Judicial Review in Brazil

Introduction

Judicial review (controle de constitucionalidade) in Brazil is a sophisticated system combining two models: abstract review (controle abstrato or concentrado), modeled on the European Kelsenian model, and concrete review (controle concreto or difuso), modeled on the American system. The Supreme Federal Court (STF) plays the central role in constitutional review, though all Brazilian courts exercise some form of constitutional adjudication.

Historical Development

The 1891 Constitution

The Republic Constitution of 1891 introduced diffuse review modeled on the US system (Marbury v. Madison), allowing any court to declare legislation unconstitutional in specific cases. This system operated throughout the 20th century.

The 1934 Constitution

The 1934 Constitution introduced abstract review through the interventive representation (representação interventiva), allowing the federal government to challenge state laws that violated federal constitutional principles. This was the first element of concentrated review.

The 1988 Constitution

The 1988 Constitution expanded abstract review significantly, creating a comprehensive system of direct constitutional actions and broadening standing to file them.

Diffuse Review (Concrete Review)

Mechanism

Under diffuse review, any judge or court may declare a law unconstitutional in a specific case. The declaration typically applies only between the parties (inter partes), except where the Federal Senate may extend the decision’s effects.

The Federal Senate’s Role

Article 52, X of the Constitution provides that the Federal Senate may suspend the execution of a law declared unconstitutional by the STF in diffuse review. This mechanism, inherited from Brazilian tradition, allows the Senate to give erga omnes effects to STF decisions in concrete cases. However, the STF has increasingly moved toward declaring the unconstitutionality of laws directly, limiting the Senate’s role.

Appeal to the STF

Decisions of lower courts in constitutional matters may be appealed to the STF through extraordinary appeal (recurso extraordinário), subject to the general repercussion (repercussão geral) requirement.

Abstract Review (Concentrated Review)

Direct Actions

The 1988 Constitution established several direct actions for constitutional review:

• Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade, ADI): Challenges a federal or state law or normative act as unconstitutional
• Direct Action of Unconstitutionality by Omission (Ação Direta de Inconstitucionalidade por Omissão, ADO): Addresses legislative or administrative omissions that violate constitutional duties
• Declaratory Action of Constitutionality (Ação Declaratória de Constitucionalidade, ADC): Confirms the constitutionality of a federal law
• Argument of Non-Compliance with Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental, ADPF): A residual action for cases not covered by other direct actions

Standing

Under the 1988 Constitution, standing to file direct actions is broad: the President of the Republic, the Federal Senate, the Chamber of Deputies, state legislative assemblies, state governors, the Attorney General of the Republic, the Federal Council of the OAB, political parties with congressional representation, and union confederations or national class entities.

Effects

Decisions in abstract review are: (i) erga omnes — binding on all persons and entities; (ii) generally ex tunc — retroactive to the law’s enactment, though the STF may modulate effects; and (iii) binding on all branches of government.

General Repercussion

The general repercussion requirement (Article 102, §3, Constitution; Articles 1,035-1,039, CPC/2015) filters extraordinary appeals, requiring that the constitutional issue have relevance beyond the individual case. The STF may decide multiple cases with the same constitutional issue through a single leading case.

Binding Precedents

Súmula Vinculante

Constitutional Amendment 45/2004 introduced binding precedents (súmulas vinculantes), allowing the STF to issue binding statements applicable to all lower courts and public administration. The STF may issue, revise, or cancel binding precedents by a two-thirds majority.

Repetitive Appeals

The CPC/2015 established the repetitive appeals (recursos repetitivos) system for the STF and STJ, allowing the selection of representative cases to establish precedent for multiple pending cases.

Limits of Judicial Review

Political Questions

The STF has developed the political question doctrine (questão política), holding that certain matters committed to the discretion of the political branches are not justiciable. However, the STF has broadly interpreted its jurisdiction, particularly regarding fundamental rights.

Constitutional Amendments

The STF reviews constitutional amendments for compliance with entrenched clauses (cláusulas pétreas), including the federal form, separation of powers, direct voting, and fundamental rights.

Conclusion

Brazilian judicial review combines the strengths of both diffuse and concentrated models, providing comprehensive constitutional protection. The STF’s central role, the broad standing for direct actions, and the mechanisms of general repercussion and binding precedents create a robust framework for constitutional adjudication. The system continues to evolve, with ongoing debates about the proper limits of judicial power and the effective implementation of constitutional decisions.