MATÉRIA: Controle de Constitucionalidade

Brazilian Law: Abstract Review, Judicial Review, Preventive Control, Repressive Control, and Concrete Review

Brazilian law, particularly the Brazilian Federal Constitution of 1988, has undergone significant changes in its system of judicial review. The Brazilian system combines abstract and concrete models of judicial review, with the Federal Supreme Court (STF) serving as a constitutional court. This article explores the subtopics of abstract review, judicial review, preventive control, repressive control, and concrete review in the context of Brazilian law.

Abstract Review

Abstract constitutional control in Brazil is the responsibility of the Federal Supreme Court. The STF is tasked with ensuring the constitutionality of laws and government actions. This abstract review is an important aspect of the Brazilian constitutional system, as it serves to protect the fundamental rights and freedoms enshrined in the Brazilian Constitution.

Judicial Review

Judicial review in Brazil has its roots in the American judicial review model, but with some unique characteristics. The current Brazilian system of judicial review began as an incidental control, established in the First Republican Constitution of 1891. However, in the following decades, mechanisms for a greater centralization of control were created, leading to a proper centralized control in 1965 through a constitutional amendment. The 1988 Constitution further enlarged the number of those capable of exerting the centralized constitutional jurisdiction, including state agents, political parties, unions, and the OAB (The Brazilian Bar Association). This change transformed the position of the Brazilian Supreme Court within the political system, making it an active part in key political debates and an arena for various political and social conflicts.

Preventive Control

Preventive control in Brazilian law involves the Federal Supreme Court's ability to take direct action and issue injunctions in cases that allow the Court to overcome inertia and omission on the part of lawmakers. This power is more linked to the role of the STF as a constitutional court, as its aim is to uphold the constitutional order and fundamental rights. The Court also has the power to decree a binding precedent, introduced by the Reform of the Judiciary (Constitutional Amendment 45/2004).

Repressive Control

Repressive control refers to the court's power to strike down statutes and executive acts, which is a unique feature of the Brazilian judicial system. While all courts in Brazil have the judicial review power in concrete cases, only the Federal Supreme Court has the direct power of striking down statutes and executive acts.

Concrete Review

Concrete review in Brazilian law involves the review of specific cases where the constitutionality of a law or action is challenged. This review is conducted by the Federal Supreme Court, which has the power to issue binding decisions with erga omnes effectiveness, affecting all parties involved in the case and potentially setting a precedent for future cases.

In conclusion, the Brazilian legal system has a complex and nuanced approach to judicial review, combining abstract and concrete models, preventive and repressive control, and a strong emphasis on upholding fundamental rights and protecting the constitutional order. The Federal Supreme Court plays a central role in this system, ensuring that the Brazilian Constitution is upheld and that the rights of citizens are protected.