Organization of the State 31

iX – prepare and carry out national and regional plans for the ordaining of the

territory and for economic and social development;

X – maintain the postal service and the national air mail;

X

I – operate, directly or through authorization, concession or permission,

the telecommunications services, as set forth by law, which law shall provide for

the organization of the services, the establishment of a regulatory agency and other institutional issues;

XII – operate, directly or through authorization, concession or permission:

a) the services of sound broadcasting and of sound and image broadcasting; b) the electric power services and facilities and the energetic exploitation of

watercourses, jointly with the states wherein those hydroenergetic potentials

are located;

c) air and aerospace navigation and airport infrastructure;

d) railway and waterway services between seaports and national borders or

which cross the boundary of a state or territory;

e) interstate and international highway passenger transportation services;f) sea, river and lake ports;XIII – organize and maintain the Judicial Power, the Public Prosecution and

the Public Legal Defense of the Federal District and territories;

XIV – organize and maintain the plainclothes police, the uniformed police

force, and the uniformed fire brigade of the Federal District, as well as to provide

financial support to the Federal District for the carrying out of public services by means of a specific fund;

XV – organize and maintain the official services of statistics, geography,

geology and cartography of national scope;

X

vi

– classify, for indicative purposes, public entertainment and radio and

television programs;

XVII – grant amnesty;

Xv

iii

– plan and promote permanent defense against public disasters,

especially droughts and floods;

X

i

X – establish a national system for the management of hydric resources and

define criteria for the concession of the right to their use;

XX – establish directives for urban development, including housing, basic

sanitation and urban transportation;

XXI – establish principles and directives for the national transportation system;XXII – perform the services of maritime, airport, and border police; XX

i

ii

– operate nuclear energy services and facilities of any nature and exercise

state monopoly over research, mining, enrichment and reprocessing, industrialization

and trade in nuclear ores and their by-products, taking into account the following principles and conditions:

miolo_constitution_versao_camara.indd 31 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 32

a) all nuclear activity within the national territory shall only be admitted for

peaceful purposes and subject to approval by the National Congress;

b) under a permission, authorization is granted for the sale and use of

radioisotopes in research and for medical, agricultural, and industrial

purposes;

c) under a permission, authorization is granted for the production, sale, and

use of radioisotopes with a half-life lower than two hours;

d) civil liability for nuclear damages does not depend on the existence of

fault;

XXIV – organize, maintain and carry out inspection of working conditions;

XX

v

– establish the areas and conditions for the exercise of placer mining

activities in associative form.

a

rticle 22. The Union has the exclusive power to legislate on: (CA

No. 19, 1998)

i

– civil, commercial, criminal, procedural, electoral, agrarian, maritime,

aeronautical, space and labour law;

II – expropriation;

iii

– civil and military requisitioning, in case of imminent danger or in times

of war;

IV – waters, energy, informatics, telecommunications and radio broadcasting;V – the postal service;VI – the monetary and measures systems, metal certificates and guarantees;VII – policies for credit, foreign exchange, insurance and transfer of values;VIII – foreign and interstate trade;IX – guidelines for the national transportation policy;X – the regime of the ports and lake, river, ocean, air and aerospace navigation;XI – traffic and transportation;XII – beds of ore, mines, other mineral resources and metallurgy;XIII – nationality, citizenship and naturalization;XIV – Indian populations;XV – emigration, immigration, entry, extradition and expulsion of foreigners;XVI – the organization of the national employment system and conditions for

the practice of professions;

XVII – the judicial organization of the Public Prosecution and of the

p

ublic l

egal d

efense of the f

ederal d

istrict and of the territories, as well as their

administrative organization;

XVIII – the national statistical, cartographic and geological systems;

miolo_constitution_versao_camara.indd 32 17/6/2010 15:01:00

The Organization of the State 33

XiX – systems of savings, as well as of obtaining and guaranteeing popular

savings;

XX – consortium and lottery systems;

XXI

– general organization rules, troops, matériel, guarantees, drafting and

mobilization of the military police and military fire brigades;

XXII – the jurisdiction of the federal police and of the federal highway and

military polices;

XXIII – social security;XXIV – directives and bases of the national education;XXV – public registers;XXVI – nuclear activities of any nature;XX

v

ii

– general rules for all types of bidding and contracting for governmental

entities, associate government agencies, and foundations of the un

ion, the st

ates, the

Federal District, and the Municipalities, in accordance with article 37, XXI, and for public

enterprises and joint stock companies, under the terms of article 173, paragraph 1, III;

XXv

iii

– territorial defense, aerospace defense, maritime defense, civil

defense, and national mobilization;

XX

i

X – commercial advertising.

Sole paragraph.

A

supplementary law may authorize the states to legislate upon

specific questions related to the matters listed in this article.

a

rticle 23.

t

he u

nion, the states, the f

ederal d

istrict and the municipalities, in

common, have the power: (CA No. 53, 2006)

i

– to ensure that the c

onstitution, the laws and the democratic institutions are

respected and that public property is preserved;

i

i

– to provide for health and public assistance, for the protection and safeguard

of handicapped persons;

III – to protect the documents, works and other assets of historical, artistic

or cultural value, the monuments, the remarkable landscapes and the archaeological sites;

IV – to prevent works of art and other assets of historical, artistic and cultural

value from being taken out of the country, destroyed or from being deprived of their original characteristics;

V – to provide the means of access to culture, education and science;

VI – to protect the environment and to fight pollution in any of its forms;VII – to preserve the forests, fauna and flora;VIII – to promote agriculture and organize the supply of foodstuff;

iX

– to promote housing construction programs and the improvement of

housing and basic sanitation conditions;

miolo_constitution_versao_camara.indd 33 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 34

X – to fight the causes of poverty and the factors leading to substandard

living conditions, promoting the social integration of the unpriviledged sectors of

the population;

X

i

– to register, monitor and control the concessions of rights to research and

exploit hydric and mineral resources within their territories;

XII – to establish and to implement an educational policy for traffic safety .

Sole paragraph. su

pplementary laws shall establish rules for the cooperation between

the fe

deral Government and the states, the fe

deral di

strict, and the municipalities, aiming

at the attainment of balanced development and well-being on a nationwide scope.

ar

ticle 24. th

e un

ion, the states and the fe

deral di

strict have the power to legislate

concurrently on:

I – tax, financial, penitentiary, economic and urbanistic law;

II – budget;III – trade boards;IV – costs of forensic services;V – production and consumption;VI – forests, hunting, fishing, fauna, preservation of nature, defense of the soil

and natural resources, protection of the environment and control of pollution;

vii

– protection of the historic, cultural and artistic heritage, as well as of

assets of touristic interest and landscapes of outstanding beauty;

viii

– liability for damages to the environment, to consumers, to assets and

rights of artistic, aesthetic, historical, and touristic value, as well as to remarkable

landscapes;

IX – education, culture, teaching and sports;

X – establishment, operation and procedures of small claims courts;XI – judicial procedures;XII – social security, protection and defense of health;XIII – legal assistance and public defense;XIV – protection and social integration of handicapped persons;XV – protection of childhood and youth;XVI – organization, guarantees, rights and duties of the civil polices.

Paragraph 1.

W

ithin the scope of concurrent legislation, the competence of the

u

nion shall be limited to the establishment of general rules.

p

aragraph 2.

t

he competence of the u

nion to legislate upon general rules does

not exclude the supplementary competence of the states.

p

aragraph 3.

i

f there is no federal law on general rules, the states shall exercise

full legislative competence to provide for their peculiarities.

miolo_constitution_versao_camara.indd 34 17/6/2010 15:01:00

The Organization of the State 35

paragraph 4. the supervenience of a federal law over general rules suspends the

ef

fectiveness of a state law to the extent that the two are contrary.

CH

a

P

te

R

iii

t

he

f

ederated

s

tates

ar

ticle 25. T

he states are organized and governed by the Constitutions and laws they

may adopt, in accordance with the principles of this

c

onstitution. (

ca

n

o. 5, 1995)

p

aragraph 1.

a

ll powers that this c

onstitution does not prohibit the states from

exercising shall be conferred upon them.

p

aragraph 2.

t

he states shall have the power to operate, directly or by means of

concession, the local services of piped gas, as provided for by law, it being forbidden

to issue any provisional measure for its regulation.

pa

ragraph 3.

th

e states may, by means of a supplementary law, establish

metropolitan regions, urban agglomerations and microregions, formed by the grouping of adjacent municipalities, in order to integrate the organization, the planning and the operation of public functions of common interest.

a

rticle 26.

The property of the states includes:

I

– surface or subterranean waters, flowing, emerging or in deposit, with the

exception, in this case, of those resulting from work carried out by the Union, as provided by law;

ii

– the areas, on ocean and coastal islands, which are within their domain,

excluding those under the domain of the Union, the municipalities or third parties;

III – the river and lake islands which do not belong to the Union;

i

v

– the unoccupied lands not included among those belonging to the

u

nion.

a

rticle 27.

t

he number of d

eputies in the l

egislative a

ssembly shall correspond

to three times the representation of the state in the c

hamber of d

eputies and, when

the number of thirty-six has been reached, it shall be increased by as many members as the number of

f

ederal

d

eputies exceeding twelve. (

ca

n

o. 19, 1998)

Paragraph 1.

The

term of office of the State Deputies shall be four years and the

provisions of this c

onstitution shall be applied to them in what refers to the electoral

system, inviolability, immunities, remuneration, loss of office, leave of absence, impediments, and incorporation into the

a

rmed

f

orces.

p

aragraph 2.

t

he compensation of s

tate d

eputies shall be established by an act

of the State Legislative Assembly, in the proportion of seventy-five percent, at most, of the compensation established, in legal tender, for

f

ederal d

eputies, as provided by

articles 39, paragraph 4; 57, paragraph 7; 150, II; 153, III; and 153, paragraph 2, I.

p

aragraph 3.

t

he l

egislative a

ssemblies shall have the power to provide upon

their internal regulations, police, and the administrative services of their s

ecretariat

and to fill in the respective offices.

miolo_constitution_versao_camara.indd 35 17/6/2010 15:01:00

Constitution of the Federative Republic of Brazil 36

Paragraph 4. T he law shall provide for the people’s initiative in the state legislative

process.

a

rticle 28.

t

he election of the Governor and the vice-Governor

of a state, for a

term of office of four years, shall be held on the first Sunday of October, in the first

round, and on the last s

unday of o

ctober, in the second round, as the case may be, of

the year preceding the one in which the term of office of their predecessors ends, and they shall take office on January 1 of the following year, in accordance, otherwise, with the provisions of article 77. (CA No. 16, 1997; CA No. 19, 1998)

Paragraph 1.

The

Governor who takes another post or function in governmental

entities or entities owned by the Government shall lose his office, with the exception of the taking of office by virtue of a public sector entrance examination, and with due regard for the provisions in article 38,

i

,

iv, and v.

pa

ragraph 2.

th

e compensation of the Governor, the vi

ce-Governor, and of the st

ate

ca

binet Members shall be established by an act of the st

ate le

gislative as

sembly, as

provided by articles 37, XI, 39, paragraph 4, 150, II, 153, III, and 153, paragraph 2, I.

CH

a

P

te

R

i

V

t

he Municipalities

a

rticle 29.

Municipalities

shall be governed by organic law, voted in two readings,

with a minimum interval of ten days between the readings, and approved by two-thirds of the members of the Municipal

c

hamber, which shall promulgate it, observing the

principles established in this

c

onstitution, in the

c

onstitution of the respective state

and the following precepts: (CA No. 1, 1992; CA No. 16, 1997; CA No. 19, 1998; CA No. 25, 2000; CA No. 58, 2009)

I – election of the Mayor, Vice-Mayor and Councilmen for a term of office of

four years, by means of direct election held simultaneously throughout the country;

II – election of the Mayor and Vice-Mayor on the first Sunday of October of

the year preceding the end of the term of office of those they are to succeed, subject, in the case of municipalities with over two hundred thousand voters, to the provisions set forth in article 77;

i

ii

– investiture of the Mayor and vi

ce-Mayor on January 1 of the year

subsequent to the year of the election;

i

v

– the following limits shall apply to the composition of Municipal

Chambers:

a) 9 (nine) councilmen, in Municipalities with up to 15,000 (fifteen thousand)

inhabitants;

b) 11 (eleven) councilmen, in Municipalities with over 15,000 (fifteen thousand)

inhabitants and with up to 30,000 (thirty thousand) inhabitants;

c) 13 (thirteen) councilmen, in Municipalities with over 30,000 (thirty thousand)

inhabitants and with up to 50,000 (fifty thousand) inhabitants;

d) 15 (fifteen) councilmen, in Municipalities with over 50,000 (fifty thousand)

inhabitants and with up to 80,000 (eighty thousand) inhabitants;

miolo_constitution_versao_camara.indd 36 17/6/2010 15:01:01

The Organization of the State 37

e) 17 (seventeen) councilmen, in Municipalities with over 80,000 (eighty

thousand) inhabitants and with up to 120,000 (one hundred and twenty

thousand) inhabitants;

f) 19 (nineteen) councilmen, in Municipalities with over 120,000 (one hundred

and twenty thousand) inhabitants and with up to 160,000 (one hundred and sixty thousand) inhabitants;

g) 21 (twenty-one) councilmen, in Municipalities with over 160,000 (one

hundred and sixty thousand) inhabitants and with up to 300,000 (three hundred thousand) inhabitants;

h) 23 (twenty-three) councilmen, in Municipalities with over 300,000 (three

hundred thousand) inhabitants and with up to 450,000 (four hundred and fifty thousand) inhabitants;

i) 25 (twenty-five) councilmen, in Municipalities with over 450,000 (four

hundred and fifty thousand) inhabitants and with up to 600,000 (six hundred thousand) inhabitants;

j) 27 (twenty-seven) councilmen, in Municipalities with over 600,000 (six

hundred thousand) inhabitants and with up to 750,000 (seven hundred thousand) inhabitants;

k) 29 (twenty-nine) councilmen, in Municipalities with over 750,000 (seven

hundred thousand) inhabitants and with up to 900,000 (nine hundred thousand) inhabitants;

l) 31 (thirty-one) councilmen, in Municipalities with over 900,000 (nine

hundred thousand) inhabitants and with up to 1,050,000 (one million and fifty thousand) inhabitants;

m) 33 (thirty-three) councilmen, in Municipalities with over 1,050,000 (one

million and fifty thousand) inhabitants and with up to 1,200,000 (one million and two hundred thousand) inhabitants;

n) 35 (thirty-five) councilmen, in Municipalities with over 1,200,000 (one

million and two hundred thousand) inhabitants and with up to 1,350,000 (one million three hundred and fifty thousand) inhabitants;

o) 37 (thirty-seven) councilmen, in Municipalities with 1,350,000 (one million

three hundred and fifty thousand) inhabitants and with up to 1,500,000 (one million five hundred thousand) inhabitants;

p) 39 (thirty-nine) councilmen, in Municipalities with over 1,500,000 (one

million five hundred thousand) inhabitants and with up to 1,800,000 (one million eight hundred thousand) inhabitants;

q) 41 (forty-one) councilmen, in Municipalities with over 1,800,000 (one

million eight hundred thousand) inhabitants and with up to 2,400,000 (two million four hundred thousand) inhabitants;

r) 43 (forty-three) councilmen, in Municipalities with over 2,400,000 (two

million four hundred thousand) inhabitants and with up to 3,000,000 (three million) inhabitants;

miolo_constitution_versao_camara.indd 37 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 38

s) 45 (forty-five) councilmen, in Municipalities with over 3,000,000 (three

million) inhabitants and with up to 4,000,000 (four million) inhabitants;

t) 47 (forty-seven) councilmen, in Municipalities with over 4,000,000 (four

million) inhabitants and with up to 5,000,000 (five million) inhabitants;

u) 49 (forty-nine) councilmen, in Municipalities with over 5,000,000 (five

million) inhabitants and with up to 6,000,000 (six million) inhabitants;

v) 51 (fifty-one) councilmen, in Municipalities with over 6,000,000 (six

million) inhabitants and with up to 7,000,000 (seven million) inhabitants;

w) 53 (fifty-three) councilmen, in Municipalities with over 7,000,000 (seven

million) inhabitants and with up to 8,000,000 (eight million) inhabitants;

and

x) 55 (fifty-five) councilmen, in Municipalities with over 8,000,000 (eight

million) inhabitants;

v

– compensation of the Mayor, the vi

ce-Mayor, and the lo

cal ca

binet

Members established by an act of the Town Council, as provided by articles 37, XI, 39, paragraph 4, 150, II, 153, III, and 153, paragraph 2, I;

v

i

– the compensation of lo

cal co

uncilmen shall be stipulated by their

respective town c

ouncils in each legislative term for the subsequent one, with due

regard for the provisions of this c

onstitution, in accordance with the criteria set forth

in the respective Organic Law and the following maximum limits:

a) i

n Municipalities having up to ten thousand inhabitants, the compensation

of l

ocal c

ouncilmen shall correspond, at the most, to twenty percent of

the compensation of State Deputies;

b) in Municipalities having between ten thousand and fifty thousand inhabitants,

the compensation of l

ocal c

ouncilmen shall correspond, at the most, to

thirty percent of the compensation of State Deputies;

c) in Municipalities having between fifty thousand and one inhabitants and

one hundred thousand inhabitants, the compensation of l

ocal c

ouncilmen

shall correspond, at the most, to forty percent of the compensation of s

tate

Deputies;

d) in Municipalities having between one hundred thousand and one

inhabitants and three hundred thousand inhabitants, the compensation of Local Councilmen shall correspond, at the most, to fifty percent of the compensation of State Deputies;

e) in Municipalities having between three hundred thousand and one

inhabitants and five hundred thousand inhabitants, the compensation of

l

ocal c

ouncilmen shall correspond, at the most, to sixty percent of the

compensation of State Deputies;

f) in Municipalities having over five hundred thousand inhabitants, the

compensation of lo

cal co

uncilmen shall correspond, at the most, to seventy-

five percent of the compensation of State Deputies;

miolo_constitution_versao_camara.indd 38 17/6/2010 15:01:01

The Organization of the State 39

vii – the total expenditure with the remuneration of the c ity c ouncilmen may

not exceed the amount of five percent of the revenue of the Municipality;

v

iii

– inviolability of the co

uncilmen on account of their opinions, words and

votes while in office and within the jurisdiction of the municipality;

IX – prohibitions and incompatibilities, while in the exercise of the office of

c

ity c

ouncilman, similar, where applicable, to the provisions of this c

onstitution for

the members of the n

ational c

ongress and of the c

onstitution of the respective state

for the members of the Legislative Assembly;

X – trial of the Mayor before the Court of Justice;

XI – organization of the legislative and supervisory functions of the Municipal

Chamber;

XII – cooperation of the representative associations in municipal planning; XIII – public initiative in the presenting of bills of specific interest to the

municipality, the city or the neighborhoods, by means of the manifestation of at least

five percent of the electorate;

XIV – loss of the office of mayor, as provided in article 28, sole paragraph.

2

ar ticle 29- a. th e total expenditures of the Municipal le gislative br anch, including

the compensation of l

ocal c

ouncilmen and excluding outlays on retired personnel,

may not exceed the following percentages, related to the total amount, effectively realized in the prior year, of tax revenues and the transfers set forth in paragraph 5 of article 153, and in articles 158 and 159: (CA No. 25, 2000; CA No. 58, 2009)

I – 7% (seven percent) in the case of Municipalities having up to 100,000 (one

hundred thousand) inhabitants;

II – 6% (six percent) in the case of Municipalities having between 100,000

(one hundred thousand) and 300,000 (three hundred thousand) inhabitants;

III – 5% (five percent) in the case of Municipalities having between 300,001

(three hundred thousand and one) inhabitants and 500,000 (five hundred thousand) inhabitants;

IV – 4.5% (four and five tenths per cent) in the case of Municipalities having

between 500,001 (five hundred thousand and one) and 3,000,000 (three million) inhabitants;

V – 4% (four percent) in the case of Municipalities having between 3,000,001

(three million and one) and 8,000,000 (eight million) inhabitants;

VI – 3.5% (three and five tenths per cent) in the case of Municipalities having

over 8,000,001 (eight million and one) inhabitants.

p

aragraph 1.

t

he town c

ouncil shall not spend more than seventy percent of

its allocation on the payroll, including expenses on the compensation of its member councilmen.

2 should read as “paragraph 1”, by virtue of the provisions of a rticle 2 of ca no. 19/1998.

miolo_constitution_versao_camara.indd 39 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 40

pa ragraph 2. th e following acts of the Municipal Mayor are crimes of

malversation:

I – to effect a remittance in excess of the limits stipulated in this article;

II – not to effect a remittance before the twentieth day of each month;

iii

– to effect a remittance below the proportion stipulated in the b

udgetary

l

aw.

p

aragraph 3.

i

t shall be a crime of malversation for the p

resident of the town

c

ouncil to disobey paragraph 1 of this article.

a

rticle 30. The municipalities have the power to: (CA

No. 53, 2006)

I – legislate upon matters of local interest;II – supplement federal and state legislations where pertinent;III – institute and collect taxes within their jurisdiction, as well as to apply their

revenues, without prejudice to the obligation of rendering accounts and publishing

balance sheets within the periods established by law;

IV – create, organize and suppress districts, with due regard for the state

legislation;

V – organize and render, directly or by concession or permission, the public

services of local interest, including mass-transportation, which is of essential nature;

VI – maintain, with the technical and financial cooperation of the Federal

Government and the state, programs of infant and elementary school education;

VII – provide, with the technical and financial cooperation of the Union and

the state, health services to the population;

viii

– promote, wherever pertinent, adequate territorial ordaining, by means

of planning and control of use, apportionment and occupation of the urban soil;

i

X – promote the protection of the local historic and cultural heritage, with

due regard for federal and state legislation and supervision.

a

rticle 31.

s

upervision of the municipality shall be exercised by the municipal

legislature, through outside control, and by the internal control systems of the municipal executive branch, in the manner called for by law.

pa

ragraph 1.

ou

tside control of the Municipal ch

amber shall be exercised with the

assistance of the state or municipal a

udit c

ourt, or of the Municipal a

udit c

ouncils

or

c

ourts, where they exist.

p

aragraph 2.

th

e prior report, issued by the competent agency, on the accounts to

be rendered annually by the Mayor, shall not prevail only by a decision of two-thirds of the members of the

c

ity

c

ouncil.

pa

ragraph 3.

th

e accounts of the municipalities shall remain, for sixty days

annually, at the disposal, for examination and consideration, of any taxpayer, who may question their legitimacy, as the law provides.

miolo_constitution_versao_camara.indd 40 17/6/2010 15:01:01

The Organization of the State 41

paragraph 4. the creation of municipal courts, councils or agencies of accounts

is forbidden.

CH

a

P

te

R V

t

he

f

ederal

d

istrict and the territories

se

C

tion

i

t

he

f

ederal

d

istrict

ar

ticle 32.

th

e fe

deral di

strict, which may not be divided into municipalities, shall

be governed by an organic law, voted in two readings, with a minimum interval of

ten days, and approved by two-thirds of the l

egislative c

hamber, which shall enact

it, in accordance with the principles set forth in this

c

onstitution.

p

aragraph 1.

t

he legislative powers reserved to the states and municipalities are

attributed to the

f

ederal

d

istrict.

p

aragraph 2.

t

he election of the Governor and the vice-Governor

, complying

with the rules of article 77, and of the District Deputies shall coincide with that of the state Governors and Deputies, for a term of office of the same duration.

Paragraph 3.

The

provisions of article 27 apply to the District Deputies and the

l

egislative

c

hamber.

p

aragraph 4.

a

federal law shall provide for the use, by the Government of the

Federal District, of the civil and military polices and the military fire brigade.

se

C

tion

ii

t

he territories

a

rticle 33.

The

law shall provide for the administrative and judicial organization

of the territories.

p

aragraph 1.

t

he territories may be divided into municipalities, to which the

provisions of

c

hapter

iv of this title shall be applied, insofar as pertinent.

p

aragraph 2.

t

he accounts of the Government of the territory shall be submitted

to the

n

ational

c

ongress, with the prior opinion of the

f

ederal a

udit

c

ourt.

p

aragraph 3.

i

n the federal territories with over a hundred thousand inhabitants,

in addition to the Governor, appointed as set forth in this c

onstitution, there shall be

judicial agencies of first and second instances, members of the Public Prosecution and Federal Public Legal Defenders; the law shall provide for the elections to the Territory Chamber and its decision-making powers.

CH

a

P

te

R V

i

i

ntervention

a

rticle 34.

t

he u

nion shall not intervene in the states or in the f

ederal d

istrict,

except: (CA No. 14, 1996; CA No. 29, 2000)

miolo_constitution_versao_camara.indd 41 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 42

I – to maintain national integrity;

II – to repel foreign invasion or that of one unit of the Federation into another;III – to put an end to serious jeopardy to public order;

iv

– to guarantee the free exercise of any of the powers of the units of the

Federation;

V – to reorganize the finances of a unit of the Federation that:a) stops the payment of its funded debt for more than two consecutive years,

except for reasons of force majeure;

b) fails to deliver to the municipalities the tax revenues established in this

Constitution, within the periods of time set forth by law;

VI – to provide for the enforcement of federal law, judicial order or decision;VII – to ensure compliance with the following constitutional principles:

a) republican form, representative system and democratic regime;b) rights of the human person;c) municipal autonomy;d) rendering of accounts of the direct and indirect public administration;e) the application of the minimum required amount of the revenues resulting from

state taxes, including revenues originating from transfers, to the maintenance

and development of education and to health actions and public services.

a

rticle 35.

t

he state shall not intervene in its municipalities, neither the u

nion in

the municipalities located in a federal territory, except when: (CA No. 29, 2000)

i

– the funded debt is not paid for two consecutive years, without reasons of

force majeure;

II – the due accounts are not rendered, in the manner prescribed by law;

iii

– the minimum required amount of the municipal revenues has not been

applied to the maintenance and development of education and to health actions and public services;

i

v

– the co

urt of Justice grants a petition to ensure observance of the principles

indicated in the state Constitution or to provide for the enforcement of the law, judicial order or decision.

a

rticle 36.

The

issuance of a decree of intervention shall depend: (CA No. 45,

2004)

i

– on a request from the coerced or impeded l

egislative or e

xecutive p

ower,

or on a requisition from the su

preme fe

deral co

urt, if the coercion is exercised against

the Judicial Power, in the case of article 34, IV;

II – in case of disobedience to a judicial order or decision, on a requisition from

the s

upreme f

ederal c

ourt, the s

uperior c

ourt of Justice or the s

uperior e

lectoral

Court;

miolo_constitution_versao_camara.indd 42 17/6/2010 15:01:01

The Organization of the State 43

iii – on the granting of a petition from the a ttorney-General of the r epublic

by the s

upreme f

ederal c

ourt, in the case of article 34, vii

, and in the case of refusal

to enforce a federal law;

IV – (Revoked).

pa

ragraph 1.

th

e decree of intervention, which shall specify the extent, the period

and the conditions of enforcement and which, if pertinent, shall appoint the intervenor,

shall be submitted to the n

ational c

ongress or the s

tate l

egislative a

ssembly for

consideration, within twenty-four hours.

p

aragraph 2.

i

f the n

ational c

ongress or the l

egislative a

ssembly are not in

session, a special session shall be called within the same twenty-four hours.

p

aragraph 3.

i

n the case of article 34, vi

and vii

, or article 35, iv,

when the

consideration by the n

ational c

ongress or the l

egislative a

ssembly may be waived,

the decree shall be limited to suspending the enforcement of the impugned act, if such measure suffices to restore normality.

pa

ragraph 4.

up

on cessation of the reasons that caused the intervention, the

authorities removed from their offices shall return to them, unless there is some legal impediment.

CH

a

P

te

R V

ii

p

ublic a

dministration

se

C

tion

i

General

p

rovisions

ar

ticle 37.

th

e governmental entities and entities owned by the Government in any

of the powers of the un

ion, the states, the fe

deral di

strict and the Municipalities shall

obey the principles of lawfulness, impersonality, morality, publicity, and efficiency, and also the following: (CA No. 19, 1998; CA No. 20, 1998; CA No. 41, 2003; CA No. 42, 2003; CA No. 47, 2005)

I – public offices, positions and functions are accessible to all Brazilians who

meet the requirements established by law, as well as to foreigners, under the terms of the law;

II – investiture in a public office or position depends on previously passing

an entrance examination consisting of tests or tests and presentation of academic and professional credentials, according to the nature and the complexity of the office or position, as provided by law, except for appointment to a commission office declared by law as being of free appointment and discharge;

iii

– the period of validity of a public entrance examination shall be up to two

years, extendable once for a like period of time;

i

v

– during the unextendable period established in the public call notice,

a person who has passed a public entrance examination of tests, or of tests and presentation of academic and professional credentials, shall be called with priority over newly approved applicants, to take an office or position in the career;

miolo_constitution_versao_camara.indd 43 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 44

v – positions of trust, exercised exclusively by public employees holding an

effective post, and commission offices, to be exercised by career employees in the

cases, under the conditions and within the minimum percentages established in law, are reserved exclusively for the duties of directors, chiefs of staf f, and assistants;

VI – the right to free union association is guaranteed to civil servants;

VII – the right to strike shall be exercised in the manner and within the limits

defined by a specific law;

VIII – the law shall reserve a percentage of public offices and positions for

handicapped persons and shall define the criteria for their admittance;

i

X – the law shall establish the cases of hiring for a limited period of time to

meet a temporary need of exceptional public interest;

X – the remuneration of Government employees and the compensation referred

to in paragraph 4 of article 39 may only be established or altered by means of a

specific law, with due regard for the exclusive capacity to introduce a law in each case, an annual general review being ensured, always on the same date and without distinction between the indices;

XI – the remuneration and the compensation of the holders of public offices,

functions, and positions in governmental entities, associate government agencies, and foundations; of the members of any of the Powers of the Union, of the States, the Federal District, and the Municipalities; of the holders of elective offices, and of any other political agent, as well as the pay, pension, or other type of remuneration, earned on a cumulative basis or not, including advantages of a personal nature or of any other nature, may not be higher than the monthly compensation, in legal tender, of the Justices of the Supreme Federal Court, and the following limits shall be applied: in Municipalities, the compensation of the Mayor; in the States and in the Federal

d

istrict, the monthly compensation of the Governor in the sphere of the e

xecutive

b

ranch, the compensation of s

tate and f

ederal d

istrict d

eputies in the sphere of the

l

egislative b

ranch, and the compensation of the Judges of the s

tate c

ourt of Justice,

limited to ninety and twenty-five hundredths percent of the monthly compensation, in legal tender, of the Justices of the

s

upreme f

ederal c

ourt in the sphere of the Judicial

Branch, this limit being applicable to the members of the Office of the Public Interest Attorney, to Prosecutors, and to Public Legal Defenders;

X

ii

– the salaries for positions of the l

egislative and Judicial p

owers may not

be higher than those paid by the Executive Power;

XIII – the linkage or equalization of any type of pay for purposes of the

remuneration of the personnel in the public services is forbidden;

X

iv

– the pecuniary raises received by a government employee shall not be

computed or accumulated for purposes of granting subsequent raises;

XV – the compensation and the salaries of holders of public offices and

positions may not be reduced, except for the provisions of items X

i

and X

iv

of this

article and of articles 39, paragraph 4, 150, II, 153, III, and 153, paragraph 2, I;

XVI – remunerated accumulation of public offices is forbidden, except, when

there is compatibility of working hours, and with due regard, in any instance, for the provision of item XI:

miolo_constitution_versao_camara.indd 44 17/6/2010 15:01:01

The Organization of the State 45

a) of two teaching positions;

b) of one teaching position with another technical or scientific position;

c) of two positions or jobs which are exclusive for health professionals, with

regulated professions;

X

vii

– the prohibition to accumulate extends to positions and functions and

includes associate government agencies, foundations, public enterprises, joint stock

companies, their subsidiary companies, and companies controlled either directly or indirectly by the Government;

XVIII – the financial administration and its revenue officers shall, within their

spheres of authority and jurisdiction, have the right to precedence over the other administrative sectors, as the law provides;

X

i

X – the creation of an associate Government agency and the establishment

of a public enterprise, a joint stock company, and a foundation may only take place by means of a specific law, and, in the latter case, a supplementary law shall specify the areas of operation;

XX – the creation of subsidiaries of the agencies mentioned in the preceding

item depends on legislative authorization, in each case, as well as the participation by any of them in a private company;

XXI – with the exception of the cases specified in law, public works, services,

purchases and disposals shall be contracted by public bidding proceedings that ensure equal conditions to all bidders, with clauses that establish payment obligations, maintaining the effective conditions of the bid, as the law provides, which shall only allow the requirements of technical and economic qualifications indispensable to guarantee the fulfilling of the obligations;

XX

i

i

– the tax administrations of the un

ion, of the st

ates, the fe

deral di

strict,

and the Municipalities, whose activities are essential for the operation of the st

ate

and are exercised by employees of specific careers, shall have priority funds for the implementation of their activities and shall work in an integrated manner, including the sharing of tax rolls and fiscal information, under the terms of the law or of a covenant.

Paragraph 1.

The

publicity of the acts, programmes, public works, services and

campaigns of Government agencies shall be of educational, informative or social orientation character, and shall not contain names, symbols or images that characterize personal propaganda of Government authorities or employees.

p

aragraph 2.

n

on-compliance with the provisions of items ii

and iii

shall result

in the nullity of the act and punishment of the responsible authority, as the law provides.

pa

ragraph 3.

th

e law shall regulate the forms of participation of users in governmental

entities and in entities owned by the Government, especially as regards:

i

– claims relating to the rendering of public services in general, the provision

of user services being ensured, as well as periodical assessment, both external and internal, of the quality of services;

ii

– the access of users to administrative records and to information about

Government initiatives, with due regard for article 5, items X and XXXIII;

miolo_constitution_versao_camara.indd 45 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 46

iii – the rules of a complaint against negligence or abuse in the exercise of an

office, position or function in government services.

p

aragraph 4.

a

cts of administrative dishonesty shall result in the suspension of

political rights, loss of public function, prohibition to transfer personal property and

reimbursement to the p

ublic treasury

, in the manner and grading established by law,

without prejudice to the applicable criminal action.

p

aragraph 5.

t

he law shall establish the limitations for illicit acts, performed by

any agent, whether or not a Government employee, which cause losses to the p

ublic

Treasury, without prejudice to the respective claims for reimbursement.

pa

ragraph 6.

pu

blic legal entities and private legal entities rendering public

services shall be liable for damages that any of their agents, acting as such, cause to third parties, ensuring the right of recourse against the liable agent in cases of malice or fault.

Paragraph 7.

The

law shall establish the requirements and restrictions regarding

the holder of an office or position, in governmental entities and entities owned by the government, which provides access to inside information.

Paragraph 8.

T

he managerial, budgetary and financial autonomy of governmental

agencies and entities, as well as of entities owned by the Government, may be extended by means of a contract, to be entered into by their administrators and the Government, with a view to the establishment of performance goals for the agency or entity, and the law shall provide for:

I – the term of the contract;

ii

– the controls and criteria for the appraisal of performance, rights, duties,

and liability of managing officers;

iii

– the remuneration of the employees.

Paragraph 9. T

he provision of item XI applies to the public enterprises and to joint

stock companies and their subsidiary companies which receive funds from the Union, the

s

tates, the f

ederal d

istrict, or the Municipalities for the payment of personnel

expenditures or of general expenses.

pa

ragraph 10.

re

ceiving retirement pensions arising from article 40 or from

articles 42 and 142, while at the same time receiving the remuneration of a public office, position or function is forbidden, with the exception of offices that may be accumulated under the terms of this Constitution, elective offices, and commission offices declared by law as being of free appointment and discharge.

p

aragraph 11.

t

he compensatory amounts set forth in law shall not be computed

for the purposes of the remuneration limits referred to in item X i

of the head paragraph

of this article.

p

aragraph 12.

f

or the purposes provided by item X

i

of the head paragraph of this

article, the s

tates and the f

ederal d

istrict may stipulate, within their own sphere, by

means of an amendment to their respective co

nstitutions and or

ganic la

w, as a single

limit, the monthly compensation of the Judges of the respective st

ate co

urt of Justice,

limited to ninety and twenty-five hundredths percent of the monthly compensation

miolo_constitution_versao_camara.indd 46 17/6/2010 15:01:01

The Organization of the State 47

of the Justices of the s upreme f ederal c ourt, and the provision of this paragraph

shall not be applied to the compensation of s

tate and f

ederal d

istrict d

eputies and

of

c

ity

c

ouncilmen.

a

rticle 38.

t

he following provisions are applicable to public employees holding

elective offices in a governmental entity, an associate government agency, and a

foundation: (CA No. 19, 1998)

I – in the case of a federal, state or district elective office, he shall leave his

office, position or function;

II – if vested with the office of Mayor, he shall take leave from his post, position

or function and he may opt for the corresponding remuneration;

III – if vested with the office of City Councilman, if there is compatibility of

working hours, he shall receive the benefits of his post, position or function, without prejudice to the remuneration of his elective office and in the case there is no such compatibility, the provisions of the preceding item shall be applied;

iv

– in any case requiring leave of absence for the exercise of an elective

office, his time of service shall be counted in full, for all legal effects, except for promotion by merit;

V – for purposes of social security benefits, in the case of leave of absence,

the amounts shall be established as if he were in activity.

se

C

tion

ii

Government

e

mployees (

ca

n

o. 18, 1998)

a

rticle 39.

t

he u

nion, the s

tates, the f

ederal d

istrict and the Municipalities shall

institute a board of administration policy and personnel remuneration policy, composed of public employees appointed by the respective

b

ranches. (

ca

n

o. 19, 1998)

pa

ragraph 1.

th

e stipulation of pay levels and of other components of the

remuneration system shall comply with:

i

– the nature, the level of responsibility, and the complexity of the posts of

each career;

II – the requirements for investiture;

III – the specific characteristics of each post.

pa

ragraph 2.

th

e un

ion, the st

ates, and the fe

deral di

strict shall establish

government schools for the education and further development of public employees,

and participation in such courses shall be one of the requirements for promotion in the career, the signing of agreements or contracts among federated units being therefore allowed.

Paragraph 3.

The

provisions of article 7, IV , VII, VIII, IX, XII, XIII, XV , XVI,

X

vii

, X

viii

, X

i

X, XX, XX

ii

, and XXX shall apply to employees holding public

offices, and the law may stipulate differentiated requirements for admission when the nature of the office so demands.

miolo_constitution_versao_camara.indd 47 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 48

Paragraph 4. A member of one of the Branches, the holder of an elective office, the

Ministers of st

ate, and the members of st

ate and lo

cal ca

binets shall be remunerated

exclusively by means of a compensation consisting of one sole item, the addition of

any extra benefit, additional pay, bonus, award, representation allowance, or other type of remuneration being forbidden, with due regard, in any of the cases, for the provisions of article 37, X and XI.

p

aragraph 5.

t

he legislation of the u

nion, the s

tates, the f

ederal d

istrict, and

the Municipalities may establish the proportion between the highest and the lowest remuneration of public employees, with due regard, in any of the cases, for the provision of article 37, XI.

p

aragraph 6.

t

he e

xecutive, l

egislative and Judicial b

ranches shall publish the

amounts of the compensation and of the remuneration of public offices and positions each year.

Paragraph 7.

The

legislation of the Union, the States, the Federal District, and

the Municipalities shall regulate the utilization of the budgetary funds deriving from savings in current expenditures in each agency, associate government agency and foundation, to be used in the development of programs of quality and productivity, training and development, modernization, re-equipping and rationalization of public services, including as additional pay or productivity award.

Paragraph 8.

The

remuneration of public employees organized in a career may

be established under the terms of paragraph 4.

a

rticle 40.

e

mployees holding effective posts in the u

nion, the s

tates, the f

ederal

di

strict, and the Municipalities, therein included their associate government agencies

and foundations, are ensured of a social security scheme on a contributory and solidary basis, with contributions from the respective public entity, from the current employees, retired personnel, and pensioners, with due regard for criteria that preserve financial and actuarial balance and for the provisions of this article. (CA No. 20, 1998; CA No. 41, 2003; CA No. 47, 2005)

p

aragraph 1.

t

he employees covered by the social security scheme set forth in

this article shall go into retirement, their pensions being calculated according to the amounts stipulated under the terms of paragraphs 3 and 17:

i

– for permanent disability, with a pension in proportion to the period of

contribution, except when such disability results from a work-related injury, a professional disease, or a serious, contagious, or incurable illness, under the terms of the law;

ii

– compulsorily, at seventy years of age, with a pension in proportion to the

period of contribution;

iii

– voluntarily, upon completing at least ten years of effective exercise in

public administration and five years in the effective post from which retirement is going to take place, with due regard for the following conditions:

a) sixty years of age and thirty-five of contribution, if a man, and fifty-five

years of age and thirty of contribution, if a woman;

b) sixty-five years of age, if a man, and sixty, if a woman, with pay in proportion

to the period of contribution.

miolo_constitution_versao_camara.indd 48 17/6/2010 15:01:01

The Organization of the State 49

pa ragraph 2. at the time they are granted, retirement pensions and other pensions

may not exceed the remuneration of the respective employee in the effective post from

which he retired or which was taken as a parameter for the granting of the pension.

p

aragraph 3.

t

he calculation of the retirement pension, at the time retirement is

granted, shall take into account the remunerations used as basis for the contributions of the employee to the social security schemes mentioned in this article and in article 201, under the terms of the law.

pa

ragraph 4.

th

e adoption of differentiated requirements and criteria for the granting

of retirement to those covered by the scheme set forth in this article is forbidden, with the exception of the cases, as defined by supplementary laws, of employees:

I – with disabilities;

II – engaged in hazardous activities;

i

ii

– engaged in activities carried out under special conditions which are

harmful to health or to physical wholeness.

p

aragraph 5.

t

he requirements concerning age and period of contribution will be

reduced by five years, as regards the provision of paragraph 1, item III, letter a, for

teachers who document exclusively a period of effective exercise of teaching functions

in children education and in elementary and secondary education.

Paragraph 6.

W

ith the exception of the cases of retirement from posts that can be

accumulated under the terms of this c

onstitution, receiving more than one retirement

pension charged to the social security scheme set forth in this article is forbidden.

Paragraph 7.

The

law shall provide for the granting of the benefit of a death

pension, which will be equal to:

i

– the total amount of the retirement pension of the deceased employee, up to

the maximum limit established for the benefits of the general social security scheme referred to in article 201, increased by seventy percent of the amount in excess of this limit, if the employee had already retired on the date of his death; or

ii

– the total amount of the remuneration of the employee in the effective post

he was holding on the date of his death, up to the maximum limit established for the benefits of the general social security scheme referred to in article 201, increased by seventy percent of the amount in excess of this limit, if the employee was in active service on the date of his death.

Paragraph 8.

Readjustment

of the benefits is ensured, to the end that their real

value is permanently maintained, in accordance with criteria established by law.

pa

ragraph 9.

th

e period of contribution in a federal, state, or municipal post shall

be computed for the purpose of retirement, and the corresponding period of service shall be computed for the purpose of placement on paid availability.

Paragraph 10.

The

law may not establish any method of computation of fictitious

periods of contribution.

Paragraph 11. T

he limit set forth in article 37, XI, applies to the total amount of the

retirement pension and other pensions, including those resulting from the accumulation of public posts or positions, as well as from other activities which must contribute to

miolo_constitution_versao_camara.indd 49 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 50

the general social security scheme, and to the amount resulting from the addition of

pensions and the remuneration of a post which may be accumulated under the terms of this Constitution, a commission office declared by law as being of free appointment and discharge, and an elective office.

pa

ragraph 12.

in

addition to the provisions of this article, the social security scheme

of government employees who hold effective posts shall comply, whenever appropriate, with the requirements and criteria stipulated for the general social security scheme.

p

aragraph 13.

t

he general social security scheme applies to employees who hold

exclusively commission offices declared by law as being of free appointment and discharge, as well as other temporary posts or public positions.

p

aragraph 14.

t

he u

nion, the s

tates, the f

ederal d

istrict, and the Municipalities,

provided that they establish a complementary social security scheme for their respective employees who hold effective posts, may stipulate, for the amount of retirement pensions and other pensions to be granted by the scheme referred to in this article, the maximum limit set forth for the benefits of the general social security scheme referred to in article 201.

pa

ragraph 15.

th

e complementary social security scheme referred to in paragraph

14 shall be instituted by an act of the respective e

xecutive p

ower, with due regard for

the provisions of article 202 and its paragraphs, insofar as pertinent, through closed private pension plan companies, of a public nature, which will offer to their respective participants benefit plans exclusively in the defined contribution mode.

p

aragraph 16.

t

he provisions of paragraphs 14 and 15 may be applied to an

employee who has entered public administration on or before the date of publication of the act which instituted the corresponding complementary social security scheme only if such employee has previously expressed such option.

Paragraph 17.

A

ll remuneration amounts taken into account in the calculation of the

benefit set forth in paragraph 3 shall be duly updated, under the terms of the law.

p

aragraph 18.

a

contribution shall be levied on retirement pensions and other

pensions granted by the scheme referred to in this article if such pensions exceed the maximum limit established for the benefits of the general social security scheme mentioned in article 201, at a percentage equal to the one established for employees holding effective posts.

Paragraph 19.

E

mployees referred to in this article who have fulfilled the

requirements for voluntary retirement stipulated in paragraph 1, i

ii,

a, and who

choose to remain working shall be entitled to a continuous activity bonus equivalent to the amount of their social security contribution until such date as they fulfill the requirements for compulsory retirement set forth in paragraph 1,

ii

.

p

aragraph 20.

t

he establishment of more than one special social security scheme

for employees holding effective posts, and of more than one unit to manage the respective scheme in each state is forbidden, except for the provision of article 142, paragraph 3, X.

p

aragraph 21.

t

he contribution set forth in paragraph 18 of this article shall be

levied only on the portions of retirement pensions and other pensions which exceed an amount equal to twice the maximum limit established for the benefits of the general

miolo_constitution_versao_camara.indd 50 17/6/2010 15:01:01

The Organization of the State 51

social security scheme mentioned in article 201 of this Constitution, if the beneficiaries,

under the terms of the law, suffer from incapacitating diseases.

ar

ticle 41.

se

rvants who, by virtue of public entrance examinations, are appointed to

effective posts, acquire tenure after three years of actual service. (

ca

n

o. 19, 1998)

Paragraph 1.

A

tenured public employee shall only lose his office:

I – by virtue of a final and unappealable judicial decision;

ii

– by means of an administrative proceeding, in which he is assured of ample

defense;

iii

– by means of a procedure of periodical appraisal of performance, under

the terms of a supplementary law, ample defense being assured.

Paragraph 2. I

f the dismissal of a tenured public employee is voided by a judicial

decision, he shall be reinstated, and the occupant of the vacancy, when tenured, shall be led back to his original office, with no right to indemnity, taken to another office or placed on paid availability with a remuneration proportional to his length of employment.

Paragraph 3.

If

the office is declared extinct or unnecessary, a tenured public

employee shall remain on availability, with a remuneration proportional to his length of employment, until he is adequately placed in another office.

pa

ragraph 4.

as

a requirement to acquire tenure, a special appraisal of performance

by a committee created for this purpose is mandatory.

se

C

tion

iii

t

he Military of the

s

tates, of the

f

ederal

d

istrict

and of the territories (

ca

n

o. 18, 1998)

a

rticle 42.

t

he members of the Military p

olice and of the Military f

ire b

rigades,

institutions whose organization is based on hierarchy and discipline, are military of the States, of the Federal District and of the Territories. (CA No. 18, 1998; CA No. 20, 1998; CA No. 41, 2003)

Paragraph 1.

T

he provisions of article 14, paragraph 8; article 40, paragraph

9; and of article 142, paragraphs 2 and 3, apply to the military of the States, of the

f

ederal d

istrict, and of the territories,

in addition to other provisions that the law

may establish, it being incumbent upon specific state legislation to provide for the matters of article 142, paragraph 3, item X, the ranks of the officers being awarded by the respective

s

tate Governors.

Paragraph 2. T

he provisions that may be established by a specific act of the

respective state shall apply to the pensioners of the military of the s

tates, of the

f

ederal

d

istrict, and of the territories.

se

C

tion

i

V

t

he

r

egions

a

rticle 43.

f

or administrative purposes, the u

nion may coordinate its action in

one same social and geoeconomic complex, seeking to attain its development and to reduce regional inequalities.

miolo_constitution_versao_camara.indd 51 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 52

Paragraph 1. A supplementary law shall provide for:

I – the conditions for the integration of developing regions;

i

i

– the composition of the regional agencies which shall carry out, as provided

by law, the regional plans included in the national social and economic development

plans approved concurrently.

pa

ragraph 2.

th

e regional incentives shall include, besides others, as

prescribed by law:

i

– equality of tariffs, freight rates, insurance and other cost and price items

which are within the responsibility of the Government;

II – favoured interest rates for the financing of priority activities;

iii

– exemptions, reductions or temporary deferment of federal taxes owed by

individuals or by legal entities;

i

v

– priority in the economic and social use of rivers and dammed or dammable

water masses in low-income regions subject to periodical droughts.

p

aragraph 3.

i

n the areas referred to in paragraph 2, iv,

the u

nion shall grant

incentives to the recovery of arid lands and shall cooperate with small and medium-size rural landowners in the implementing of water sources and small-scale irrigation in their tracts of land.

miolo_constitution_versao_camara.indd 52 17/6/2010 15:01:01

The Organization of the Powers 53

title iV

t

he

o

rganization of the Powers

CHaPteR i

t

he

l

egislative

p

ower

se

C

tion

i

t

he

n

ational

c

ongress

a

rticle 44.

t

he l

egislative p

ower is exercised by the n

ational c

ongress, which is

composed of the

c

hamber of

d

eputies and the

f

ederal

s

enate.

Sole paragraph.

e

ach legislative term shall have the duration of four years.

ar

ticle 45.

th

e ch

amber of de

puties is composed of representatives of the

people, elected, by the proportional system, in each state, territory and in the f

ederal

d

istrict.

p

aragraph 1.

t

he total number of d

eputies, as well as the representation of the

states and of the f

ederal d

istrict shall be established by a supplementary law, in

proportion to the population, and the necessary adjustments shall be made in the year

preceding the elections, so that none of those units of the f

ederation has less than

eight or more than seventy

d

eputies.

p

aragraph 2.

e

ach territory shall elect four

d

eputies.

a

rticle 46.

t

he f

ederal s

enate is composed of representatives of the states and of

the Federal District, elected by a majority vote.

p

aragraph 1.

e

ach state and the f

ederal d

istrict shall elect three s

enators for a

term of office of eight years.

p

aragraph 2.

o

ne-third and two-thirds of the representation of each state and of

the

f

ederal

d

istrict shall be renewed every four years, alternately.

p

aragraph 3.

e

ach

s

enator shall be elected with two substitutes.

a

rticle 47.

e

xcept where there is a constitutional provision to the contrary, the

decisions of each House and of their committees shall be taken by a majority vote, when the absolute majority of its members is present.

se

C

tion

ii

p

owers of the

n

ational

c

ongress

a

rticle 48.

t

he n

ational c

ongress shall have the power, with the sanction of the

President of the Republic, which shall not be required for the matters specified in articles 49, 51 and 52, to provide for all the matters within the competence of the Union and especially on: (CA No. 19, 1998; CA No. 32, 2001; CA No. 41, 2003)

miolo_constitution_versao_camara.indd 53 17/6/2010 15:01:01

Constitution of the Federative Republic of Brazil 54

I – system of taxation, collection of taxes and income distribution;

ii

– pluriannual plan, budgetary directives, annual budget, credit transactions,

public debt and issuance of currency;

III – establishment and modification of Armed Forces troops;

IV – national, regional and sectorial plans and programmes of development;

v

– boundaries of the national territory, air and maritime space and property

of the Union;

vi

– incorporation, subdivision or dismemberment of areas of territories or

states, after consulting with the respective Legislative Assembly;

VII – temporary transference of the seat of the Federal Government;VIII – granting of amnesty;IX – administrative and judicial organization of the Public Prosecution and the

Public Legal Defense of the Union and of the territories, and judicial organization of

the Public Prosecution and the Public Legal Defense of the Federal District;

X – creation, change, and abolishment of public offices, positions and functions,

with due regard for article 84,

vi

, b;

XI – creation and abolishment of Ministries and Government bodies;

XII – telecommunications and radio broadcasting;XIII – financial, foreign exchange and monetary matters, financial institutions

and their operations;

XIV – currency, currency issuance limits, and amount of federal indebtedness;X

v

– stipulation of the compensation for the Justices of the s

upreme f

ederal

Court, with due regard for articles 39, paragraph 4; 150, II; 153, III; and 153, paragraph

2,

i

.

a

rticle 49.

It

is exclusively the competence of the National Congress: (CA No.

19, 1998)

i

– to decide conclusively on international treaties, agreements or acts which

result in charges or commitments that go against the national property;

II – to authorize the President of the Republic to declare war, to make peace

and to permit foreign forces to pass through the national territory or remain therein temporarily, with the exception of the cases provided by a supplementary law;

III – to authorize the President and the Vice-President of the Republic to leave

the country, when such absence exceeds fifteen days;

IV – to approve a state of defense and federal intervention, authorize a state

of siege or suspend any of these measures;

v

– to stop the normative acts of the e

xecutive p

ower which exceed their

regimental authority or the limits of legislative delegation;

VI – to transfer its seat temporarily;

miolo_constitution_versao_camara.indd 54 17/6/2010 15:01:01

The Organization of the Powers 55

vii – to establish identical compensation for f ederal d eputies and s enators,

taking into account the provisions of articles 37, XI, 39, paragraph 4, 150, II, 153,

III, and 153, paragraph 2, I;

viii

– to establish the compensation of the p

resident and the vice-

p

resident

of the Republic and of the Ministers of State, taking into account the provisions of articles 37, XI, 39, paragraph 4, 150, II, 153, III, and 153, paragraph 2, I;

iX

– to examine each year the accounts rendered by the pr

esident of the

Republic and to consider the reports on the execution of Government plans;

X – to supervise and control directly or through either of its h

ouses, the acts

of the Executive Power, including those of the indirect administration;

X

i

– to ensure the preservation of legislative competence in the face of the

normative incumbency of the other Powers;

X

ii

– to consider the acts of concession and renewal of concession of radio

and television stations;

XIII – to choose two-thirds of the members of the Federal Audit Court;

Xi

v

– to approve initiatives of the ex

ecutive po

wer referring to nuclear

activities;

XV – to authorize a referendum and to call a plebiscite;XVI – to authorize, in Indian lands, the exploitation and use of hydric resources

and the prospecting and mining of mineral resources;

X

vii

– to give prior approval to the disposal or concession of public lands

with an area of over two thousand and five hundred hectares.

ar

ticle 50. th

e ch

amber of de

puties and the fe

deral se

nate, or any of their

committees, may summon a Minister of State or any chief officers of agencies directly

subordinate to the p

residency of the r

epublic to personally render information on a

previoulsy determined matter, and this absence without adequate justification shall constitute a crime of malversation: (RCA No. 2, 1994)

p

aragraph 1.

t

he Ministers of s

tate may attend the f

ederal s

enate, the c

hamber

of d

eputies or any of their committees, on their own initiative and by agreement with

the respective

d

irecting

b

oard, to report on a matter of relevance to their Ministry.

pa

ragraph 2.

th

e di

recting bo

ards of the ch

amber of de

puties and of the fe

deral

s

enate may forward to the Ministers of s

tate, or any of the persons mentioned in the

head paragraph of this article, written requests for information, and refusal or non-compliance, within a period of thirty days, as well as the rendering of false information, shall constitute a crime of malversation.

se

C

tion

iii

t

he

c

hamber of

d

eputies

a

rticle 51.

It

is exclusively the competence of the Chamber of Deputies: (CA No.

19, 1998)

miolo_constitution_versao_camara.indd 55 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 56

I – to authorize, by two-thirds of its members, legal proceeding to be initiated

against the President and the Vice-President of the Republic and the Ministers of State;

II – to effect the taking of accounts of the President of the Republic, when

they are not presented to the n

ational c

ongress within sixty days of the opening of

the legislative session;

III – to draw up its internal regulations;

IV – to provide for its organization, functioning, police, creation, change or

abolishment of offices, positions and functions of its services, and the introduction

of a law for the establishment of their respective remuneration, taking into account the guidelines set forth in the law of budgetary directives;

v

– to elect the members of the co

uncil of the re

public, in the manner

prescribed by article 89, vii

.

se

C

tion

i

V

t

he

f

ederal

s

enate

a

rticle 52.

It

is exclusively the competence of the Federal Senate: (CA No. 19,

1998; CA No. 23, 1999; CA No. 42, 2003; CA No. 45, 2004)

i

– to effect the legal proceeding and trial of the pr

esident and vi

ce-pr

esident of

the re

public for crime of malversation, and the Ministers of st

ate and the co

mmanders of

the Navy, the Army, and the Air Force for crimes of the same nature relating to those;

ii

– to effect the legal proceeding and trial of the Justices of the s

upreme

f

ederal c

ourt, the members of the n

ational c

ouncil of Justice and of the n

ational

c

ouncil of the p

ublic p

rosecution, the a

ttorney-General of the r

epublic, and the

Advocate-General of the Union for crimes of malversation;

i

ii

– to give prior consent, by secret voting, after public hearing, on the

selection of:

a) judges, in the cases established in this Constitution;

b) Justices of the fe

deral au

dit co

urt appointed by the pr

esident of the

Republic;

c) Governor of a territory;d) president and directors of the Central Bank;e) Attorney-General of the Republic;f) holders of other offices, as the law may determine;

iv

– to give prior approval, by secret voting, after closed hearing, on the

selection of heads of permanent diplomatic missions;

V – to authorize foreign transactions of a financial nature, of the interest of the

Union, the states, the Federal District, the territories and the municipalities;

vi

– to establish, as proposed by the p

resident of the r

epublic, total limits

for the entire amount of the consolidated debt of the u

nion, the states, the f

ederal

District and the municipalities;

miolo_constitution_versao_camara.indd 56 17/6/2010 15:01:02

The Organization of the Powers 57

vii – to provide for the total limits and conditions for foreign and domestic

c

redit transactions of the un

ion, the states, the fe

deral di

strict and the municipalities,

of their autonomous Government entities and other entities controlled by the f

ederal

Government;

viii

– to provide for limits and conditions for the concession of a guarantee

by the Union in foreign and domestic credit transactions;

i

X – to establish total limits and conditions for the entire amount of the debt

of the states, the Federal District and the municipalities;

X – to stop the application, in full or in part, of a law declared unconstitutional

by final decision of the Supreme Federal Court;

XI – to approve, by absolute majority and by secret voting, the removal from

office of the Attorney-General of the Republic before the end of his term of office;

XII – to draw up its internal regulations;

XIII – to provide for its organization, functioning, police, creation, change or

abolishment of offices, positions and functions of its services, and the introduction

of a law for the establishment of their respective remuneration, taking into account the guidelines set forth in the law of budgetary directives;

X

iv

– to elect the members of the c

ouncil of the r

epublic, as established in

article 89, vii

.

Xv

– to carry out a regular assessment of the functionality of the na

tional

ta

x

sy

stem, as regards its structure and components, as well as the performance of the tax

administrations of the un

ion, of the st

ates, the fe

deral di

strict, and the Municipalities.

Sole paragraph.

i

n the cases provided for in items i

and ii

, the c

hief Justice of

the s

upreme f

ederal c

ourt shall act as p

resident and the sentence, which may only

be issued by two-thirds of the votes of the f

ederal s

enate, shall be limited to the loss

of office with disqualification to hold any public office for a period of eight years, without prejudice to other applicable judicial sanctions.

se

C

tion

V

d

eputies and

s

enators

a

rticle 53.

Deputies

and Senators enjoy civil and criminal inviolability on account

of any of their opinions, words and votes. (

ca

n

o. 35, 2001)

Paragraph 1.

Deputies

and Senators, from the date of issuance of the certificate

of election victory, shall be tried by the

s

upreme

f

ederal

c

ourt.

Paragraph 2.

From

the date of issuance of the certificate of election victory, the

members of the n

ational c

ongress may not be arrested, except in flagrante delicto of

a non-bailable offense. i

n such case, the case records shall be sent within twenty-four

hours to the respective House, which, by the vote of the majority of its members, shall decide on the arrest.

p

aragraph 3.

u

pon receiving an accusation against a s

enator or d

eputy, for an

offense committed after the issuance of the certificate of election victory, the Supreme

miolo_constitution_versao_camara.indd 57 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 58

federal c ourt shall inform the respective h ouse, which, by the initiative of a political

party therein represented and by the vote of the majority of those House members,

may, until such time as a final decision is issued, stay consideration of the action.

pa

ragraph 4.

th

e request for stay shall be examined by the respective ho

use within

the unextendable period of forty-five days as from its receipt by the Directing Board.

pa

ragraph 5.

th

e stay of proceedings shall suspend the limitation for the duration

of the term of office.

p

aragraph 6.

d

eputies and s

enators shall not be compelled to render testimony

on information received or given by virtue of the exercise of their mandate, nor on persons who rendered them information or received information from them.

Paragraph 7.

I

ncorporation into the Armed Forces of Deputies and Senators, even

if they hold military rank and even in time of war shall depend upon the prior granting of permission by the respective

h

ouse.

pa

ragraph 8.

th

e immunities of de

puties and se

nators shall be maintained during

a state of siege and may only be suspended by the vote of two-thirds of the members of the respective

h

ouse, in the case of acts committed outside the premises of c

ongress,

which are not compatible with the implementation of such measure.

a

rticle 54. Deputies and Senators may not:

I – after the issuance of their certificate of electoral victory:

a

) sign or maintain a contract with a public legal entity, autonomous Government

agency, public company, mixed-capital company or public utility company,

unless the contract is in accordance with uniform clauses;

b) accept or hold a paid office, function or position including those from

which they may be dismissed ad nutum in the entities mentioned in the

preceding subitem;

II – after taking office:

a) be the owners, controllers or directors of a company which enjoys benefits

arising from a contract with a public legal entity or perform a remunerated

position therein;

b) hold an office or function from which they may be dismissed ad nutum, in

the entities mentioned in item

i

, a;

c) act as lawyer in a cause in which any of the entities referred to in item i

,

a, has an interest;

d) be the holders of more than one public elective position or office.

a

rticle 55. A

Deputy or Senator shall lose his office: (RCA No. 6, 1994)

I – if he violates any of the prohibitions established in the preceding article;

II – if his conduct is declared incompatible with parliamentary decorum;

iii

– if he fails to appear, in each legislative session, at one-third of the regular

sessions of the h

ouse to which he belongs, except for a leave of absence or a mission

authorized by the House concerned;

miolo_constitution_versao_camara.indd 58 17/6/2010 15:01:02

The Organization of the Powers 59

IV – if his political rights have been lost or suspended;

v

– whenever decreed by the e

lectoral c

ourts, in the cases established in this

Constitution;

VI – if he is criminally convicted by a final and unappealable sentence.

p

aragraph 1.

a

buse of the prerogatives ensured to a c

ongressman or the gaining

of undue advantages, in addition to the cases defined in the internal regulations, is

incompatible with parliamentary decorum.

Paragraph 2.

In

the cases of items I, II and VI, loss of office shall be declared by

the Chamber of Deputies or the Federal Senate, by secret voting and absolute majority, on the initiative of the respective

d

irecting b

oard or of a political party represented

in the

n

ational

c

ongress, full defense being ensured.

p

aragraph 3.

i

n the cases set forth in items iii

to v,

the loss shall be declared

by the d

irecting b

oard of the respective h

ouse, ex officio or upon the initiative of

any of its members, or of a political party represented in the n

ational c

ongress, full

defense being ensured.

pa

ragraph 4.

th

e resignation of a co

ngressman submitted to a legal suit that aims

at or may lead to loss of mandate, under the provisions of this article, will have its effects suspended until the final deliberations mentioned in paragraphs 2 and 3.

a

rticle 56. A

Deputy or Senator shall not lose his office:

I – if vested with the office of Minister of State, Governor of a territory,

s

ecretary of a state, of the f

ederal d

istrict, of a territory, of a state capital or head of

a temporary diplomatic mission;

ii

– if on leave of absence from the respective h

ouse, by virtue of illness or,

without remuneration, to attend to private matters, provided that, in this case, the absence does not exceed one hundred and twenty days per legislative session.

p

aragraph 1.

t

he substitute shall be called in cases of vacancy, of investiture in

the functions set forth in this article or of leave of absence exceeding one hundred and twenty days.

p

aragraph 2.

u

pon the occurrence of a vacancy and there being no substitute,

if more than fifteen months remain before the end of the term of office, an election shall be held to fill it.

pa

ragraph 3.

in

the event of item i,

the de

puty or se

nator may opt for the

remuneration of the elective office.

se

C

tion

V

i

t

he

s

essions

a

rticle 57.

t

he n

ational c

ongress shall meet each year in the f

ederal c

apital,

from February 2 to July 17 and from August 1 to December 22. (CA No. 32, 2001;

ca

n

o. 50, 2006)

p

aragraph 1.

i

f sessions scheduled for these dates fall on a s

aturday, a s

unday or

a holiday, they shall be transferred to the subsequent workday.

miolo_constitution_versao_camara.indd 59 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 60

paragraph 2. the legislative session shall not be interrupted before the approval

of the bill of budgetary directives.

pa

ragraph 3.

in

addition to other cases provided for in this co

nstitution, the

Chamber of Deputies and the Federal Senate shall meet in a joint session to:

I – inaugurate the legislative session;

ii

– draw up the common regulations and regulate the creation of services

common to both Houses;

III – take the oath of the President and of the Vice-President of the Republic;

IV – acknowledge a veto and resolve thereon.

pa

ragraph 4.

bo

th ho

uses shall meet in a preparatory session, beginning fe

bruary

1 of the first year of the legislative term, for the installation of its members and

the election of the respective Directing Boards, for a term of office of two years, the re-election to the same office in the immediately subsequent election being prohibited.

p

aragraph 5.

t

he d

irecting b

oard of the n

ational c

ongress shall be presided by

the President of the Federal Senate and the remaining offices shall be held, alternately, by the holders of equivalent offices in the Chamber of Deputies and in the Federal

s

enate.

Paragraph 6.

Special sessions of the National Congress shall be called:

i

– by the p

resident of the f

ederal s

enate, in the event of a decree of a state

of defense or of federal intervention, of a demand for the authorization to decree a state of siege and the taking of oath and inauguration of the President and the Vice-President of the Republic;

ii

– by the p

resident of the r

epublic, by the p

residents of the c

hamber of

Deputies and of the Federal Senate, or by request of the majority of the members of both

h

ouses, in the event of urgency or important public interest, approval by the

absolute majority of each House of the National Congress being required in all cases referred to in this item.

Paragraph 7.

I

n a special legislative session, the National Congress shall deliberate

only upon the matter for which it was called, exception being made for the event mentioned in paragraph 8 of this article, the payment of a compensatory amount by virtue of the special session being forbidden.

p

aragraph 8.

i

f there are provisional measures in effect on the date a special

session of the n

ational c

ongress is called, they shall be automatically included in

the agenda of the session.

se

C

tion

V

ii

t

he

c

ommittees

a

rticle 58.

t

he n

ational c

ongress and both its h

ouses shall have permanent and

temporary committees, established in the manner and with the incumbencies set forth in the respective regulations or in the act from which their creation resulted.

miolo_constitution_versao_camara.indd 60 17/6/2010 15:01:02

The Organization of the Powers 61

paragraph 1. in the composition of the d irecting b oards and of each committee,

the proportional representation of the parties or the parliamentary groups which

participate in the respective

h

ouse shall be ensured to the extent possible.

p

aragraph 2.

t

he committees have the power, on account of the matter under

their authority:

i

– to debate and vote on bills of law which, in accordance with the regulations,

are exempt from being submitted to the p

lenary a

ssembly, except in the event of an

appeal from one-tenth of the members of the respective House;

II – to hold public audiences with entities of civil society;

iii

– to summon Ministers of

s

tate to render information on matters inherent

to their duties;

iv

– to receive petitions, claims, statements or complaints from any person

against acts or omissions of Government authorities or entities;

V – to request the testimony of any authority or citizen;

VI – to examine construction work programs and national, regional and

sectorial development plans and to report thereupon.

paragr

aph 3.

parliamentar

y inquiry committees, which shall have the powers

of investigation inherent to the judicial authorities, in addition to other powers set

forth in the regulations of the respective h

ouses, shall be created by the c

hamber of

Deputies and by the Federal Senate, jointly or separately, upon the request of one-third of its members, to investigate a given fact and for a certain period of time, and their conclusions shall, if the case may be, be forwarded to the

p

ublic p

rosecution to

determine the civil or criminal liability of the offenders.

p

aragraph 4.

d

uring recess there shall be a committee to represent the n

ational

c

ongress, elected by both its h

ouses in the last regular session of the legislative

session, with incumbencies defined in the common regulations, the composition of which shall repeat, to the extent possible, the proportional representation of the political parties.

se

C

tion

V

iii

t

he

l

egislative

p

rocess

subse

C

tion

i

General

p

rovision

a

rticle 59. The legislative process comprises the preparation of:

I – amendments to the Constitution;

II – supplementary laws;III – ordinary laws;IV

– delegated laws;

V – provisional measures;

miolo_constitution_versao_camara.indd 61 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 62

VI – legislative decrees;

vii

– resolutions.

Sole paragraph.

a

supplementary law shall provide for the preparation, drafting,

amendment and consolidation of laws.

subse

C

tion

ii

a

mendments to the

c

onstitution

a

rticle 60. The Constitution may be amended on the proposal of:

i

– at least one-third of the members of the c

hamber of d

eputies or of the

Federal Senate;

II – the President of the Republic;

iii

– more than one half of the l

egislative a

ssemblies of the units of the

Federation, each of them expressing itself by the relative majority of its members.

p

aragraph 1.

t

he c

onstitution shall not be amended while federal intervention,

a state of defense or a state of siege is in force.

pa

ragraph 2.

th

e proposal shall be discussed and voted upon in each ho

use of the

n

ational c

ongress, in two readings, and it shall be considered approved if it obtains

in both readings, three-fifths of the votes of the respective members.

pa

ragraph 3.

an

amendment to the co

nstitution shall be promulgated by the

di

recting bo

ards of the ch

amber of de

puties and the fe

deral se

nate with its respective

sequence number.

p

aragraph 4.

n

o proposal of amendment shall be considered which is aimed at

abolishing:

I – the federative form of State;

II – the direct, secret, universal and periodic vote;III – the separation of the Government Powers;

iv – individual rights and guarantees.

Paragraph

5.

The

matter dealt with in a proposal of amendment that is rejected

or considered impaired shall not be the subject of another proposal in the same

legislative session.

subse

C

tion

iii

t

he

l

aws

ar

ticle 61.

th

e initiative of supplementary and ordinary laws is within the

competence of any member or committee of the ch

amber of de

puties and the fe

deral

s

enate or the n

ational c

ongress, the p

resident of the r

epublic, the s

upreme f

ederal

Court, the Superior Courts, the Attorney-General of the Republic and the citizens, in the manner and in the cases provided for in this Constitution. (CA No. 18, 1998;

ca

n

o. 32, 2001)

miolo_constitution_versao_camara.indd 62 17/6/2010 15:01:02

The Organization of the Powers 63

pa ragraph 1. it is the exclusive initiative of the pr esident of the re public to

introduce laws that:

I – determine or modify the number of Armed Forces troops;

II – provide for:a) creation of public offices, functions or positions in the direct administration

and in autonomous Government agencies or increases in their salaries;

b) administrative and judicial organization, tax and budgetary matters, public

services and administrative personnel of the territories;

c) government employees of the

u

nion and territories,

their legal statute,

appointment to offices, tenure and retirement;

d) organization of the Public Prosecution and of the Public Legal Defense

of the Union, as well as general rules for the organization of the Public

p

rosecution and the p

ublic l

egal d

efense of the states, the f

ederal d

istrict

and the territories;

e) creation and abolishment of Ministries and Government bodies, with due

regard for the provision of article 84, VI;

f) military of the Armed Forces, their legal statute, appointment to offices,

promotions, tenure, remuneration, retirement, and transfer to the reserve.

pa

ragraph 2.

th

e initiative of the people may be exercised by means of the

presentation to the c

hamber of d

eputies of a bill of law subscribed by at least one

percent of the national electorate, distributed throughout at least five states, with not

less than three-tenths of one percent of the voters in each of them.

a

rticle 62.

i

n important and urgent cases, the p

resident of the r

epublic may adopt

provisional measures with the force of law and shall submit them to the n

ational

c

ongress immediately. (

ca

n

o. 32, 2001)

p

aragraph 1.

t

he issuance of provisional measures is forbidden when the matter

involved:

I – deals with:

a) nationality, citizenship, political rights, political parties, and election law;b) criminal law, criminal procedural law, and civil procedural law;c) organization of the Judicial Branch and of the Public Prosecution, the career

and guarantees of their members;

d) pluriannual plans, budgetary directives, budgets, and additional and

supplementary credits, with the exception of the provision mentioned in

article 167, paragraph 3;

II – aims at the detention or seizure of goods, people’s savings, or any other

financial asset;

III – is reserved for a supplementary law;

i

v

– has already been regulated by a bill of law passed by the na

tional co

ngress

which is awaiting sanction or veto by the

p

resident of the

r

epublic.

miolo_constitution_versao_camara.indd 63 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 64

pa ragraph 2. a provisional measure to institute or increase taxes, with the

exception of the taxes mentioned in articles 153, i

, ii

, iv, v,

and 154, ii

, shall only

produce effects in the subsequent financial year if it has been converted into law before

or on the last day of the financial year in which it was issued.

Paragraph 3. W

ith the exception of the provisions mentioned in paragraphs 11 and

12, provisional measures shall lose effectiveness from the day of their issuance if they are not converted into law within a period of sixty days, which may be extended once for an identical period of time under the terms of paragraph 7, and the National Congress shall issue a legislative decree to regulate the legal relations arising therefrom.

p

aragraph 4.

t

he period mentioned in paragraph 3 shall be counted from the date

of publication of the provisional measure and shall be interrupted while the n

ational

c

ongress is in recess.

pa

ragraph 5.

de

liberation by each ho

use of the na

tional co

ngress upon the merits

of provisional measures shall depend on prior determination of their compliance with the constitutional requirements.

Paragraph 6.

If

a provisional measure is not examined within forty-five days as

of its date of publication, it shall subsequently be forwarded to urgent consideration in each

h

ouse of the n

ational c

ongress, and the deliberation of all other legislative

matters shall be suspended in the h

ouse where it is under consideration, until such

time as voting is concluded.

Paragraph 7. I

f the voting of a provisional measure is not concluded in both Houses

of the n

ational c

ongress within the period of sixty days as of its date of publication,

its period of effectiveness may be extended once for an identical period of time.

pa

ragraph 8.

th

e voting of provisional measures shall start in the ho

use of

d

eputies.

Paragraph 9. I

t is incumbent upon the joint committee of Deputies and Senators to

examine provisional measures and issue an opinion thereon, before they are submitted to floor action in each House of the National Congress in a separate session.

pa

ragraph 10.

it

is forbidden to reissue a provisional measure in the same legislative

session in which it was rejected or lost its effectiveness due to lapse of time.

p

aragraph 11.

i

f the legislative decree mentioned in paragraph 3 is not issued

within sixty days as of the date the provisional measure was rejected or lost its effectiveness, the legal relations constituted and arising from acts performed during its period of effectiveness shall still be regulated by such provisional measure.

p

aragraph 12.

s

hould a bill of law be passed that alters the original text of a

provisional measure, the latter will remain effective in full until such date as the bill is sanctioned or vetoed.

a

rticle 63.

An increase in expenditure proposals shall not be admitted:

i

– in bills of the exclusive initiative of the p

resident of the r

epublic, except

for the provisions of article 166, paragraphs 3 and 4;

II – in bills concerning the organization of the administrative services of the

ch

amber of de

puties, the fe

deral se

nate, the fe

deral co

urts and the pu

blic pr

osecution.

miolo_constitution_versao_camara.indd 64 17/6/2010 15:01:02

The Organization of the Powers 65

the p

resident of the r

epublic, the s

upreme f

ederal c

ourt and of the s

uperior c

ourts

shall start in the

c

hamber of

d

eputies. (

ca

n

o. 32, 2001)

pa

ragraph 1.

th

e pr

esident of the re

public may request urgency in the examination

of bills of his own initiative.

p

aragraph 2.

i

f, in the event of paragraph 1, the c

hamber of d

eputies and the

fe

deral se

nate fail to act, each one, successively, on the proposition, within the period

of forty-five days, deliberation on all other legislative matters shall be suspended

in the respective h

ouse, save those which must be considered within a stipulated

constitutional period, in order that the voting may be concluded.

pa

ragraph 3.

am

endments of the fe

deral se

nate shall be examined by the ch

amber

of d

eputies within a period of ten days, in accordance, otherwise, with the provisions

of the preceding paragraph.

p

aragraph 4.

t

he periods of time referred to in paragraph 2 shall not be counted

while the

c

ongress is in recess and shall not apply to the bills of codes.

a

rticle 65.

a

bill of law approved by one

h

ouse shall be reviewed by the other in

a single reading of discussing and voting and sent for sanctioning or promulgation, if approved by the reviewing House, or it shall be dismissed, if rejected.

Sole paragraph.

i

f the bill is amended, it shall return to the h

ouse where it was

proposed.

a

rticle 66.

t

he h

ouse in which voting is concluded shall send the bill of law to the

p

resident of the

r

epublic, who, if he concurs, shall sanction it. (

ca

n

o. 32, 2001)

p

aragraph 1.

i

f the p

resident of the r

epublic considers the bill of law, wholly or

in part, unconstitutional or contrary to public interest, he shall veto it, wholly or in part, within fifteen work days, counted from the date of receipt and he shall, within forty-eight hours, inform the

p

resident of the

s

enate of the reasons of his veto.

pa

ragraph 2.

a

partial veto shall only comprise the full text of an article, paragraph,

item or subitem.

Paragraph 3.

After

a period of fifteen days, the silence of the President of the

r

epublic shall be considered as sanctioning.

Paragraph 4.

The

veto shall be examined in a joint session, within thirty days,

counted from the date of receipt, and may only be rejected by the absolute majority of the

d

eputies and

s

enators, by secret voting.

p

aragraph 5.

i

f the veto is not upheld, the bill shall be sent to the p

resident of the

r

epublic for promulgation.

pa

ragraph 6.

if

the period of time established in paragraph 4 elapses without a

decision being reached, the veto shall be included in the order of the day of the subsequent session, and all other propositions shall be suspended until its final voting.

Paragraph 7.

If,

in the cases of paragraphs 3 and 5, the law is not promulgated

within forty-eight hours by the p

resident of the r

epublic, the p

resident of the s

enate

miolo_constitution_versao_camara.indd 65 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 66

shall enact it and if the latter fails to do so within the same period, the vice- p resident

of the

s

enate shall do so.

a

rticle 67.

The

matter dealt with in a rejected bill of law may only be the subject of

a new bill during the same legislative session, upon proposal of the absolute majority

of the members of either

h

ouse of the

n

ational

c

ongress.

a

rticle 68.

d

elegated laws shall be drawn up by the p

resident of the r

epublic, who

shall request delegation from the

n

ational

c

ongress.

p

aragraph 1.

t

here shall be no delegation of acts falling within the exclusive

competence of the n

ational c

ongress, of those within the exclusive competence of

the ch

amber of de

puties or the fe

deral se

nate, of matters reserved for supplementary

laws and of legislation on:

I – the organization of the Judicial Power and of the Public Prosecution, the

career and guarantees of their members;

II – nationality, citizenship, individual, political and electoral rights;

iii

– pluriannual plans, budgetary directives and budgets.

Paragraph 2.

The

delegation to the President of the Republic shall take the form

of a resolution of the n

ational c

ongress, which shall specify its contents and the

terms of its exercise.

p

aragraph 3.

i

f the resolution calls for consideration of the bill by the n

ational

c

ongress, the latter shall do so in a single voting, any amendment being forbidden.

a

rticle 69. Supplementary laws shall be approved by absolute majority

.

se

C

tion

i

X

a

ccounting,

f

inancial and

b

udgetary

c

ontrol

a

rticle 70.

Control

of accounts, finances, budget, operations and property of the

u

nion and of the agencies of the direct and indirect administration, as to lawfulness,

legitimacy, economic efficiency, application of subsidies and waiver of revenues, shall be exercised by the

n

ational c

ongress, by means of external control and of the

internal control system of each

p

ower. (

ca

n

o. 19, 1998)

Sole paragraph.

a

ccounts shall be rendered by any individual or corporation,

public or private, which uses, collects, keeps, manages, or administers public monies, assets or values, or those for which the

u

nion is responsible or which, on behalf of

the

u

nion, assumes obligations of a pecuniary nature.

ar

ticle 71.

ex

ternal control, incumbent on the na

tional co

ngress, shall be exercised

with the aid of the Federal Audit Court, which shall:

i

– examine the accounts rendered annually by the pr

esident of the re

public, by

means of a prior opinion which shall be prepared in sixty days counted from receipt;

ii

– evaluate the accounts of the administrators and other persons responsible

for public monies, assets and values of the direct and indirect administration, including

miolo_constitution_versao_camara.indd 66 17/6/2010 15:01:02

The Organization of the Powers 67

foundations and companies instituted and maintained by the f ederal Government as

well as the accounts of those who have caused a loss, misplacement or other irregularity

resulting in losses to the public treasury;

i

ii

– examine, for the purpose of registration, the lawfulness of acts of admission

of personnel, on any account, in the direct and indirect administration, including the foundations instituted and maintained by the

fe

deral Government, with the exception

of the appointments to commission offices, as well as the granting of civil and military retirement and pensions, except for subsequent improvements which do not alter the legal fundaments of the conceding act;

iv

– carry out, on its own initiative or on that of the c

hamber of d

eputies, of

the f

ederal s

enate, or of a technical or inquiry committee, inspection and audits of an

accounting, financial, budgetary, operational or property nature in the administrative units of the

l

egislative, e

xecutive and Judicial p

owers and other entities referred to

in item II;

v

– control the national accounts of supranational companies in whose

capital stock the Union holds a direct or indirect interest, as set forth in the acts of incorporation;

vi

– control the use of any funds transferred by the u

nion, by means of an

agreement, arrangement, adjustment or any other similar instrument, to a state, the Federal District or a municipality;

v

ii

– render the information requested by the na

tional co

ngress, by either of

its Houses or by any of the respective committees concerning accounting, financial, budgetary, operational and property control and the results of audits and inspections made;

v

iii

– in case of illegal expenses or irregular accounts, apply to the responsible

parties the sanctions provided by law, which shall establish, among other comminations, a fine proportional to the damages caused to the public treasury;

IX – determine a period of time for the agency or entity to take the necessary

steps for the strict compliance with the law, if an illegality is established;

X – if not heeded, stop the execution of the impugned act, notifying the

Chamber of Deputies and the Federal Senate of such decision;

X

i

– present a formal charge to the competent p

ower on any irregularities or

abuses verified.

p

aragraph 1.

i

n the case of a contract, the restraining act shall be adopted directly

by the n

ational c

ongress, which shall immediately request the e

xecutive p

ower to

take the applicable measures.

par

agraph 2.

if

the natio

nal co

ngress or the e

xecutive po

wer, within ninety

days, do not take the measures provided for in the preceding paragraph, the Court shall decide on the matter.

Paragraph 3.

Decisions

of the Court resulting in the imposition of a debt or fine

shall have the effectiveness of an execution instrument.

p

aragraph 4.

t

he c

ourt shall, quarterly and annually, forward to the n

ational

c

ongress a report on its activities.

miolo_constitution_versao_camara.indd 67 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 68

ar ticle 72. I n view of indications of unauthorized expenditure, even if in the

form of non-programmed investments or non-approved subsidies, the permanent

joint Committee referred to in article 166, paragraph 1, may request the responsible Government authority to render the necessary explanation, within five days.

Paragraph 1.

If

the explanations are not rendered or are considered insufficient,

the Committee shall request the Court to make a conclusive statement on the matter within thirty days.

p

aragraph 2.

i

f the c

ourt deems the expense to be irregular, the c

ommittee shall,

if it considers that the expenditure may cause irreparable damage or serious injury to the public economy, propose to the

n

ational

c

ongress that it be suspended.

a

rticle 73.

t

he f

ederal a

udit c

ourt, formed by nine Justices, shall have its seat in

the Federal District, its own staff and jurisdiction throughout the national territory, and shall exercise, insofar as pertinent, the incumbencies provided for in article 96. (

ca

n

o. 20, 1998)

p

aragraph 1.

t

he Justices of the f

ederal a

udit c

ourt shall be appointed from

among Brazilians who meet the following requirements:

I – more than thirty-five and less than sixty-five years of age;

II – moral integrity and spotless reputation;

III – notable knowledge of the law, accounting, economics and finances or of

public administration;

IV – more than ten years of exercise of office or of actual professional activity

which requires the knowledge mentioned in the preceding item.

Paragraph 2.

The Justices of the Federal

Audit Court shall be chosen:

i

– one-third by the p

resident of the r

epublic with the approval of the f

ederal

se

nate, two of them being alternately chosen from among auditors and members of the

pu

blic pr

osecution at the co

urt, as indicated in a triple list by the co

urt, in accordance

with criteria of seniority and merit;

ii

– two-thirds by the

n

ational

c

ongress.

pa

ragraph 3.

th

e Justices of the fe

deral au

dit co

urt shall have the same

guarantees, prerogatives, impediments, remuneration, and advantages as the Justices

of the s

uperior c

ourt of Justice, their retirement pensions and other pensions being

ruled by the provisions of article 40.

p

aragraph 4.

t

he auditor, when substituting for a Justice, shall have the same

guarantees and impediments as the incumbent Justice, and, when in exercise of the other duties of the judicature, those of a Judge of a Federal Regional Court.

ar

ticle 74.

th

e le

gislative, ex

ecutive and Judicial po

wers shall maintain an

integrated system of internal control for the purpose of:

i

– evaluating the attainment of the goals established in the pluriannual plan,

the implementation of government programmes and of the budgets of the Union;

ii

– verifying the lawfulness and evaluating the results, as to effectiveness and

efficiency, of the budgetary, financial and property management in the agencies and

miolo_constitution_versao_camara.indd 68 17/6/2010 15:01:02

The Organization of the Powers 69

entities of the federal administration, as well as the use of public funds by private

legal entities;

i

ii

– exercising control over credit transactions, collateral signatures and

guarantees, as well as over the rights and assets of the Union;

iv – supporting external control in the exercise of its institutional mission.

p

aragraph 1.

t

he persons responsible for internal control shall, upon learning

of any irregularity or illegality, inform the Federal Audit Court about it, subject to

joint liability.

Paragraph 2. A

ny citizen, political party, association or labour union has standing

under the law to denounce irregularities or illegalities to the

f

ederal a

udit

c

ourt.

a

rticle 75.

t

he rules set forth in this section shall apply, where appropriate, to the

organization, composition and control of the Audit Courts of the states and of the

f

ederal

d

istrict, as well as the a

udit

c

ourts and

c

ouncils of the municipalities.

Sole paragraph.

t

he state c

onstitutions shall provide for the respective a

udit

c

ourts, which shall be formed by seven council members.

CH

a

P

te

R

ii

t

he

e

xecutive

p

ower

se

C

tion

i

t

he

p

resident and the vice-

p

resident of the

r

epublic

a

rticle 76.

t

he e

xecutive p

ower is exercised by the p

resident of the r

epublic,

assisted by the Ministers of

s

tate.

a

rticle 77.

t

he election of the p

resident and vice-

p

resident of the r

epublic shall

take place simultaneously, on the first Sunday of October, in the first round, and on the

last s

unday of o

ctober, in the second round, as the case may be, of the year preceding

the one in which the current presidential term of office ends. (CA No. 16, 1997)

pa

ragraph 1.

th

e election of the pr

esident of the re

public shall imply the election

of the vice-

p

resident registered with him.

p

aragraph 2.

t

he candidate who, being registered by a political party, obtains

an absolute majority of votes, not counting blank or void votes, shall be considered elected

p

resident.

Paragraph 3. I

f no candidate attains an absolute majority in the first voting, another

election shall be held within twenty days from the announcement of the results, the competition being between the two candidates with the highest number of votes, and being considered elected the candidate with the majority of valid votes.

p

aragraph 4.

s

hould one of the candidates, before the second round of voting is

held, die, withdraw or become legally impaired, the candidate with the highest number of votes among the remaining candidates shall be called.

p

aragraph 5.

if

in the event of the preceding paragraphs, more than one candidate

with an equal number of votes remain in second place, the eldest one shall qualify.

miolo_constitution_versao_camara.indd 69 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 70

in a session of the n

ational c

ongress, pledging to maintain, defend and carry out the

Constitution, obey the laws, promote the general well-being of the Brazilian people,

sustain the union, the integrity and the independence of Brazil.

Sole paragraph.

i

n the event that, after ten days from the date scheduled for the

inauguration, the p

resident or the vice-

p

resident, except by reason of force majeure,

has not taken office, the office shall be declared vacant.

ar

ticle 79.

th

e vi

ce-pr

esident shall replace the pr

esident in the event of impediment

and shall succeed him in the event of vacancy.

Sole paragraph.

i

n addition to other duties attributed to him by a supplementary

law, the vice-

p

resident shall assist the p

resident whenever summoned by him for

special missions.

a

rticle 80.

i

n the event of impediment of the p

resident and of the vice-

p

resident,

or of vacancy of the respective offices, the President of the Chamber of Deputies, the

p

resident of the s

enate and the c

hief Justice of the s

upreme f

ederal c

ourt shall be

called successively to exercise the

p

residency.

a

rticle 81.

In

the event of vacancy of the offices of President and Vice-President

of the r

epublic, elections shall be held ninety days after the occurrence of the last

vacancy.

Paragraph 1.

If

the vacancy occurs during the last two years of the President’s

term of office, the National Congress shall hold elections for both offices thirty days

after the last vacancy, as established by law.

Paragraph 2.

In

any of the cases, those elected shall complete the term of office

of their predecessors.

a

rticle 82.

The

term of office of the President of the Republic is four years, and

it shall commence on January 1 of the year following the year of his election. (

ca

No. 16, 1997)

a

rticle 83.

t

he p

resident and the vice-

p

resident of the r

epublic may not, without

authorization from the National Congress, leave the country for a period of more than

fifteen days, subject to loss of office.

se

C

tion

ii

d

uties of the

p

resident of the

r

epublic

a

rticle 84.

The

President of the Republic shall have the exclusive power to: (CA

No. 23, 1999; CA No. 32, 2001)

I – appoint and dismiss the Ministers of State;

i

i

– exercise, with the assistance of the Ministers of st

ate, the higher

management of the federal administration;

iii

– start the legislative procedure, in the manner and in the cases set forth

in this Constitution;

miolo_constitution_versao_camara.indd 70 17/6/2010 15:01:02

The Organization of the Powers 71

iv – sanction, promulgate and order the publication of laws, as well as to issue

decrees and regulations for the true enforcement thereof;

V – veto bills, wholly or in part;

VI – provide for the following, by means of a decree: a) organization and operation of federal government services, whenever no

augmentation of expenditures or creation or abolishment of government

bodies is involved;

b) abolishment of public positions or posts, if vacant;

vii

– maintain relations with foreign s

tates and to accredit their diplomatic

representatives;

viii

– conclude international treaties, conventions and acts, ad referendum of

the National Congress;

IX – decree the state of defense and the state of siege;

X – decree and enforce federal intervention;X

i

– upon the opening of the legislative session, send a government message

and plan to the n

ational c

ongress, describing the state of the nation and requesting

the actions he deems necessary;

X

ii

– grant pardons and reduce sentences, after hearing the entities instituted

by law, if necessary;

X

iii

– exercise the supreme command of the a

rmed f

orces, to appoint the

Commanders of the Navy, the Army, and the Air Force, to promote general officers

and to appoint them to the offices held exclusively by them;

Xi

v

– appoint, after approval by the se

nate, the Justices of the su

preme

f

ederal c

ourt and those of the superior courts, the Governors of the territories, the

Attorney-General of the Republic, the President and the Directors of the Central Bank and other civil servants, when established by law;

XV – appoint, with due regard for the provisions of article 73, the Justices of

the Federal Audit Court;

XVI – appoint judges in the events established by this Constitution and the

Advocate-General of the Union;

X

vii

– appoint members of the c

ouncil of the r

epublic, in accordance with

article 89, VII;

X

viii

– call and preside over the c

ouncil of the r

epublic and the n

ational

Defense Council;

XIX – declare war, in the event of foreign aggression, authorized by the

National Congress or confirmed by it, whenever it occurs between legislative sessions and, under the same conditions, to decree full or partial national mobilization;

XX – make peace, authorized or confirmed by the National Congress;

XXI – award decorations and honorary distinctions;

miolo_constitution_versao_camara.indd 71 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 72

XXii – permit, in the cases set forth by supplementary law, foreign forces to

pass through the national territory

, or to remain temporarily therein;

XXi

ii

– submit to the na

tional co

ngress the pluriannual plan, the bill of

budgetary directives and the budget proposals set forth in this Constitution;

XX

iv

– render, each year, accounts to the n

ational c

ongress concerning the

previous fiscal year, within sixty days of the opening of the legislative session;

XXV – fill and abolish federal government positions, as set forth by law;

XX

vi

– issue provisional measures, with force of law, according to article

62;

XX

vii

– perform other duties set forth in this

c

onstitution.

Sole paragraph. th

e pr

esident of the re

public may delegate the duties mentioned

in items VI, XII and XXV , first part, to the Ministers of State, to the Attorney-General

of the rep

ublic or to the ad

vocate-General of the un

ion, who shall observe the

limitations established in the respective delegations.

se

C

tion

iii

l

iability of the

p

resident of the

r

epublic

ar

ticle 85.

th

ose acts of the pr

esident of the re

public which attempt on the fe

deral

Constitution and especially on the following, are crimes of malversation:

I – the existence of the Union;

ii

– the free exercise of the

l

egislative

p

ower, the Judicial

p

ower, the

p

ublic

Prosecution and the constitutional Powers of the units of the Federation;

III – the exercise of political, individual and social rights;

IV – the internal security of the country;V – probity in the administration;VI – the budgetary law;

vii

– compliance with the laws and with court decisions.

Sole paragraph. T

hese crimes shall be defined in a special law, which shall

establish the rules of procedure and trial.

a

rticle 86.

i

f charges against the p

resident of the r

epublic are accepted by two-

thirds of the c

hamber of d

eputies, he shall be submitted to trial before the s

upreme

f

ederal c

ourt for common criminal offenses or before the f

ederal s

enate for crimes

of malversation.

Paragraph 1.

The President shall be suspended from his functions:

i

– in common criminal offenses, if the accusation or the complaint is received

by the Federal Supreme Court;

ii

– in the event of crimes of malversation, after the proceeding is instituted

by the

f

ederal

s

enate.

miolo_constitution_versao_camara.indd 72 17/6/2010 15:01:02

The Organization of the Powers 73

paragraph 2. if, after a period of one hundred and eighty days, the trial has not

been

concluded, the suspension of the President shall cease without prejudice to the

normal progress of the proceeding.

pa

ragraph 3.

in

the event of common offenses, the pr

esident of the re

public shall

not be subject to arrest as long as no sentence is rendered.

Paragraph 4.

During

his term of office, the President of the Republic may not be

held liable to acts outside the performance of his functions.

se

C

tion

i

V

t

he Ministers of

s

tate

a

rticle 87.

The

Ministers of State shall be chosen from among Brazilians over

twenty-one years of age and in possession of their political rights.

Sole paragraph.

t

he Minister of s

tate, in addition to other duties established in

this Constitution and in the law, has the power to:

i

– exercise guidance, coordination and supervision of the agencies and entities

of the federal administration in the area of his authority and to countersign acts and

decrees signed by the President of the Republic;

II – issue instructions for the enforcement of laws, decrees and regulations;

i

ii

– submit to the pr

esident of the re

public an annual report on his

administration of the Ministry;

iv

– perform the acts pertinent to the duties assigned or delegated to him by

the

p

resident of the

r

epublic.

a

rticle 88.

t

he law shall provide for the creation and abolishment of Ministries

and government bodies. (

ca

n

o. 32, 2001)

se

C

tion

V

t

he

c

ouncil of the

r

epublic and the

n

ational

d

efense

c

ouncil

subse

C

tion

i

t

he

c

ouncil of the

r

epublic

a

rticle 89.

t

he c

ouncil of the r

epublic is a higher body for consultation by the

President of the Republic, and its members are:

I – the Vice-President of the Republic;

II – the President of the Chamber of Deputies;III – the President of the Federal Senate;IV – the majority and the minority leaders in the Chamber of Deputies;V – the majority and the minority leaders in the Federal Senate;VI – the Minister of Justice;

miolo_constitution_versao_camara.indd 73 17/6/2010 15:01:02

Constitution of the Federative Republic of Brazil 74

VII – six born Brazilian citizens, with over thirty-five years of age, two of

which appointed by the p

resident of the r

epublic, two elected by the f

ederal s

enate

and two elected by the Chamber of Deputies, all with a term of office of three years,

the re-appointment being prohibited.

a

rticle 90.

t

he c

ouncil of the r

epublic has the competence to express opinion

on:

I – federal intervention, state of defense and state of siege;

ii

– matters relevant to the stability of the democratic institutions.

pa

ragraph 1.

th

e pr

esident of the re

public may call a st

ate Minister to participate

in the c

ouncil meeting, when the agenda includes a matter related to the respective

Ministry.

Paragraph 2.

The

organization and operation of the Council of the Republic shall

be regulated by law.

subse

C

tion

ii

t

he

n

ational

d

efense

c

ouncil

ar

ticle 91.

th

e na

tional de

fense co

uncil is a consultation body of the pr

esident of

the re

public on matters related to national sovereignty and the defense of the democratic

state, and the following participate in it as natural members: (CA No. 23, 1999)

I – the Vice-President of the Republic;

II – the President of the Chamber of Deputies;III – the President of the Federal Senate;IV – the Minister of Justice;V – the Minister of Defense; VI – the Minister of External Relations;VII – the Minister of Planning;

viii

– the

c

ommanders of the

n

avy, the a

rmy, and the a

ir

f

orce.

Paragraph 1.

It is the competence of the National Defense Council:

I

– to express opinion in the event of declaration of war and making of peace,

as established in this Constitution;

ii

– to express opinion on the decreeing of state of defense, state of siege and

federal intervention;

iii

– to propose the criteria and conditions for the use of areas which are

indispensable to the security of the national territory and to express opinion on their

actual use, especially on the boundary zone and on those related to the preservation and exploitation of natural resources of any kind;

iv

– to study, propose and monitor the development of initiatives required to

guarantee national independence and the defense of the democratic state.

miolo_constitution_versao_camara.indd 74 17/6/2010 15:01:02

The Organization of the Powers 75

Paragraph 2. T he organization and the operation of the National Defense Council

shall be regulated by law.

CH

a

P

te

R

iii

t

he Judicial

p

ower

se

C

tion

i

General

p

rovisions

ar

ticle 92. T

he following are the bodies of the Judicial Power: (CA No. 45,

2004)

I – the Supreme Federal Court;

I-A – the National Council of Justice; II – the Superior Court of Justice;III – the Federal Regional Courts and the Federal Judges;IV – the Labour Courts and Judges;V – the Electoral Courts and Judges;VI – the Military Courts and Judges;

vii

– the c

ourts and Judges of the states, of the f

ederal d

istrict and of the

territories.

p

aragraph 1.

t

he s

upreme f

ederal c

ourt, the n

ational c

ouncil of Justice, and

the

s

uperior

c

ourts have their seat in the

f

ederal

c

apital.

pa

ragraph 2.

th

e su

preme fe

deral co

urt and the su

perior co

urts have their

jurisdiction over the entire Brazilian territory.

a

rticle 93.

a

supplementary law, proposed by the s

upreme f

ederal c

ourt, shall

provide for the Statute of the Judicature, observing the following principles: (CA No.

19, 1998; CA No. 20, 1998; CA No. 45, 2004)

I – admission into the career, with the initial post of substitute judge, by means

of a civil service entrance examination of tests and presentation of academic and professional credentials, with the participation of the Brazilian Bar Association in all phases, at least three years of legal practice being required of holders of a

b

.

a

. in

law, and obeying the order of classification for appointments;

ii

– promotion from level to level, based on seniority and merit, alternately,

observing the following rules:

a) the promotion of a judge who has appeared in a merit list for three

consecutive times or for five alternate times is mandatory;

b) merit promotion requires two years in office in the respective level and

that the judge should appear in the top fifth part of the seniority list of such level, unless no one satisfying such requirements is willing to accept the vacant post;

miolo_constitution_versao_camara.indd 75 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 76

c) appraisal of merit according to performance and to the objective criteria of

productivity and promptness in the exercise of the jurisdictional function

and according to attendance and achievement in official or recognized improvement courses;

d) in determining seniority, the court may only reject the judge with the longest

service by the justified vote of two-thirds of its members, according to a specific procedure, full defense being ensured, the voting being repeated until the selection is concluded;

e) promotion shall not be granted to a judge who unjustifiably withholds case

records beyond the legal deadline, and he may not return them to the court archives without providing the necessary disposition thereof or decision thereon;

iii

– access to the courts of second instance shall obey seniority and merit,

alternately, as determined at the last or single level;

IV – provision of official courses for preparation, improvement, and promotion

of judges, while the participation in an official course or in a course recognized by a national school for the education and further development of judges shall constitute a mandatory stage of the tenure acquisition process;

v

– the compensation of the Justices of the s

uperior c

ourts shall correspond

to ninety-five percent of the monthly compensation stipulated for the Justices of the Supreme Federal Court, and the compensation of the other judges shall be stipulated by law and distributed, at the federal and state levels, according to the respective categories of the national judiciary structure, and the difference between categories may not be higher than ten per cent or lower than five per cent, nor higher than ninety-five per cent of the monthly compensation of the Justices of the

s

uperior c

ourts, with due regard,

in any of the cases, for the provisions of articles 37, XI, and 39, paragraph 4;

VI – the retirement of judges as well as the granting of pensions for their

dependents shall comply with the provisions of article 40;

VII – a permanent judge shall reside in the respective judicial district, except

when otherwise authorized by the court;

viii

– the acts of removal, of placement on paid availability, and of retirement

of a judge, for public interest, shall be based on a decision by the vote of the absolute majority of the respective court or of the National Council of Justice, full defense being ensured;

VIII-A – the removal upon request or the exchange of judges of same-level

judicial districts shall obey, insofar as pertinent, the provisions of subitems a, b, c,

and e of item II;

IX – all judgements of the bodies of the Judicial Power shall be public, and all

decisions shall be justified, under penalty of nullity, but the law may limit attendance, in given acts, to the interested parties and to their lawyers, or only to the latter, whenever preservation of the right to privacy of the party interested in confidentiality will not harm the right of the public interest to information;

miolo_constitution_versao_camara.indd 76 17/6/2010 15:01:03

The Organization of the Powers 77

X – administrative decisions of courts shall be supported by a recital and shall

be made in open session, and disciplinary decisions shall be taken by the vote of the

absolute majority of their members;

XI – in courts with more than twenty-five judges, a special body may be

constituted, with a minimum of eleven and a maximum of twenty-five members, to exercise delegated administrative and jurisdictional duties which are under the powers of the full court, half of the positions being filled according to seniority and the other half through election by the full court;

X

i

i

– courts will operate continuously, without interruption, collective vacation

being forbidden for first instance judges and courts of second instance, and there must be judges on duty at all times on days in which courts are closed;

XIII – the number of judges in each court shall be proportional to the effective

judicial demand and to the respective population;

X

i

v

– court employees will receive delegation to carry out administrative acts

and acts aimed at the mere disposition of matters, without a decisional nature;

XV – proceedings will be assigned immediately upon filing, at all levels of

jurisdiction.

a

rticle 94.

One-fifth

of the seats of the Federal Regional Courts, of the Courts

of the s

tates, and of the f

ederal d

istrict and the territories

shall be occupied by

members of the Public Prosecution, with over ten years of office, and by lawyers of notable juridical learning and spotless reputation, with over ten years of effective professional activity, nominated in a list of six names by the entities representing the respective classes.

Sole paragraph.

U

pon receiving the nominations, the court shall organize a

list of three names and shall send it to the e

xecutive p

ower, which shall, within the

subsequent twenty days, select one of the listed names for appointment.

a

rticle 95.

Judges

enjoy the following guarantees: (CA No. 19, 1998; CA No. 45,

2004)

I – life tenure, which, at first instance, shall only be acquired after two years

in office, loss of office being dependent, during this period, on deliberation of the court to which the judge is subject, and, in other cases, on a final and unappealable judicial decision;

ii

– irremovability, save for reason of public interest, under the terms of article

93, VIII;

III – irreducibility of compensation, except for the provisions of articles 37,

X and X

i

, 39, paragraph 4, 150,

ii

, 153,

iii

, and 153, paragraph 2,

i

.

Sole paragraph.

Judges are forbidden to:

I

– hold, even when on paid availability, another office or position, except for

a teaching position;

ii

– receive, on any account or for any reason, court costs or participation in

a lawsuit;

miolo_constitution_versao_camara.indd 77 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 78

III – engage in political or party activities;

IV – receive, on any account or for any reason, financial aid or contribution

from individuals, and from public or private institutions, save for the exceptions set

forth in law;

V – practice law in the court or tribunal on which they served as judges, for a

period of three years following their retirement or discharge.

a

rticle 96. It is of the exclusive competence of: (CA

No. 41, 2003)

I – the courts:

a) to elect their directive bodies and to draw up their internal regulations, in

compliance with the rules of proceedings and the procedural guarantees of

the parties, and regulating the competence and the operation of the respective jurisdictional and administrative bodies;

b) to organize their secretariats and auxiliary services, as well as those of the

tribunals connected with them, guaranteeing the exercise of the respective inspection activities;

c) to fill, under the terms of this Constitution, offices of career judges within

their respective jurisdiction;

d) to propose the creation of new courts of first instance;

e) to fill, by means of a civil service entrance examination of tests, or of tests

and presentation of academic and professional credentials, according to

the provisions of article 169, sole paragraph

3, the offices required for the

administration of justice, except for the positions of trust as defined in law;

f) to grant leave, vacations and other absences to their members and to the

judges and employees who are immediately subordinated to them;

ii

– the s

upreme f

ederal c

ourt, the s

uperior c

ourts and the c

ourts of Justice,

to propose to the respective l

egislative p

ower, with due regard for the provisions

of article 169:

a) alteration in the number of members of the lower courts;

b) creation and abolishment of offices and the remuneration of the auxiliary

services and of the courts connected with them, as well as the establishment

of the compensation for their members and for the judges, including those of the lower courts, if existing;

c) creation or abolishment of lower courts;

d) alteration of the judicial organization and division;III – the Courts of Justice, to try judges of the states, of the Federal District

and of the

territories,

as well as members of the p

ublic p

rosecution, for common

crimes and crimes of malversation, except in those cases within the competency of

the

e

lectoral

c

ourts.

3 should read as “paragraph 1”, by virtue of the provisions of ca no. 19/1998.

miolo_constitution_versao_camara.indd 78 17/6/2010 15:01:03

The Organization of the Powers 79

unconstitutional

only by the vote of the absolute majority of their members or of the

members of the respective special body.

a

rticle 98.

t

he u

nion, in the f

ederal d

istrict and in the territories, and the states

shall create: (CA No. 22, 1999; CA No. 45, 2004)

I – special courts, filled by togated judges, or by togated and lay judges, with

powers for conciliation, judgement and execution of civil suits of lesser complexity

and criminal offenses of lower offensive potential, by oral and summary proceedings, allowing, in the cases established in law, the settlement and judgement of appeals by panels of judges of first instance;

II – remunerated justice of peace, formed by citizens elected by direct, universal

and secret vote, with a term of office of four years and competence to, under the terms of the law, perform marriages, examine qualification proceedings, ex officio or

in view of the presentation of a challenge, and exercise conciliatory functions, of a non-jurisdictional nature, besides others established by law.

p

aragraph 1.

f

ederal legislation shall provide for the establishment of special

courts within

f

ederal Justice.

pa

ragraph 2. J

udicial costs and fees shall be assigned exclusively to fund services

related to activities which are specific of Justice.

ar

ticle 99. T

he Judicial Power is ensured of administrative and financial autonomy.

(

ca

n

o. 45, 2004)

p

aragraph 1.

t

he courts shall prepare their budget proposals, within the limits

stipulated jointly with the other Powers in the law of budgetary directives.

pa

ragraph 2.

th

e proposal shall, after hearing the other interested courts, be

forwarded:

i

– at the federal level, by the presidents of the s

upreme f

ederal c

ourt and of

the Superior Courts, with the approval of the respective courts;

ii

– at the level of the states and of the f

ederal d

istrict and the territories, by

the presidents of the

c

ourts of Justice, with the approval of the respective courts.

p

aragraph 3.

i

f the government bodies referred to in paragraph 2 do not forward

their respective budget proposals within the time period stipulated in the law of budgetary directives, the

e

xecutive p

ower shall, with a view to engrossing the annual

budget proposal, take into account the figures approved in the current budgetary law, such figures adjusted in accordance with the limits stipulated under the terms of paragraph 1 of this article.

p

aragraph 4.

i

f the budget proposals referred to in this article and thus forwarded

do not obey the limits stipulated under paragraph 1, the e

xecutive p

ower shall effect

the necessary adjustments with a view to engrossing the annual budget proposal.

Paragraph 5.

In

the implementation of the budget of a specific fiscal year, no

expenses may be incurred and no obligations may be assumed that exceed the limits

miolo_constitution_versao_camara.indd 79 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 80

stipulated in the law of budgetary directives, except when previously authorized, by

opening supplementary or special credits.

a

rticle 100.

p

ayments owed by the federal, state, f

ederal d

istrict, or municipal

treasuries, by virtue of a court decision, shall be made exclusively in chronological order of submission of court orders and charged to the respective credits, it being forbidden to designate cases or persons in the budgetary appropriations and in the additional credits opened for such purpose. (CA No. 20, 1998; CA No. 30, 2000; CA No. 37, 2002; CA No. 62, 2009)

p

aragraph 1.

s

upport-related debts include those arising from wages, salaries,

pay, pensions, and their supplementations, social security benefits and compensation for death and disability, such compensation being based on civil liability, by virtue of a final and unappealable judicial decision, and shall be paid before any other debts, except those referred to in

p

aragraph 2 of this article.

pa

ragraph 2.

su

pport-related debts owed to persons aged 60 (sixty) or over on the

date the respective court order is issued, or to persons with serious diseases, as defined by law, shall be paid before any other debts, up to an amount equivalent to three times the amount stipulated by law for the purposes of

p

aragraph 3 of this article, parceling

for such end being permitted, whereas the remaining amount shall be paid according to the chronological order of submission of respective court order.

pa

ragraph 3.

th

e provision contained in the head paragraph of this article,

regarding the issuance of court orders, does not apply to obligations defined by law as small amounts, which must be paid by the treasuries herein referred to by virtue of a final and unappealable court decision.

p

aragraph 4.

f

or the purposes of the provision of p

aragraph 3, different amounts

may be stipulated for the federating units through their own legislation and according to their various economic capabilities, whereas the minimum amount shall be equal to the amount of the highest benefit paid by the general Social Security scheme.

p

aragraph 5.

i

t is mandatory for the budgets of the federating units to include

the funds required for payment of debts arising from final and unappealable judicial decisions, stated in court orders submitted until or on July 1, and payment shall be made before the close of the subsequent fiscal year, on which date their amounts shall be adjusted for inflation.

p

aragraph 6.

t

he budgetary allocations and the credits opened shall be assigned

to the Judicial p

ower, it being within the competence of the p

residing Judge of the

c

ourt which rendered the decision of execution to determine full payment and to

authorize – upon petition of a creditor and exclusively in the event that his right of precedence is not respected or that the amount necessary to satisfy the debt has not been set aside – attachment of the respective amount.

Paragraph 7.

The

Presiding Judge of the appropriate Court who, by means of an

act or omission, delays or attempts to frustrate the regular payment of a court-ordered debt shall be liable to crime of malversation and shall also appear before the

n

ational

c

ouncil of Justice.

p

aragraph 8.

t

he issuance of a court order as a supplementation to or in addition

to an amount already paid, as well as the parceling, apportionment, or reduction of

miolo_constitution_versao_camara.indd 80 17/6/2010 15:01:03

The Organization of the Powers 81

the amount under execution – so that the provision of p aragraph 3 may be applied to

a portion of the total amount – are forbidden.

pa

ragraph 9.

at

the time a court order is issued, irrespective of the relevant

regulation, there shall be deducted from such court order, for the purpose of a set-off,

an amount corresponding to clear legal debits, either registered or not under debts in execution and attributed to the original creditor by the

treasury

in debt, including

future accruing installments of parcelings, save for those whose execution has been stayed by virtue of administrative or judicial challenge.

p

aragraph 10.

b

efore a court order is issued, the relevant court shall request that

the Treasury in debt must provide, within 30 (thirty) days, otherwise subject to loss of the right to offset, information on the debits which meet the conditions stipulated in

p

aragraph 9, for the purposes set forth in said

p

aragraph.

p

aragraph 11.

i

n accordance with legislation of the federating unit in debt, a

creditor may employ court order credits to purchase public property belonging to the respective federating unit.

p

aragraph 12.

a

s from the date c

onstitutional a

mendment no. 62 is enacted, the

amounts stated in court orders, after such court orders are issued up until effective payment, irrespective of their nature, shall be adjusted according to the official rate applied to savings accounts, whereas, for the purpose of compensation of delay in the payment, simple interest will be applied at the same percentage of interest applied to savings accounts, the employment of compensatory interest being excluded.

p

aragraph 13.

c

reditors may assign their court order credits, in whole or in part,

to third parties, irrespective of consent by the debtor, and the provisions of pa

ragraphs

2 and 3 shall not be applied to the assignee.

p

aragraph 14.

a

ssignment of court order credits shall only produce effects after

communication to the court of origin and to the federating unit in debt by filing a relevant petition.

Paragraph 15.

W

ithout prejudice to the provisions of this article, a supplementary

law to this f

ederal c

onstitution may establish a special regime for the payment of

court-ordered debts owed by st

ates, the fe

deral di

strict, and Municipalities, providing

for earmarked net current revenues and for payment term and methods.

p

aragraph 16.

t

he f

ederal Government may, at its own discretion and under the

terms of relevant law, take on debts resulting from court orders issued against a State, the Federal District, or a Municipality, and refinance them directly.

s

e

C

tion

ii

t

he

s

upreme

f

ederal

c

ourt

a

rticle 101.

t

he s

upreme f

ederal c

ourt is composed of eleven Justices, chosen

from among citizens over thirty-five and under sixty-five years of age, of notable juridical learning and spotless reputation.

Sole paragraph.

t

he Justices of the s

upreme f

ederal c

ourt shall be appointed

by the p

resident of the r

epublic, after their nomination has been approved by the

absolute majority of the Federal Senate.

miolo_constitution_versao_camara.indd 81 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 82

ar ticle 102. th e su preme fe deral co urt is responsible, essentially, for safeguarding

the Constitution, and it is within its competence: (CA No. 3, 1993; CA No. 22, 1999;

CA No. 23, 1999; CA No. 45, 2004)

I – to institute legal proceeding and trial, in the first instance, of:

a) direct actions of unconstitutionality of a federal or state law or normative

act, and declaratory actions of constitutionality of a federal law or normative

act;

b) in common criminal offenses, the pr

esident of the re

public, the vi

ce-

p

resident, the members of the n

ational c

ongress, its own Justices and the

Attorney-General of the Republic;

c) in common criminal offenses and crimes of malversation, the Ministers of

st

ate and the co

mmanders of the na

vy, the ar

my, and the ai

r fo

rce, except

as provided in article 52, i,

the members of the su

perior co

urts, those of the

Federal Audit Court and the heads of permanent diplomatic missions;

d) habeas corpus , when the petitioner is any one of the persons referred to in

the preceding subitems; the writ of mandamus and habeas data against acts

of the pr

esident of the re

public, of the di

recting bo

ards of the ch

amber

of de

puties and of the fe

deral se

nate, of the fe

deral au

dit co

urt, of the

Attorney-General of the Republic and of the Supreme Federal Court itself;

e) litigation between a foreign State or an international organization and the

Union, a state, the Federal District or a territory;

f) disputes and conflicts between the Union and the states, the Union and the

f

ederal d

istrict, or between one another, including the respective indirect

administration bodies;

g) extradition requested by a foreign state;

h) (revoked); i) habeas corpus, when the constraining party is a

s

uperior c

ourt, or when the

constraining party or the petitioner is an authority or employee whose acts

are directly subject to the jurisdiction of the Supreme Federal Court, or in the case of a crime, subject to the same jurisdiction in one sole instance;

j) criminal review of and actions to overrule its final judgements;

l) claims for the preservation of its powers and guarantee of the authority of

its decisions;

m) enforcement of court decisions in the cases where it has original competence,

the delegation of duties to perform procedural acts being allowed;

n) a suit in which all members of the judicature are directly or indirectly

involved, and a suit in which more than half of the members of the court

of origin are disqualified or have a direct or indirect interest;

o) conflicts of powers between the Superior Court of Justice and any other

courts, between

su

perior co

urts, or betweeen the latter and any other

court;

miolo_constitution_versao_camara.indd 82 17/6/2010 15:01:03

The Organization of the Powers 83

p) petitions of provisional remedy in direct actions of unconstitutionality;

q) writs of injunction, when drawing up of the regulation is the responsibility

of the p

resident of the r

epublic, of the n

ational c

ongress, of the c

hamber

of d

eputies, of the f

ederal s

enate, of the d

irecting b

oards of one of these

legislative houses, of the fe

deral au

dit co

urt, of one of the su

perior co

urts,

or of the Supreme Federal Court itself;

r) lawsuits against the n

ational c

ouncil of Justice and against the n

ational

Council of the Public Prosecution;

II – to judge on ordinary appeal:a) habeas corpus, writs of mandamus, habeas data and writs of injunction

decided in a sole instance by the Superior Courts, in the event of a denial;

b) political crimes;III – to judge, on extraordinary appeal, cases decided in a sole or last instance,

when the decision appealed:

a) is contrary to a provision of this Constitution;b) declares a treaty or a federal law unconstitutional;c) considers valid a law or act of a local government contested in the light of

this Constitution;

d) considers valid a local law challenged in the light of a federal law.

p

aragraph 1.

a

claim of non-compliance with a fundamental precept deriving

from this c

onstitution shall be examined by the s

upreme f

ederal c

ourt, under the

terms of the law.

pa

ragraph 2.

fi

nal decisions on merits, pronounced by the su

preme fe

deral co

urt,

in direct actions of unconstitutionality and declaratory actions of constitutionality

shall have force against all, as well as a binding effect, as regards the other bodies of the Judicial

p

ower and the governmental entities and entities owned by the f

ederal

Government, in the federal, state, and local levels.

pa

ragraph 3.

in

an extraordinary appeal, the appealing party must demonstrate the

general repercussion of the constitutional issues discussed in the case, under the terms of the law, so that the

c

ourt may examine the possibility of accepting the appeal, and

it may only reject it through the opinion of two thirds of its members.

ar

ticle 103. T

he following may file direct actions of unconstitutionality and

declaratory actions of constitutionality: (CA No. 3, 1993; CA No. 45, 2004)

I – the President of the Republic;

II – the directing board of the Federal Senate;III – the directing board of the Chamber of Deputies;

iv

– the d

irecting b

oard of a s

tate l

egislative a

ssembly or of the f

ederal

District Legislative Chamber;

V – a State Governor or the Federal District Governor;

miolo_constitution_versao_camara.indd 83 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 84

VI – the Attorney-General of the Republic;

VII – the Federal Council of the Brazilian Bar Association;VIII – a political party represented in the National Congress;

iX

– a confederation of labour unions or a professional association of a

nationwide nature.

p

aragraph 1.

t

he a

ttorney-General of the r

epublic shall be previously heard in

actions of unconstitutionality and in all suits under the power of the s

upreme f

ederal

c

ourt.

Paragraph 2. W

hen unconstitutionality is declared on account of lack of a measure

to render a constitutional provision effective, the competent Power shall be notified

for the adoption of the necessary actions and, in the case of an administrative body, to do so within thirty days.

Paragraph 3.

When

the Supreme Federal Court examines the unconstitutionality

in abstract of a legal provision or normative act, it shall first summon the Advocate-General of the

u

nion, who shall defend the impugned act or text.

Paragraph 4.

(Revoked).

a

rticle 103-

a

.

t

he f

ederal s

upreme c

ourt may, ex-officio or upon request, upon

decision of two thirds of its members, and following reiterated judicial decisions on constitutional matter, issue a summula (restatement of case law) which, as from publication in the official press, shall have a binding effect upon the lower bodies of the Judicial

p

ower and the direct and indirect public administration, in the federal,

state, and local levels, and which may also be reviewed or revoked, as set forth in law. (

ca

n

o. 45, 2004)

pa

ragraph 1.

th

e purpose of a summula is to validate, construe, and impart

effectiveness to some rules about which there is a current controversy among judicial bodies or among such bodies and the public administration, and such controversy brings about serious juridical insecurity and the filing of multiple lawsuits involving similar issues.

Paragraph 2.

W

ithout prejudice to the provisions the law may establish, the

issuance, review, or revocation of a summula may be requested by those who may file a direct action of unconstitutionality.

Paragraph 3.

A

n administrative act or judicial decision which contradicts the

applicable summula or which unduly applies a summula may be appealed to the

s

upreme f

ederal c

ourt, and if the appeal is granted, such c

ourt shall declare the

administrative act null and void or overrule the appealed judicial decision, ordering that a new judicial decision be issued, with or without applying the summula, as the case may be.

ar

ticle 103- b. T

he National Council of Justice is composed of 15 (fifteen) members

appointed for a two-year term of office, one reappointment being permitted, as follows: (CA No. 45, 2004; CA No. 61, 2009)

I – the Chief Justice of the Supreme Federal Court;

miolo_constitution_versao_camara.indd 84 17/6/2010 15:01:03

The Organization of the Powers 85

II – a Justice of the Superior Court of Justice, nominated by said Court;

III – a Justice of the Superior Labour Court, nominated by said Court;IV – a judge of a State Court of Justice, nominated by the Supreme Federal

Court;

V – a state judge, nominated by the Supreme Federal Court;VI – a judge of a Federal Regional Court, nominated by the Superior Court

of Justice;

VII – a federal judge, nominated by the Superior Court of Justice;VIII – a judge of a Regional Labour Court, nominated by the Superior Labour

Court;

IX – a labour judge, nominated by the Superior Labour Court;X – a member of the

pu

blic pr

osecution of the un

ion, nominated by the

Attorney-General of the Republic;

X

i

– a member of a state p

ublic p

rosecution, chosen by the a

ttorney-General

of the r

epublic from among the names indicated by the competent body of each

state institution;

XII – two lawyers, nominated by the Federal Board of the Brazilian Bar

Association;

XIII – two citizens of notable juridical learning and spotless reputation, one

of whom nominated by the c

hamber of d

eputies and the other one by the f

ederal

s

enate.

pa

ragraph 1.

th

e co

uncil shall be presided over by the ch

ief Justice of the

s

upreme f

ederal c

ourt and, in the event of his absence or impediment, by the most

senior a

ssociate Justice of the

s

upreme

f

ederal

c

ourt.

pa

ragraph 2.

th

e other members of the co

uncil shall be appointed by the pr

esident

of the Republic, after their nomination has been approved by the absolute majority

of the

f

ederal

s

enate.

p

aragraph 3.

i

f the nominations set forth in this article are not effected within the

legal deadline, selection shall be incumbent upon the

f

ederal

s

upreme

c

ourt.

p

aragraph 4.

i

t is incumbent upon the c

ouncil to control the administrative and

financial operation of the Judicial Branch and the proper discharge of official duties by judges, and it shall, in addition to other duties that the Statute of the Judicature may confer upon it:

i

– ensure that the Judicial b

ranch is autonomous and that the s

tatute of the

Judicature is complied with, and it may issue regulatory acts within its jurisdiction, or recommend measures;

II – ensure that article 37 is complied with, and examine, ex-officio or upon

request, the legality of administrative acts carried out by members or bodies of the Judicial Branch, and it may revoke or review them, or stipulate a deadline for the

adoption of the necessary measures to achieve due execution of the law, without

prejudice to the powers of the Federal Audit Court;

miolo_constitution_versao_camara.indd 85 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 86

iii – receive and examine complaints against members or bodies of the Judicial

Branch, including against its ancillary services, clerical offices, and bodies in charge of

notary and registration services which operate by virtue of Government delegation or have been made official, without prejudice to the courts’ disciplinary competence and their power to correct administrative acts, and it may order that pending disciplinary proceedings be forwarded to the

n

ational c

ouncil of Justice, determine the removal,

placement on paid availability, or retirement with compensation or pension in proportion to the length of service, and enforce other administrative sanctions, full defense being ensured;

iv

– present a formal charge to the p

ublic p

rosecution, in the case of crime

against public administration or abuse of authority;

v

– review, ex-officio or upon request, disciplinary proceedings against judges

and members of courts tried in the preceding twelve months;

VI – prepare a twice-a-year statistical report on proceedings and judgements

rendered per unit of the Federation in the various bodies of the Judicial Branch;

v

ii

– prepare a yearly report, including the measures it deems necessary, on the

state of the Judicial Branch in the Country and on the Council’s activities, which report must be an integral part of a message to be forwarded by the

ch

ief Justice of the su

preme

fe

deral co

urt to the na

tional co

ngress upon the opening of the legislative session.

pa

ragraph 5.

th

e Justice of the su

perior co

urt of Justice shall occupy the position

of co

rregidor-Justice, in charge of internal affairs, and he shall be excluded from the

assignment of proceedings in said co

urt, the following duties being incumbent upon him,

in addition to those that may be conferred upon him by the Statute of the Judicature:

i

– to receive complaints and accusations from any interested party regarding

judges and judiciary services;

ii

– to exercise executive functions of the c

ouncil concerning inspection and

general correction;

III – to requisition and appoint judges, charging them with specific duties,

and to requisition court employees, including in the s

tates, the f

ederal d

istrict, and

the territories.

pa

ragraph 6.

th

e at

torney General of the re

public and the ch

airman of the

Federal Board of the Brazilian Bar Association shall be competent to petition before the

c

ouncil.

Paragraph 7.

The

Union shall establish Justice ombudsman’s offices, including

in the f

ederal d

istrict and in the territories,

with powers to receive complaints and

accusations from any interested party against members or bodies of the Judicial

b

ranch, or against their ancillary services, thus presenting formal charges directly to

the

n

ational

c

ouncil of Justice.

se

C

tion

iii

t

he

s

uperior

c

ourt of Justice

a

rticle 104.

t

he s

uperior c

ourt of Justice is composed of a minimum of thirty-

three Justices. (

ca

n

o. 45, 2004)

miolo_constitution_versao_camara.indd 86 17/6/2010 15:01:03

The Organization of the Powers 87

Sole paragraph. t he Justices of the s uperior c ourt of Justice shall be appointed

by the President of the Republic chosen from among Brazilians over thirty-five and

under sixty-five years of age, of notable juridical learning and spotless reputation, after the nomination has been approved by the absolute majority of the Federal Senate, as follows:

I – one-third shall be chosen from among judges of the Federal Regional Courts

and one-third from among judges of the Courts of Justice, nominated in a list of three names prepared by the Court itself;

i

i

– one-third, in equal parts, shall be chosen from among lawyers and members

of the f

ederal p

ublic p

rosecution, the p

ublic p

rosecution of the states, the p

ublic

p

rosecution of the f

ederal d

istrict and the territories,

alternately, nominated under

the terms of article 94.

a

rticle 105.

The

Superior Court of Justice has the competence to: (CA No. 23,

1999; CA No. 45, 2004)

I – institute legal proceeding and trial, in the first instance, of:

a) in common crimes, the Governors of the states and of the f

ederal d

istrict,

and, in such crimes and in crimes of malversation, the judges of the Courts of Justice of

the states and of the fe

deral di

strict, the members of the au

dit co

urts of the states and

of the fe

deral di

strict, those of the fe

deral re

gional co

urts, of the re

gional el

ectoral

and l

abour c

ourts, the members of a

udit c

ouncils or c

ourts of the municipalities

and the members of the Public Prosecution of the Union who act before courts;

b) writs of mandamus and habeas data against an act of a Minister of s

tate, of

the Commanders of the Navy, the Army, and the Air Force, or of the Court itself;

c) habeas corpus, when the constraining party or the petitioner is any of the

persons mentioned in subitem a, or when the constraining party is a court subject to

its jurisdiction, a Minister of State or Commander of the Navy, the Army, or the Air Force, except for the competence of the Electoral Courts;

d) conflicts of competence between any courts, except as provided in article

102,

i

, o, as well as between a court and the judges not subject to it and between

judges subject to different courts;

e) criminal review of and actions to overrule its final judgements;

f) claims for the preservation of its competence and guarantee of the authority

of its decisions;

g) conflicts of duties between administrative and judicial authorities of the

Union, or between judicial authorities of one state and administrative authorities of

another or of the Federal District, or between those of the latter and those of the Union;

h) writs of injunction, when the drawing up of a regulation is the responsibility

of a federal body, entity, or authority, of the direct or indirect administration, with the exception of the cases within the competence of the

s

upreme f

ederal c

ourt and of

the bodies of the Military Justice, of the e

lectoral Justice, of the l

abour Justice and

of the Federal Justice;

i) the homologation of foreign court decisions and the granting of exequatur

to letters rogatory;

miolo_constitution_versao_camara.indd 87 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 88

II – judge, on ordinary appeal:

a) habeas corpus decided in a sole or last instance by the f

ederal r

egional

co

urts or by the courts of the states, of the fe

deral di

strict and the

Territories, in the event of a denial;

b) writs of mandamus decided in a sole instance by the fe

deral re

gional co

urts

or by the courts of the states, of the f

ederal d

istrict and the territories,

in

the event of a denial;

c) cases in which the parties are a foreign state or international organization,

on the one part, and a municipality or a person residing or domiciled in the

country, on the other part;

III – judge, on special appeal, the cases decided, in a sole or last instance, by

the f

ederal r

egional c

ourts or by the courts of the states, of the f

ederal d

istrict and

the Territories, when the decision appealed:

a) is contrary to a treaty or a federal law, or denies it effectiveness;

b) considers valid an act of a local government challenged in the light of a

federal law;

c) confers upon a federal law an interpretation different from that which has

been conferred upon it by another court.

Sole paragraph.

The

following shall operate in conjunction with the Superior

Court of Justice:

i

– the n

ational s

chool for the e

ducation and f

urther d

evelopment of Judges,

which shall be in charge, among other duties, of regulating the official courses for

admission into and promotion in the career;

ii

– the c

ouncil of f

ederal Justice, which shall, under the terms of the law,

exercise administrative and budgetary supervision over the Federal Courts of first and second instances, in the quality of the main body of the system, having powers to correct administrative acts, and whose decisions shall have a binding nature.

se

C

tion

i

V

t

he

f

ederal

r

egional

c

ourts and the

f

ederal Judges

a

rticle 106. The following are the bodies of Federal Justice:

I – the Federal Regional Courts;

ii

– the

f

ederal Judges.

a

rticle 107.

t

he f

ederal r

egional c

ourts are composed of a minimum of seven

judges, selected, whenever possible, in the respective region and nominated by the President of the Republic from among Brazilians over thirty and under sixty-five years of age, as follows: (CA No. 45, 2004)

I – one-fifth shall be chosen from among lawyers effectively practicing their

professional activity for more than ten years and from among members of the

f

ederal

Public Prosecution, with over ten years of service;

miolo_constitution_versao_camara.indd 88 17/6/2010 15:01:03

The Organization of the Powers 89

II – the others, by means of promotion of federal judges with over five years

in office, for seniority and merit, alternately.

Paragraph 1. A

law shall regulate the removal or exchange of judges of the Federal

Regional Courts and shall determine their jurisdiction and seat.

Paragraph 2. T

he Federal Regional Courts shall install an itinerant justice system,

carrying out hearings and other functions typical of the operation of justice, within

the territorial limits of the respective jurisdiction, and making use of public and community facilities.

Paragraph 3.

The

Federal Regional Courts may operate in a decentralized mode,

by creating regional Divisions, with a view to affording claimants full access to justice in all stages of the judicial action.

a

rticle 108. The Federal Regional Courts have the competence to:

I – institute legal proceeding and trial, in the first instance, of:

a)

federal judges within the area of their jurisdiction, including those of the

Military and la

bour co

urts, in common crimes and crimes of malversation,

and the members of the p

ublic p

rosecution of the u

nion, except for the

competence of the Electoral Courts;

b) criminal reviews of and actions to overrule their final judgements or those

of the federal judges of the region;

c) writs of mandamus and habeas data against an act of the c

ourt itself or of

a federal judge;

d) habeas corpus, when the constraining authority is a federal judge;e) conflicts of competence between federal judges subject to the Court;II – judge, at the level of appeal, cases decided by federal judges and by

state judges in the exercise of the federal competence within the area of their

jurisdiction.

a

rticle 109.

The

federal judges have the competence to institute legal proceeding

and trial of: (CA No. 45, 2004)

i

– cases in which the u

nion, an autonomous government agency or a federal

public company have an interest as plaintiffs, defendants, privies or interveners, with the exception of cases of bankruptcy, of job-related accidents, and of those subject to the Electoral and Labour Courts;

II – cases between a foreign state or international organization and a

municipality or a person domiciled or residing in the country;

iii

– cases based on a treaty or a contract between the u

nion and a foreign

State or international organization;

i

v

– political crimes and criminal offenses committed against the assets,

services or an interest of the un

ion or of its autonomous agencies or public companies,

excluding misdemeanours and excepting the competence of the Military and el

ectoral

Courts;

miolo_constitution_versao_camara.indd 89 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 90

v – crimes covered by an international treaty or convention, when, the

prosecution having started in the country, the result has taken place or should have

taken place abroad, or conversely;

V-A – cases regarding human rights referred to in paragraph 5 of this article;

VI – crimes against the organization of labour and, in the cases determined by

law, those against the financial system and the economic and financial order;

vii

– habeas corpus, in criminal matters within their competence or when the

coercion is exercised by an authority whose acts are not directly subject to another

jurisdiction;

v

iii

– writs of mandamus and habeas data against an act of a federal authority,

except for the cases within the competence of the federal courts;

i

X – crimes committed aboard ships or aircrafts, excepting the competence

of the Military Courts;

X – crimes or irregular entry or stay of a foreigner, execution of letters rogatory,

after exequatur, and of foreign court decisions, after homologation, cases related to

nationality, including the respective option, and to naturalization;

X

i

– disputes over the rights of

i

ndians.

p

aragraph 1.

c

ases in which the u

nion is the plaintiff shall be instituted in the

judicial section where the other party is domiciled.

Paragraph 2.

Cases

brought against the Union may be instituted in the judicial

section where the plaintiff is domiciled, or where the act or fact giving rise to the suit occurred or where the item is located, or further, in the

f

ederal

d

istrict.

p

aragraph 3.

c

ases in which the parties are a social security institution and its

beneficiary shall undergo legal proceeding and trial in the state courts, in the forum of the domicile of the beneficiaries or insured participants, whenever the district is not the seat of a federal court of first instance, in which case the law may allow other cases to be also processed and judged by the state courts.

pa

ragraph 4.

in

the event of the preceding paragraph, the appropriate appeal shall

always be taken to the Federal Regional Court within the area of jurisdiction of a judge of first instance.

paragraph

5.

i

n cases of serious human rights violations, and with a view to

ensuring compliance with obligations deriving from international human rights treaties to which Brazil is a party, the Attorney-General of the Republic may request, before the

s

uperior c

ourt of Justice, and in the course of any of the stages of the inquiry or

judicial action, that jurisdiction on the matter be taken to Federal Justice.

a

rticle 110.

Each

state, as well as the Federal District, shall be a judicial section,

which shall have its seat in the respective capital, and there shall be courts of first instance located where established in law.

Sole paragraph.

In

the Federal Territories, the jurisdiction and duties attributed

to federal judges shall be within the competence of the judges of the local justice, under the terms of the law.

miolo_constitution_versao_camara.indd 90 17/6/2010 15:01:03

The Organization of the Powers 91

seCtion V

l

abour

c

ourts and Judges

a

rticle 111.

The

following are the bodies of Labour Justice: (CA No. 24, 1999;

ca

n

o. 45, 2004)

I – the Superior Labour Court;

II – the Regional Labour Courts;

iii

–

l

abour Judges.

Paragraph 1.

(Revoked).

Paragraph 2.

(Revoked).

Paragraph 3.

(Revoked).

ar

ticle 111- a.

th

e su

perior la

bour co

urt shall be composed of twenty-seven

Justices, chosen from among Brazilians over thirty-five and under sixty-five years of

age, appointed by the President of the Republic after approval by the absolute majority of the Federal Senate, as follows: (CA No. 45, 2004)

I – one-fifth from among lawyers effectively practicing their professional activity

for more than ten years and from among members of the

la

bour pu

blic pr

osecution with

over ten years of effective exercise, with due regard for the provisions of article 94;

II – the others, from among career judges of the Regional Labour Courts,

nominated by the

s

uperior

l

abour

c

ourt.

Paragraph 1. T

he law shall make provisions for the powers of the Superior Labour

c

ourt.

Paragraph 2. T

he following shall operate in conjunction with the Superior Labour

Court:

i

– the n

ational s

chool for the e

ducation and f

urther d

evelopment of l

abour

Judges, which shall have the duty, among others, to regulate the official courses for admission into and promotion in the career;

ii

– the h

igher c

ouncil of l

abour Justice, which shall, under the terms of

the law, exercise administrative, budgetary, financial, and property supervision over Labour Courts of first and second instances, in the quality of central body of the system, whose decisions shall have a binding effect.

a

rticle 112.

The

law shall establish Labour Courts of first instance, allowing, in

districts not covered by their jurisdiction, for the attribution of such jurisdiction to judges, appeals being admissible to the respective Regional Labour Court. (CA No. 45, 2004)

ar

ticle 113. T

he law shall regulate the constitution, installation, jurisdiction,

powers, guarantees, and conditions of exercise of the bodies of l

abour Justice. (

ca

n

o. 24, 1999)

a

rticle 114.

Labour

Justice has the power to hear and try: (CA No. 20, 1998; CA

n

o. 45, 2004)

miolo_constitution_versao_camara.indd 91 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 92

I – judicial actions arising from labour relations, comprising entities of public

international law and of the direct and indirect public administration of the u

nion,

the states, the Federal District, and the municipalities;

II – judicial actions involving the exercise of the right to strike;

III – judicial actions regarding union representation, when the opposing parties

are trade unions, or trade unions and workers, or trade unions and employers;

iv

– writs of mandamus, habeas corpus, and habeas data, when the action

being challenged involves matter under the jurisdiction of Labour Justice;

V – conflicts of powers between bodies having jurisdiction over labour issues,

except as provided under article 102,

i

, o;

VI – judicial actions arising from labour relations which seek compensation

for moral or property damages;

VII – judicial actions regarding administrative penalties imposed upon

employers by the bodies charged with supervising labour relations;

viii

– ex-officio enforcement of the welfare contributions set forth in article

195,

i

, a, and II, and their legal raises, arising from the judgments it pronounces;

i

X – other disagreements arising from labour relations, under the terms of

the law.

p

aragraph 1.

i

f collective negotiations are unsuccessful, the parties may elect

arbitrators.

p

aragraph 2.

i

f any of the parties refuses collective negotiation or arbitration,

they may file a collective labour suit of an economic nature, by mutual agreement,

and Labour Courts may settle the conflict, respecting the minimum legal provisions for the protection of labour, as well as any provisions previously agreed upon.

Paragraph 3.

In

the event of a strike in an essential activity which may possibly

injure the public interest, the Labour Public Prosecution may file a collective labour suit, and it is incumbent upon Labour Courts to settle the conflict.

a

rticle 115.

t

he r

egional l

abour c

ourts are composed of a minimum of seven

judges, selected, whenever possible, in the respective region and appointed by the President of the Republic from among Brazilians over thirty and under sixty-five years of age, as follows: (CA No. 45, 2004)

I – one-fifth shall be chosen from among lawyers effectively practicing their

professional activity for more than ten years and from among members of the

l

abour

p

ublic p

rosecution with over ten years of effective service, with due regard for the

provisions of article 94;

II – the others, by means of promotion of labour judges for seniority and

merit, alternately.

Paragraph 1. T

he Regional Labour Courts shall install an itinerant justice system,

carrying out hearings and other functions typical of the operation of justice, within the territorial limits of the respective jurisdiction, and making use of public and community facilities.

miolo_constitution_versao_camara.indd 92 17/6/2010 15:01:03

The Organization of the Powers 93

Paragraph 2. The Regional Labour Courts may operate in a decentralized mode,

by creating regional Divisions, with a view to affording claimants full access to justice

in all stages of the judicial action.

a

rticle 116.

In

the Labour Courts of first instance, jurisdiction shall be exercised

by a single judge. (CA No. 24, 1999)

Sole paragraph.

(Revoked).

a

rticle 117.

(Revoked). (CA

No. 24, 1999)

se

C

tion

V

i

e

lectoral

c

ourts and Judges

a

rticle 118.

The following are the bodies of Electoral Justice:

I – the Superior Electoral Court;

II – the Regional Electoral Courts;III – the Electoral Judges;

iv – the

e

lectoral

b

oards.

a

rticle 119.

t

he s

uperior e

lectoral c

ourt shall be composed of a minimum of

seven members chosen:

I – through election, by secret vote:a) three judges from among the Justices of the Supreme Federal Court;

b) two judges from among the Justices of the Superior Court of Justice;

II – through appointment by the President of the Republic, two judges from

among six lawyers of notable juridical learning and good moral repute, nominated

by the

s

upreme

f

ederal

c

ourt.

Sole paragraph.

t

he s

uperior e

lectoral c

ourt shall elect its p

resident and vice-

p

resident from among the Justices of the s

upreme f

ederal c

ourt, and its e

lectoral

c

orregidor from among the Justices of the

s

uperior

c

ourt of Justice.

a

rticle 120.

t

here shall be a r

egional e

lectoral c

ourt in the capital of each state

and in the

f

ederal

d

istrict.

Paragraph 1.

The Regional Electoral Courts shall be composed:

I – through election, by secret vote:

a) of two judges chosen from among the judges of the Court of Justice;b) of two judges chosen by the Court of Justice from among court judges;

II

– of a judge of the Federal Regional Court with its seat in the capital of a

state or in the Federal District, or, in the absence thereof, of a federal judge chosen

in any case by the respective Federal Regional Court;

III – through appointment by the President of the Republic, of two judges

nominated by the Court of Justice from among six lawyers of notable juridical learning and good moral repute.

miolo_constitution_versao_camara.indd 93 17/6/2010 15:01:03

Constitution of the Federative Republic of Brazil 94

paragraph 2. the r egional e lectoral c ourt shall elect its p resident and vice-

President from among its judges.

ar

ticle 121. A

supplementary law shall provide for the organization and competence

of the electoral courts, judges and boards.

Paragraph 1.

The

members of the courts, the court judges and the members of

the electoral boards, while in office and insofar as applicable to them, shall enjoy full

guarantees and shall be non-removable.

Paragraph 2.

The

Judges of the Electoral Courts, except for a justified reason,

shall serve for a minimum of two years, and never for more than two consecutive two-year periods, and their substitutes shall be chosen at the same time and through the same procedure, in equal numbers for each category.

p

aragraph 3.

t

he decisions of the s

uperior e

lectoral c

ourt are unappealable,

save those which are contrary to this c

onstitution and those denying habeas corpus

or writs of mandamus.

p

aragraph 4.

d

ecisions of the r

egional e

lectoral c

ourts may only be appealed

against when:

i

– they are rendered against an express provision of this c

onstitution or of

a law;

ii

– there is a divergence in the interpretation of a law between two or more

electoral courts;

III – they relate to ineligibility or issuance of certificates of electoral victory

in federal or state elections;

IV – they annul certificates of electoral victory or decree the loss of federal

or state elective offices;

v

– they deny habeas corpus, writs of mandamus, habeas data or writs of

injunction.

se

C

tion

V

ii

Military

c

ourts and Judges

a

rticle 122. The following are the bodies of Military Justice:

I – the Superior Military Court;

ii

– the Military

c

ourts and Judges instituted by law.

a

rticle 123.

The

Superior Military Court shall be composed of fifteen life Justices,

appointed by the p

resident of the r

epublic, after their nomination has been approved

by the Federal Senate, three of which shall be chosen from among General officers of the Navy, four from among General officers of the Army, three from among General officers of the Air Force, all of them in active service and in the highest rank of the career, and five from among civilians.

Sole paragraph.

T

he civil justices shall be chosen by the President of the Republic

from among Brazilians over thirty-five years of age, as follows:

miolo_constitution_versao_camara.indd 94 17/6/2010 15:01:04

The Organization of the Powers 95

I – three from among lawyers of notable juridical learning and spotless conduct,

with over ten years of effective professional activity;

II – two, by equal choice, from among auditor judges and members of the

p

ublic

p

rosecution of the Military Justice.

ar

ticle 124.

th

e Military co

urts have the competence to carry out legal proceeding

and trial of the military crimes defined by law.

Sole paragraph.

The

law shall make provisions for the organization, operation

and competence of the Military

c

ourts.

se

C

tion

V

iii

c

ourts and Judges of the

s

tates

ar

ticle 125. T

he states shall organize their judicial system, observing the principles

established in this

c

onstitution. (

ca

n

o. 45, 2004)

Paragraph 1.

The

competence of the courts shall be defined in the Constitution

of the state, and the law of judicial organization shall be the initiative of the Court

of Justice.

pa

ragraph 2.

th

e states have the competence to institute actions of unconstitutionality

of state or municipal laws or normative acts in the light of the co

nstitution of the state,

it being forbidden to attribute legitimation to act to a sole body.

pa

ragraph 3.

by

proposal of the co

urt of Justice, a state law may create the

State Military Justice, constituted, at first instance, by judges and by the Councils of Justice and, at second instance, by the

c

ourt of Justice itself, or by the c

ourt of

Military Justice in those states in which the military troops count more than twenty thousand members.

pa

ragraph 4.

th

e st

ate Military Justice has the competence to institute legal

proceeding and trial of the military of the states for military crimes defined in law, as well as to hear and try judicial actions against military disciplinary measures, with due regard for the competence of the jury when the victim is a civilian, and the competent court shall decide upon the loss of post or rank of officers and of the grade of servicemen.

Paragraph 5.

The

judges of the military justice system have the competence, in

the quality of single-judge courts, to institute legal proceeding and trial of military crimes committed against civilians and to hear and try judicial actions against military disciplinary measures, and it is incumbent upon the

c

ouncil of Justice, presided over

by a judge, to institute legal proceeding and trial of other military crimes.

Paragraph 6. T

he Court of Justice may operate in a decentralized mode, by

creating regional Divisions, with a view to affording claimants full access to justice in all stages of the judicial action.

Paragraph 7.

T

he Court of Justice shall install an itinerant justice system,

carrying out hearings and other functions typical of the operation of justice, within the territorial limits of the respective jurisdiction, and making use of public and community facilities.

miolo_constitution_versao_camara.indd 95 17/6/2010 15:01:04

Constitution of the Federative Republic of Brazil 96

Justice shall propose the creation of specialized single-judge courts, with exclusive

competence for agrarian matters. (

ca

n

o. 45, 2004)

Sole paragraph.

Whenever

efficient jurisdictional service requires it, the judge

shall go personally to the site of the litigation.

CH

a

P

te

R

i

V

t

he

f

unctions

e

ssential to Justice

se

C

tion

i

t

he

p

ublic

p

rosecution

ar

ticle 127.

th

e pu

blic pr

osecution is a permanent institution, essential to the

jurisdictional function of the State, and it is its duty to defend the juridical order, the democratic regime and the inalienable social and individual interests. (

ca n

o. 19,

1998; CA No. 45, 2004)

p

aragraph 1.

u

nity, indivisibility and functional independence are institutional

principles of the

p

ublic

p

rosecution.

p

aragraph 2.

t

he p

ublic p

rosecution is ensured of functional and administrative

autonomy, and it may, observing the provisions of article 169, propose to the le

gislative

Power the creation and abolishment of its offices and auxiliary services, filling them through a civil service entrance examination of tests or of tests and presentation of academic and professional credentials, the remuneration policies, and the career plans; the law shall provide for its organization and operation.

p

aragraph 3.

t

he p

ublic p

rosecution shall prepare its budget proposal within the

limits established in the law of budgetary directives.

p

aragraph 4.

i

f the p

ublic p

rosecution does not forward its respective budget

proposal within the time period stipulated in the law of budgetary directives, the Executive Power shall, with a view to engrossing the annual budget proposal, take into account the figures approved in the current budgetary law, such figures adjusted in accordance with the limits stipulated under the terms of paragraph 3.

p

aragraph 5.

i

f the budget proposal referred to in this article and thus forwarded

does not obey the limits stipulated under paragraph 3, the ex

ecutive po

wer shall effect

the necessary adjustments with a view to engrossing the annual budget proposal.

Paragraph 6.

In

the implementation of the budget of a specific fiscal year, no

expenses may be incurred and no obligations may be assumed that exceed the limits stipulated in the law of budgetary directives, except when previously authorized, by opening supplementary or special credits.

a

rticle 128.

The

Public Prosecution comprises: (CA No. 19, 1998; CA No. 45,

2004)

I – the Public Prosecution of the Union, which includes:

a) the Federal Public Prosecution;

miolo_constitution_versao_camara.indd 96 17/6/2010 15:01:04

The Organization of the Powers 97

b) the Labour Public Prosecution;

c) the Military Public Prosecution;d) the Public Prosecution of the Federal District and the Territories;

ii

– the

p

ublic

p

rosecutions of the states.

pa

ragraph 1.

th

e head of the pu

blic pr

osecution of the un

ion is the at

torney-

General of the re

public, appointed by the pr

esident of the re

public from among

career members over thirty-five years of age, after his name has been approved by

the absolute majority of the members of the Federal Senate, for a term of office of two years, reappointment being allowed.

pa

ragraph 2.

th

e removal of the at

torney-General of the re

public, on the initiative

of the President of the Republic, shall be subject to prior authorization by the absolute majority of the Federal Senate.

p

aragraph 3.

t

he p

ublic p

rosecutions of the states, of the f

ederal d

istrict and the

territories

shall prepare a list of three names from among career members, under the

terms of the respective law, for the selection of their a

ttorney-General, who shall be

appointed by the Head of the Executive Power for a term of office of two years, one reappointment being allowed.

p

aragraph 4.

t

he a

ttorneys-General in the states, in the f

ederal d

istrict and the

Territories may be removed from office by deliberation of the absolute majority of the

l

egislative

p

ower, under the terms of the respective supplementary law.

pa

ragraph 5.

su

pplementary laws of the un

ion and of the states, which may be

proposed by the respective Attorneys-General, shall establish the organization, the duties and the statute of each Public Prosecution, observing, as regards their members:

I – the following guarantees:

a) life tenure, after two years in office, with loss of office only by a final and

unappealable judicial decision;

b) irremovability, save for reason of public interest, through decision of the

competent collegiate body of the

p

ublic p

rosecution, by the vote of the

absolute majority of its members, full defense being ensured;

c) irreducibility of compensation, stipulated according to article 39, paragraph

4, and with due regard for the provisions of articles 37, X and XI, 150, II,

153, III, 153, paragraph 2, I;

II – the following prohibitions:

a) receiving, on any account or for any reason, fees, percentages or court

costs;

b) practicing the legal profession;c) participating in a commercial company, under the terms of the law;d) exercising, even when on paid availability, any other public function, except

for a teaching position;

e) engaging in political or party activities;

miolo_constitution_versao_camara.indd 97 17/6/2010 15:01:04

Constitution of the Federative Republic of Brazil 98

f) receiving, on any account or for any reason, financial aid or contribution

from individuals, and from public or private institutions, save for the exceptions set

forth in law.

p

aragraph 6.

t

he provisions of article 95, sole paragraph, v,

shall apply to the

members of

p

ublic

p

rosecution.

a

rticle 129.

The

following are institutional functions of the Public Prosecution:

(

ca

n

o. 45, 2004)

i

– to initiate, exclusively, public criminal prosecution, under the terms of

the law;

ii

– to ensure effective respect by the p

ublic a

uthorities and by the services

of public relevance for the rights guaranteed in this Constitution, taking the action required to guarantee such rights;

iii

– to institute civil investigation and public civil suit to protect public and

social property, the environment and other diffuse and collective interests;

iv

– to institute action of unconstitutionality or representation for purposes

of intervention by the un

ion or by the states, in the cases established in this

Constitution;

V – to defend judicially the rights and interests of the Indian populations;

VI – to issue notifications in administrative procedures within its competence,

requesting information and documents to support them, under the terms of the

respective supplementary law;

vii

– to exercise external control over police activities, under the terms of the

supplementary law mentioned in the previous article;

v

iii

– to request investigatory procedures and the institution of police

investigation, indicating the legal grounds of its procedural acts;

i

X – to exercise other functions which may be conferred upon it, provided

that they are compatible with its purpose, with judicial representation and judicial consultation for public entities being forbidden.

pa

ragraph 1.

le

gitimation by the pu

blic pr

osecution for the civil actions set forth

in this article shall not preclude those of third parties in the same cases, according to the provisions of this

c

onstitution and of the law.

pa

ragraph 2.

th

e functions of pu

blic pr

osecution may only be exercised by career

members, who must reside in the judicial district of their respective assignment, save when otherwise authorized by the head of the institution.

Paragraph 3.

Admission

into the career of Public Prosecution shall take place by

means of a civil service entrance examination of tests and presentation of academic and professional credentials, ensuring participation by the Brazilian Bar Association in such examination, at least three years of legal practice being required of holders of a B.A. in law, and observing, for appointment, the order of classification.

p

aragraph 4.

t

he provisions of article 93 shall apply to the p

ublic p

rosecution,

where appropriate.

miolo_constitution_versao_camara.indd 98 17/6/2010 15:01:04

The Organization of the Powers 99

pa ragraph 5. in the pu blic pr osecution, proceedings will be assigned immediately

upon filing.

ar

ticle 130.

th

e provisions of this section concerning rights, prohibitions and

form of investitute apply to the members of the p

ublic p

rosecution before the a

udit

c

ourts.

a

rticle 130-

a

.

t

he n

ational c

ouncil of the p

ublic p

rosecution is composed of

fourteen members appointed by the p

resident of the r

epublic, after their nomination

has been approved by the absolute majority of the Federal Senate, for a two-year term

of office, one reappointment being permitted, as follows. (CA No. 45, 2004)

I – the Attorney-General of the Republic, who chairs the Council;

ii

– four members of the p

ublic p

rosecution of the u

nion, representing each

one of its careers;

III – three members of the Public Prosecution of the States;

IV – two judges, one of whom nominated by the Supreme Federal Court and

the other one by the Superior Court of Justice;

V – two lawyers, nominated by the Federal Board of the Brazilian Bar

Association;

VI – two citizens of notable juridical learning and spotless reputation, one

of whom nominated by the c

hamber of d

eputies and the other one by the f

ederal

s

enate.

pa

ragraph 1.

th

e members of the co

uncil who are members of the pu

blic

pr

osecution shall be nominated by their respective bodies, under the terms of the law.

p

aragraph 2.

i

t is incumbent upon the n

ational c

ouncil of the p

ublic p

rosecution

to control the administrative and financial operation of the Public Prosecution and the

proper discharge of official duties by its members, and it shall:

i

– ensure that the pu

blic pr

osecution is autonomous in its operation and

administration, and it may issue regulatory acts within its jurisdiction, or recommend measures;

II – ensure that article 37 is complied with, and examine, ex-officio or upon

request, the legality of administrative acts carried out by members or bodies of the Public Prosecution of the Union and of the States, and it may revoke or review them, or stipulate a deadline for the adoption of the necessary measures to achieve due execution of the law, without prejudice to the powers of Audit Courts;

iii

– receive and examine complaints against members or bodies of the p

ublic

p

rosecution of the u

nion or of the s

tates, including against their ancillary services,

without prejudice to such institutions’ disciplinary competence and their power to correct administrative acts, and it may order that pending disciplinary proceedings be forwarded to the

na

tional co

uncil of the pu

blic pr

osecution, determine the

removal, placement on paid availability, or retirement with compensation or pension in proportion to the length of service, and enforce other administrative sanctions, full

defense being ensured;

miolo_constitution_versao_camara.indd 99 17/6/2010 15:01:04

Constitution of the Federative Republic of Brazil 100

iv – review, ex-officio or upon request, disciplinary proceedings against

members of the p

ublic p

rosecution of the u

nion or of the s

tates tried in the preceding

twelve months;

v

– prepare a yearly report, including the measures it deems necessary, on the

state of the Public Prosecution in the Country and on the Council’s activities, which

report must be an integral part of the message referred to in article 84, X

i

.

p

aragraph 3.

t

he c

ouncil shall, by means of secret voting, choose a national

c

orregidor, from among the members of the p

ublic p

rosecution who compose the

c

ouncil, reappointment being forbidden, and the following duties shall be incumbent

upon him, in addition to those that may be conferred upon him by law:

i

– to receive complaints and accusations from any interested party regarding

members of the Public Prosecution and its ancillary services;

ii

– to exercise executive functions of the c

ouncil concerning inspection and

general correction;

iii

– to requisition and appoint members of the p

ublic p

rosecution, delegating

specific duties to such members, and to requisition employees of Public Prosecution bodies.

Paragraph 4.

T

he Chairman of the Federal Board of the Brazilian Bar Association

shall be competent to petition before the

c

ouncil.

Paragraph 5.

Federal

and state legislation shall establish ombudsman’s offices

for the p

ublic p

rosecution, with powers to receive complaints and accusations from

any interested party against members or bodies of the

p

ublic

p

rosecution, including

against their ancillary services, thus presenting formal charges directly to the na

tional

c

ouncil of the

p

ublic

p

rosecution.

se

C

tion

ii

t

he

p

ublic a

dvocacy (

ca

n

o. 19, 1998)

a

rticle 131.

t

he a

dvocacy-General of the u

nion is the institution which, either

directly or through a subordinated agency, represents the Union judicially or extrajudicially, and it is responsible, under the terms of the supplementary law which provides for its organization and operation, for the activities of judicial consultation and assistance to the

e

xecutive

p

ower.

p

aragraph 1.

t

he a

dvocacy-General of the u

nion is headed by the a

dvocate-

General of the u

nion, freely appointed by the p

resident of the r

epublic from among

citizens over thirty-five years of age, of notable juridical learning and spotless reputation.

pa

ragraph 2.

ad

mission into the initial classes of the careers of the institution dealt

with in this article shall take place by means of a civil service entrance examination of tests and presentation of academic and professional credentials.

p

aragraph 3.

i

n the execution of receivable taxes of a tributary nature, the u

nion

shall be represented by the office of the Attorney-General of the Public Finances, observing the provisions of the law.

miolo_constitution_versao_camara.indd 100 17/6/2010 15:01:04

The Organization of the Powers 101

ar ticle 132. T he Prosecutors of the states and of the Federal District, organized in a

career, admission into which shall depend on a civil service entrance examination of

tests and presentation of academic and professional credentials, with the participation of the Brazilian Bar Association in all of its stages, shall exercise judicial representation and judicial consultation for their respective federated units. (CA No. 19, 1998)

Sole paragraph.

t

he p

rosecutors referred to in this article are entitled to acquire

tenure after three years of effective exercise, by means of a performance appraisal carried out by the relevant agencies, following a detailed report issued by the corregidors.

se

C

tion

iii

t

he

l

egal

p

rofession and the

p

ublic

l

egal

d

efense

a

rticle 133.

The

lawyer is indispensable to the administration of justice and is

inviolable for his acts or manifestations in the exercise of his profession, within the limits of the law.

ar

ticle 134. T

he Public Legal Defense is an essential institution to the jurisdictional

function of the State and is responsible for the judicial guidance and the defense, in all levels, of the needy, under the terms of article 5,

l

XX

iv. (

ca

n

o. 45, 2004)

Paragraph 1.

A

supplementary law shall organize the Public Legal Defense of the

u

nion, of the f

ederal d

istrict and the territories

and shall prescribe general rules for

its organization in the states, into career offices filled, in the initial class, by means of a civil service entrance examination of tests and presentation of academic and professional credentials, with the guarantee of irremovability being ensured to its members and the practice of the legal profession beyond the institutional attributions being forbidden.

pa

ragraph 2.

th

e pu

blic le

gal de

fense of each state shall be ensured of functional

and administrative autonomy, as well as the prerogative to present its budget proposal within the limits set forth in the law of budgetary directives and in due compliance with the provisions of article 99, paragraph 2.

ar

ticle 135.

se

rvants in the careers regulated in se

ctions i

i

and i

ii

of this ch

apter

shall be remunerated according to article 39, paragraph 4. ( c

a no

. 19, 1998)

miolo_constitution_versao_camara.indd 101 17/6/2010 15:01:04

The Organization of the Powers 103

title V

t

he Defense of the

s

tate and

of the Democratic

i

nstitutions

CHaPteR i

t

he

s

tate of

d

efense and the

s

tate of

s

iege

se

C

tion

i

t

he

s

tate of

d

efense

a

rticle 136.