Abstract Constitutional Review in Brazil

Introduction

Abstract constitutional review (controle abstrato de constitucionalidade) in Brazil is exercised by the Supreme Federal Court (STF) through a set of direct actions (ações diretas) that allow the Court to evaluate the constitutionality of laws and normative acts in the abstract, without a concrete case. The 1988 Constitution expanded abstract review significantly, creating a comprehensive system modeled on the Kelsenian European tradition. The system is governed primarily by Law 9.868/1999 (ADI and ADC) and Law 9.882/1999 (ADPF).

Direct Action of Unconstitutionality (ADI)

Purpose

The Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade, ADI) challenges a federal or state law or normative act as violating the Federal Constitution. It is the primary instrument for abstract review.

Standing

Article 103 establishes the following as legitimate petitioners: (i) President of the Republic; (ii) Federal Senate; (iii) Chamber of Deputies; (iv) state Legislative Assemblies; (v) state Governors; (vi) Attorney General of the Republic; (vii) Federal Council of the OAB; (viii) political parties with congressional representation; and (ix) union confederations and national class entities.

Procedure

The ADI is filed directly with the STF. The Attorney General of the Republic must be heard, and the Advocate General of the Union defends the challenged act. The STF may issue an injunction (medida cautelar) suspending the law’s effectiveness pending the final decision.

Decision

If the STF declares the law unconstitutional: (i) the decision has erga omnes effects; (ii) it is generally retroactive (ex tunc); (iii) the STF may modulate effects to protect legal certainty; and (iv) the decision is binding on all branches of government.

Declaratory Action of Constitutionality (ADC)

Purpose

The Declaratory Action of Constitutionality (Ação Declaratória de Constitucionalidade, ADC) seeks to confirm the constitutionality of a federal law. The ADC is functionally the inverse of the ADI.

Standing and Procedure

The same petitioners as the ADI may file an ADC. The procedure is similar, and the STF’s decision has the same binding and erga omnes effects.

Direct Action of Unconstitutionality by Omission (ADO)

Purpose

The Direct Action of Unconstitutionality by Omission (Ação Direta de Inconstitucionalidade por Omissão, ADO) addresses legislative or administrative omissions that violate the Constitution.

Remedy

If the STF finds an omission: (i) for legislative omissions, the Court notifies the relevant body to adopt the necessary measure; (ii) for administrative omissions, the Court establishes a time limit for compliance. In exceptional cases, the STF may directly regulate the matter.

Argument of Non-Compliance with Fundamental Precept (ADPF)

Purpose

The Argument of Non-Compliance with Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental, ADPF) is a residual action for cases not covered by other direct actions. It is used when: (i) the challenged act is municipal legislation (not reviewable by ADI); (ii) the challenged act pre-dates the 1988 Constitution; or (iii) the controversy involves a violation of fundamental constitutional precepts.

Scope

“Fundamental precepts” include: (i) fundamental rights; (ii) the separation of powers; (iii) democratic principles; and (iv) other constitutional foundations. The ADPF has been used in landmark cases, including ADPF 54 (anencephaly), ADPF 130 (Press Law), and ADPF 132 (same-sex unions).

Effects of Decisions

Erga Omnes

Decisions in abstract review bind all persons and entities, not only the parties to the action.

Binding Effect

Decisions in abstract review are binding on: (i) all lower courts; (ii) the public administration; and (iii) all branches of government. The binding effect does not prevent the STF from reviewing its own precedent.

Temporal Modulation

Under Article 27 of Law 9.868/1999, the STF may, by a two-thirds majority, restrict the retroactive effects of a declaration of unconstitutionality to protect legal certainty or exceptional public interest.

Interventive Action

ADI Interventiva

The interventive ADI (Ação Direta de Inconstitucionalidade Interventiva) is a special ADI that, if granted, may lead to federal intervention in a state that has violated federal constitutional principles. The procedure follows ADI rules.

Conclusion

Brazil’s system of abstract constitutional review is a sophisticated mechanism for ensuring constitutional supremacy. The range of direct actions — ADI, ADC, ADO, ADPF — allows the STF to address constitutional violations comprehensively. The broad standing provisions and the binding, erga omnes effects of decisions make abstract review a powerful instrument for enforcing constitutional norms.