Introductory notions about the Brazilian Constitution of 1988

By Nicholas Merlone

Legal Concept of Constitution

The Constitution is the basic rule of the entire legal system. It is, therefore, the assumption of validity of all infra-constitutional laws, that is, for a law to be valid, it must be compatible with the Constitution.

Let us now deal with the Brazilian Constitution of 1988 (BC / 88).

BC / 88 is promulgated, that is, democratic, prepared by the representatives of the people, which differs from the one granted, such as the 1937 Charter, imposed by the authorities;

It is written, because it is a solemn document;

It is formal, because, in addition to having constitutional matters, such as the separation of powers and rights and fundamental (material) guarantees, it has other matters (example: article 242, paragraph 2, BC / 88 - Pedro II School at Rio de Janeiro);

It is analytical, since it is an extensive, long-winded, repetitive Constitution;

 

It is ruling, since, in addition to providing for fundamental rights, it establishes state goals, that is, a plan, a direction for the State to guide itself. Example: article 3rd, BC / 88  -> objectives of the Brazilian Republic.

It is Rigid, because it is the one whose amendment procedure is more rigorous than that destined for other laws. (see procedure for the promulgation of constitutional amendments).

Regarding the structure of the Brazilian Constitution of 1988

It can be divided into three parts:

1) Preamble

2) Permanent Party

3) ADCT (Transitional Constitutional Provisions Act)

The Preamble is a short letter, a paragraph of the constituent's intentions. Although present in all Brazilian Constitutions, the preamble is not mandatory. It is a tradition in Brazil, but it is not mandatory.

IMPORTANT! According to the Supreme Federal Brazilian Court (STF, in portuguese), the preamble is NOT a constitutional rule. Preamble is within the scope of politics.

It is worth highlighting, then, three consequences of the fact that the preamble is not a constitutional rule: a) the preamble is not a mandatory repetition rule in  brazilian states constitutions; b) the word God in the preamble does not hurt the secularity of the Brazilian State; c) the preamble cannot be used as a parameter in the control of constitutionality

The Permanent Part goes from articles 1 to 250, BC / 88 (Fundamental Principles - articles 1 to 4, Fundamental Rights - articles 5 to 17, BC / 88, State structure - articles 18 and followings). This part may be subject to constitutional reform, it is not immutable.