2016 Global Review of Constitutional Law

Brazil
DEVELOPMENTS IN BRAZILIAN CONSTITUTIONAL LAW
Luís Roberto Barroso, Brazilian Supreme Federal Court Justice, Tenured Professor of
Constitutional Law at the Rio de Janeiro State University. Juliano Zaiden Benvindo,
Tenured Professor of Constitutional Law at the University of Brasília; and Aline Osorio,
Clerk of the Brazilian Supreme Federal Court and Professor of Constitutional Law at the
University Center of Brasília.
BRAZIL
INTRODUCTION
Developments in Brazilian Constitutional
Law in the year 2016 were shaped by
deepening economic, political, and social
turmoil, and by the repercussions of investigations
into widespread corruption implicating
high-profile political actors and leading
companies.
In politics, we went through a traumatic
impeachment trial against President Rousseff;
the speaker of the Lower House was
removed from office and later arrested on
corruption charges; and the speaker of the
Senate has been indicted on charges of embezzlement
and removed from the presidential
line of succession. Hundreds of political
figures from diverse political parties are currently
under investigation for graft, money
laundering, and other crimes, mostly within
“Car Wash Operation”.
In the economic field, Brazil has been facing
a severe recession, with a shrinking GDP, rising
unemployment, and the hemorrhaging of
public finances. The fiscal crisis has had a
major impact on the member states’ economies,
many of which have been struggling
to meet their payrolls and maintain essential
public services. In the social realm, the widespread
popular discontent with and cynicism
toward the political class, coupled with the
fear of impending setbacks to the protection
of social rights, gave rise to people’s protests
and to the “Occupy Schools” movement led
by students nationwide.
It would be naive to assume that the storm
would not hit the Supreme Court. If, in Brazil,
there was already a tendency toward the
judicialization of politics, in times of crisis
this inclination has become even more clear.
Throughout the year, the Court was called
upon to intervene in several core political,
economic, and social controversies. Taking
the position as arbiter of national disputes,
it was nonetheless thrust into the heart of the
crisis.
THE CONSTITUTION AND
THE COURT
The Brazilian Supreme Federal Court (STF),
the apex court of the country’s judiciary,
comprises 11 justices, appointed by the President
of the Republic and confirmed by the
absolute majority of the Federal Senate. The
justices have life tenure and are subject to
mandatory retirement at age 75.
The STF has primary responsibility for safeguarding
the Constitution. Brazil’s 1988
Constitution adopts a hybrid or mixed system
of judicial review, which combines aspects
of both the American and European models.
From America, we derived a concrete and
diffuse form of review: every judge or court
has the authority to adjudicate on claims
of constitutional violation in a case. The
constitutional issues raised in the various
courts can ultimately be brought before the
STF through “extraordinary appeals” (RE),
whereby the Court examines if the appealed
decision violates the Constitution. Extraordi-
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