Constitution of the Federative Republic of Brazil: October 5, 1988 (as Amended to September 15, 2015) (Brazil [br])
We the representatives of the Brazilian People, convened the National Constituent Assembly, to institute a democratic state destined to ensure the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, founded on social harmony and committed, in the domestic and international orders, to the peaceful solution of disputes, promulgate, under the protection of God, the following CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL.
Title I Fundamental Principles
The Federative Republic of Brazil, formed by the indissoluble union of States and Counties (municípios)1, as well as the Federal District, is a legal democratic State founded upon:
III— human dignity;
IV— social values of work and free enterprise;
V— political pluralism.
The branches of the Union are the Legislative, the Executive and the Judiciary, which are independent and harmonious with each other.
The fundamental objectives of the Federative Republic of Brazil are:
I— to build a free, just and unified society;
II— to guarantee national development;
III— to eradicate poverty and substandard living conditions and to reduce social and regional inequalities;
IV— to promote the well-being of all, without prejudice as to origin, race, sex, color, age and any other forms of discrimination.
The international relations of the Federative Republic of Brazil are governed by the following principles:
I— national independence;
II— prevalence of human rights;
III— self-determination of peoples;
V— equality among States;
VI— defense of peace;
VII— peaceful solution of conflicts;
VIII— repudiation of terrorism and racism;
IX— cooperation among people for the progress of humanity;
X— concession of political asylum.
Title II Fundamental Rights and Guarantees
Chapter I Individual and Collective Rights and Duties
Everyone is equal before the law, with no distinction whatsoever, guaranteeing to Brazilians and foreigners residing in the Country the inviolability of the rights to life, liberty, equality, security and property, on the following terms:
I— men and women have equal rights and duties under the terms of this Constitution;
II— no one shall be compelled to do or refrain from doing something except by force of law;
III— no one shall be submitted to torture or to inhuman or degrading treatment;
IV— manifestation of thought is free, but anonymity is forbidden;
V— the right of reply is assured, in proportion to the offense, as well as compensation for pecuniary or moral damages2 or damages to reputation;
VI— freedom of conscience and belief is inviolable, assuring free exercise of religious beliefs and guaranteeing, as set forth in law, protection of places of worship and their rites;
VII— providing religious assistance at civilian and military establishments for collective confinement is assured, as provided by law;
VIII— no one shall be deprived of any rights because of religious beliefs or philosophical or political convictions, unless invoked in order to be exempted from a legal obligation imposed upon all by one refusing to perform an alternative service established by law;
IX— expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license;
X— personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof;
XI— the home is the individual’s inviolable asylum, and no one may enter it without the dweller’s consent, except in cases of flagrante delicto, disaster or to render help, or, during the day, with a court order;
XII— secrecy of correspondence and of telegraphic, data and telephonic communications is inviolable, except, in the latter case, by court order, in the situations and manner prescribed by law for purposes of criminal investigation or the fact-finding phase of a criminal prosecution;3
XIII— exercise of any job, trade or profession is free, observing the professional qualifications that the law establishes;
XIV— access to information is assured to everyone, protecting the confidentiality of sources when necessary for professional activity;
XV— movement within the national territory is free in peacetime, and any person may, as provided by law, enter, remain or leave with his or her assets;
XVI— all persons may hold peaceful meetings, without weapons, in places open to the public, without need for authorization, so long as they do not interfere with another meeting previously called for the same place, subject only to prior notice to the proper authority;
XVII— there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;
XVIII— creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations;
XIX— associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be final and unappealable decision;
X— no one can be compelled to join an association or to remain in one;
XXI— when expressly authorized, associations have standing to represent their members judicially and extrajudicially;
XXII— the right of property is guaranteed;
XXIII— property shall comply with its social function;
XXIV— the law shall establish procedures for expropriation for public necessity or public use, or for social interest, upon just and prior compensation in cash, with the exception of cases provided in this Constitution;4
XXV— in the event of imminent public danger, the proper authority may use private property, assuring the owner subsequent compensation in case of damage;
XXVI— small rural property, as defined by law, whenever worked by a family, shall not be subject to attachment for payment of debts stemming from its productive activities, and the law shall provide for ways to finance its development;
XXVII— authors own the exclusive rights to use, publish or reproduce their own works, and such rights may be transmitted to their heirs for a period determined by law;
XXVIII— the following are assured, as provided by law:
a) protection of individual participation in collective works and reproduction of human voices and images, including in sports activities;
b) the right of creators, performers and their respective syndicates5 and associations to monitor the economic utilization of works that they create or in which they participate;
XXIX— the law shall assure creators of industrial inventions a temporary privilege for their use, as well as the protection of industrial creations, ownership of trademarks, company names and other distinctive signs, taking into account social interests and the technological and economic development of the Country;6
XXX— the right of inheritance is guaranteed;
XXXI— inheritance of foreigners’ assets located in the Country shall be governed by Brazilian law, for the benefit of the Brazilian spouse or children, whenever the personal law of the deceased is not more favorable to them;
XXXII— the State shall provide for consumer protection, in accordance with the law;7
XXXIII— all persons have the right to receive from public agencies information in their private interest or of collective or general interest; such information shall be furnished within the period established by law, under penalty of liability, except for information whose secrecy is essential to the security of society and of the State;8
XXXIV— all persons are guaranteed, without payment of fees:
a) the right to petition public authorities in defense of rights or against illegality or abuse of power;
b) obtaining certificates from government offices for defense of rights and clarification of situations of personal interest.
XXXV— the law shall not exclude any injury or threat to a right from review by the Judiciary;
XXXVI— no law may impair a vested right, a perfected juristic act or res judicata;
XXXVII— there shall be no exceptional courts or tribunals;
XXXVIII— the institution of the jury is recognized, with the organization given to it by law,9 assuring;
a) full defense;
b) secret voting;
c) sovereignty of verdicts;
d) jurisdiction to judge willful crimes against life.
XXXIX— there are no crimes unless defined in prior law, nor are there any penalties unless previously imposed by law;
XL— criminal law shall not be retroactive, except to benefit the defendant;
XLI— the law shall punish any discrimination attacking fundamental rights and liberties;
XLII— the practice of racism is a non-bailable crime with no statute of limitations and is punishable by imprisonment, as provided by law;10
XLIII— the law shall regard as crimes not subject to bail, clemency or amnesty, the practice of torture, illicit trafficking in narcotics and similar drugs, terrorism, and those crimes defined as heinous; those giving the commands, those executing these commands, and those who, although able to avoid the crimes, fail to do so are liable for these crimes;
XLIV— actions of civilian or military armed groups against the constitutional order and the Democratic State are non-bailable crimes for which the statute of limitations never runs;
XLV— no punishment shall extend beyond the person convicted, but liability for damages and the decreeing of loss of assets may, as provided by law, extend to successors and be enforced against them up to the limit of the value of the assets transferred;
XLVI— the law shall regulate individualization of punishment and shall adopt, inter alia, the following:
a) deprivation or restriction of liberty;
b) loss of property;
d) alternative social service;
e) suspension or deprivation of rights.
XLVII— there shall be no punishments:
a) of death, except in case of declared war, in the terms of art. 84, XIX;
b) of perpetual character;
c) of forced labor;
d) of banishment;
e) that are cruel.
XLVIII— sentences shall be served in separate establishments, according to the nature of the offense, and age and sex of the convict;
XLIX— prisoners are assured respect for their physical and moral integrity;
L— female prisoners shall be assured conditions that allow them to remain with their children during the nursing period;
LI— no Brazilian shall be extradited, except for a naturalized Brazilian for a common crime committed prior to naturalization, or proven involvement in unlawful traffic in narcotics and similar drugs, as provided by law;
LII— no foreigner shall be extradited for a political or ideological offense;
LIII— no one shall be tried or sentenced other than by a proper authority;
LIV— no one shall be deprived of liberty or property without due process of law;
LV— litigants in judicial or administrative proceedings and defendants in general are assured an adversary system and a full defense, with the measures and recourses inherent therein;
LVI— evidence obtained through unlawful means is inadmissible in proceedings;
LVII— no one shall be considered guilty until his criminal conviction has become final and nonappealable;
LVIII— a civilly identified person shall not be submitted to criminal identification, except in cases provided by law;11
LIX— private prosecution for crimes subject to public prosecution shall be permitted if a public prosecution is not brought within the period established by law;
LX— the law may restrict publicity of procedural acts only if required to defend privacy or social interest;
LXI— no one shall be arrested unless in flagrante delicto or by written and substantiated order of a competent judicial authority, except for a military offense or a specific military crime, as defined by law;
LXII— the arrest of any person and the place where he can be found shall be communicated immediately to the proper judge and to the arrested person’s family or to a person designated by him;
LXIII— one under arrest shall be informed of his rights, including the right to remain silent, and shall be assured assistance of his family and a lawyer;
LXIV— one under arrest has the right to identification of those responsible for his arrest or his interrogation by police;
LXV— judicial authorities shall direct immediate release of those illegally arrested;
LXVI— no one shall be taken to prison or held therein when the law permits provisional liberty, with or without bond;
LXVII— there shall be no civil imprisonment for debt, except for a person who voluntarily and inexcusably defaults on a support obligation and for an unfaithful depository;
LXVIII— habeas corpus shall be granted whenever a person suffers or is threatened with suffering violence or coercion in his freedom of movement through illegality or abuse of power;12
LXIX— a writ of security (mandado de segurança)13 shall be issued to protect a clear and certain right not protected by habeas corpus or habeas data,14 when the party responsible for the illegality or abuse of power is a public authority or an agent of a legal entity performing governmental duties;
LXX— a collective writ of security may be brought by:
a) a political party represented in the National Congress;
b) a union, professional organization or association legally organized and operative for at least one year, to defend the interests of its members or associates;
LXXI— a mandate of injunction (mandado de injunção)15 shall be issued whenever the absence a regulatory provision makes it infeasible to exercise constitutional rights and liberties and the prerogatives inherent in nationality, sovereignty and citizenship;
LXXII— habeas data shall be granted:
a) to assure knowledge of personal information about the petitioner contained in records or data banks of government agencies or entities of a public character;
b) to correct data whenever the petitioner prefers not to do so through confidential judicial or administrative proceedings;
LXXIII— any citizen has standing to bring a popular action16 to annul an act injurious to the public patrimony or to the patrimony of an entity in which the State participates, to administrative morality, to the environment and to historic and cultural patrimony; except in a case of proven bad faith, the plaintiff is exempt from court costs and from the burden of paying the prevailing party’s attorneys’ fees and costs;
LXXIV— the State shall provide full and gratuitous legal assistance to anyone who proves that he has insufficient funds;
LXXV— the State shall compensate anyone convicted by judicial error, as well any person who remains imprisoned for a period longer than that determined by his sentence;
LXXVI— the following shall be free of charge for persons recognized as poor, as provided by law:
a) civil birth certificate;
b) death certificate;
LXXVII— habeas corpus and habeas data proceedings and, as provided by law, acts necessary to the exercise of citizenship, are free of charge.17
LXXVIII— everyone is assured that judicial and administrative proceedings will end within a reasonable time and the means to guarantee that they will be handled speedily.18
§ 2°. The rights and guarantees established in this Constitution do not exclude others derived from the regime and principles adopted by it, or from international treaties to which the Federative Republic of Brazil is a party.
§ 3º. International treaties and conventions on human rights approved by both houses of the National Congress, in two different voting sessions, by three-fifths votes of their respective members, shall be equivalent to Constitutional Amendments.19
§ 4º. Brazil submits itself to the jurisdiction of the International Criminal Tribunal to whose creation it has adhered.20
Chapter II Social Rights
Education, health, nutrition,21 labor, housing,22 transport,23 leisure, security, social security, protection of motherhood and childhood and assistance to the destitute, are social rights, as set forth in this Constitution.
In addition to any others designed to improve their social condition, the following are rights of urban and rural workers:
I— employment protected against arbitrary dismissal or dismissal without cause, as provided for by complementary law24 that shall establish severance pay, among other rights;
II— unemployment insurance, in the event of involuntary unemployment;
III— Guarantee Fund for Length of Service;25
IV— a national uniform minimum wage, fixed by law, capable of meeting a worker’s basic living needs and those of his family, for housing, nourishment, education, health, leisure, clothing, hygiene, transportation and social security, with periodic adjustments to maintain its purchasing power, prohibiting linkage to it as index for any purpose;
V— a salary floor in proportion to the extent and complexity of the work;26
VI— irreducibility of salaries or wages, except when provided for in a collective agreement or accord;
VII— for those receiving variable compensation, a guaranty that the salary or wage will never fall below the minimum wage;
VIII— a thirteenth-month salary27 based on full pay or pension amount;
IX— higher remuneration for nighttime work than for daytime work;
X— wage protection, as provided by law, with intentional retention constituting a crime;
XI— participation in profits or results, independent of remuneration, and, exceptionally, participation in management of the company, as defined by law;
XII— family allowance for dependents of low income workers, as provided by law;28
XIII— normal working hours not to exceed eight hours per day and forty-four hours per week, permitting a trade-off of work hours and reduction in the work day through an accord or a collective bargaining agreement;
XIV— a workday of six hours for work performed in continuous shifts, unless otherwise established by collective bargaining;
XV— paid weekly rest, preferably on Sundays;
XVI— a pay scale for overtime at least fifty percent higher than that for normal work;
XVII— an annual paid vacation, at a rate at least one-third higher than normal pay;
XVIII— maternity leave without loss of job or wages for a period of one hundred-twenty days;
XIX— paternity leave, as provided by law;
XX— protection of the job market for women through specific incentives, as provided by law;
XXI— advance notice of dismissal proportional to length of service, with a minimum of thirty days, as provided by law;
XXII— reduction of risks inherent in the job by means of health, hygiene and safety rules;
XXIII— additional remuneration for strenuous, unhealthy or dangerous work, as provided by law;
XXIV— retirement pension;
XXV— free assistance for children and dependents from birth to 5 (five)29 years of age in day-care centers and pre-schools;
XXVI— recognition of collective bargaining accords and agreements;
XXVII— protection because of automation, as provided by law;
XXVIII— occupational accident insurance, paid for by the employer, without excluding the employer’s liability for indemnity in the event of malice or fault;
XXIX— a cause of action for amounts due from employment relationships, with a statute of limitations of five years for urban and rural workers, up to a limit of two years after termination of the labor contract;
XXX— prohibition of any difference in pay in performance of duties and in hiring criteria by reason of sex, age, color or marital status;
XXXI— prohibition of any discrimination with respect to pay and hiring criteria for handicapped workers;
XXXII— prohibition of any distinction among manual, technical and intellectual work or among the respective professionals;
XXXIII— prohibition of nighttime, dangerous or unhealthy work for those under eighteen years of age, and of any work for those under the age of sixteen,31 except as an apprentice starting at age fourteen;
XXXIV— equal rights for workers with a permanent employment relationship and for freelance workers.
Sole Paragraph. The category of domestic workers is assured the rights set out in subparagraphs IV, VI, VII, VIII, X, XIII, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIV, XXVI, XXX, XXXI and XXXIII, and taking into consideration the conditions established in law and observing the simplification of the performance of the principal and accessory tax obligations, the provisions in the subparagraphs I, II, III, IX, XII, XXV and XXVIII, as well as integration into the social security system.32
Persons are free to form professional or syndical associations, observing the following:
I— the law may not require State authorization for organization of a syndicate, with the exception of registration with the proper agency, prohibiting the Government from interfering and intervening in syndical organization;
II— creation of more than one syndical organization, of any level, representing a professional or economic category, is forbidden in the same territorial base, which shall be defined by the interested workers or employers; a base may not be less than the area of one County.
III— the syndicate is responsible for defending the collective or individual rights and interests of its category, including judicial or administrative disputes;
IV— the general assembly shall fix dues, which, in the case of a professional category, shall be withheld from the payroll, for the funding of the confederative system of respective syndical representation, independent of the contribution provided for by law;
V— no one shall be required to join or to remain a member of a syndicate;
VI— syndicates must participate in collective labor bargaining negotiations;
VII— retired members shall be entitled to vote and be voted on in syndical organizations;
VIII— an employee who is a syndicate member may not be dismissed from the moment he registers as a candidate for a leadership or representative position in the syndicate; if elected, even as an alternate, he may not be dismissed until one year after termination of his term of office, unless he commits a serious fault, as provided by law.
The right to strike is guaranteed; it is up to the workers to decide when to exercise it and upon the interests to be defended thereby.
§ 1°. The law shall define which services or activities are essential and shall provide for meeting the community’s non-postponable needs.
Participation of workers and employers is assured in the collegiate bodies of governmental agencies in which their professional or social security interests are subjects of discussion and deliberation.
Chapter III Nationality
The following are Brazilians:
I— by birth:
a) those born in the Federative Republic of Brazil, even though of foreign parents, provided that they are not in the service of their country;
b) those born abroad of a Brazilian father or mother, so long as either is in the service of the Federative Republic of Brazil;
c) those born abroad of a Brazilian father or mother, so long as they are registered at a proper Brazilian governmental office, or come to reside in the Federative Republic of Brazil and opt for Brazilian nationality at any time after reaching the age of majority;33
II— by naturalization:
a) those who, as set forth by law, acquire Brazilian nationality; for persons whose country of origin is Portuguese-speaking, only one uninterrupted year of residence and good moral character are required;
b) foreigners of any nationality, resident in the Federative Republic of Brazil for more than fifteen34 uninterrupted years and without any criminal conviction, provided they request Brazilian nationality.
§ 1°. Rights inherent to Brazilians shall be attributed to Portuguese permanently resident in the Country if Brazilians are afforded reciprocal treatment, except in cases provided for in this Constitution.35
§ 2°. The law may not establish any distinction between native born and naturalized Brazilians, except in cases provided for in this Constitution.
§ 3°. The following positions are restricted to native born Brazilians:
I— President and Vice-President of the Republic;
II— President of the Chamber of Deputies;
III— President of the Federal Senate;
IV— Minister of the Supreme Federal Tribunal;
V— the diplomatic career;
VI— officers of the Armed Forces.
VII— the Minister of Defense.36
§ 4°. Loss of nationality shall be declared for a Brazilian:
I— whose naturalization has been cancelled by judicial decision because of activity harmful to the national interest;
II— who acquires another nationality, except in the cases:
a) of recognition of original nationality by foreign law;
b) of a foreign law’s imposition of naturalization upon a Brazilian residing in a foreign country as a condition for remaining in its territory or for exercise of civil rights.37
Chapter IV Political Rights
Popular sovereignty shall be exercised by universal suffrage, and by direct and secret vote, with equal value for all, and, as provided by law, by:
III— popular initiative.38
§ 1°. Voter registration and voting are:
I— compulsory for persons over eighteen years of age;
II— optional for:
a) the illiterate;
b) those over seventy years of age;
c) those over sixteen and under eighteen years of age.
§ 2°. Foreigners may not register to vote, nor may they be conscripts during their period of compulsory military service.
§ 3°. Conditions for eligibility, according to the law, are the following:
I— Brazilian nationality;
II— full exercise of political rights
III— voter registration;
IV— electoral domicile in the district;
V— party affiliation;39
VI— minimum age of:
a) thirty-five years for President and Vice-President of the Republic and Senator;
b) thirty years for Governor and Lieutenant Governor of a State and the Federal District;
c) twenty-one years for Federal, State or District Representative, Prefect,40 Vice-Prefect and justice of the peace;
d) eighteen years for alderman (vereador).
§ 5°. The President of the Republic, Governors of the States and the Federal District, Prefects and those that have succeeded or replaced them in the course of their mandates, may be reelected for a single subsequent term.41
§ 6°. In order to run for other offices, the President of the Republic, Governors of the State and Federal District and Prefects must resign from their respective offices at least six months prior to the election.
§ 7°. Spouses and relatives by blood or marriage up to the second degree or by adoption, of the President of the Republic, Governor of a State, Territory, or the Federal District, or a Prefect, or those replacing them during the six months preceding the election, are ineligible in the jurisdictional territory of the incumbent, unless they already hold elective office and are candidates for re-election.
§ 8°. A member of the armed forces who can register to vote is eligible under the following conditions:
I— if he has served for less than ten years, he shall be on leave from military activities;
II— if he has served for more than ten years, he shall be discharged from military duties by his superiors and, if elected, shall be automatically retired upon taking office.
§ 9°. A complementary law shall establish other cases of ineligibility and periods for which it shall remain in force, in order to protect administrative probity, morality for the exercise of the mandate (considering the past life of the candidate),42 and the normality and legitimacy of elections from the influence of economic power or abuse from holding an office, position or job in the direct or indirect Administration.43
§ 10°. Elective mandates may be challenged in the Electoral Courts within a period of fifteen days after certification of election, substantiating the suit with evidence of abuse of economic power, corruption or fraud.
Deprivation of political rights is forbidden; loss or suspension of such rights may occur only in cases of:
I— cancellation of naturalization by a final non-appealable judgment;
II— absolute civil incapacity;
III— a final non-appealable criminal conviction, so long as the effects of remain in force;
IV— refusal to comply with an obligation imposed upon everyone or to perform alternative service, in accordance with art. 5, VIII;
V— administrative impropriety, in terms of art. 37, § 4°.
A law altering the electoral process shall enter into force on its publication date and shall not apply to elections that occur within one year from the date it enters into force.44
Chapter V Political Parties
Creation, merger, incorporation, and dissolution of political parties are free, with due regard for national sovereignty, the democratic regime, multiplicity of political parties and fundamental human rights, observing the following precepts:
I— national character;
II— prohibition of receipt of financial assistance from foreign entities or governments or subordination to them;
III— rendering of accounts to the Electoral Courts;
IV— legislative functioning in accordance with the law.
§ 1°. Political parties are assured autonomy in defining their internal structure, organization and operation and in adopting criteria for choosing their regime of electoral affiliation, without requiring linkage among candidates in the national, state, district or county spheres. Party by-laws shall establish rules for party discipline and loyalty.45
§ 2°. After they have acquired legal capacity, as provided for in civil law, political parties shall register their by-laws with the Superior Electoral Tribunal.
§ 3°. Political parties have a right to resources from party funds and to free radio and television time, as provided by law.
Title III Organization of the State
Chapter I Political-Administrative Organization
The political and administrative organization of the Federative Republic of Brazil includes the Union, States, Federal District, and Counties, all autonomous, as provided for in this Constitution.
§ 2°. Federal Territories are part of the Union, and their creation, transformation into States, or re-integration into their State of origin shall be regulated by complementary law.
§ 3°. States may merge into each other, subdivide, or split in order to be annexed to others, or form new States or Federal Territories, with the approval of the population directly interested through a plebiscite, and the approval of the National Congress through a complementary law.
§ 4°. The creation, incorporation, merger and dismantling of Counties shall be done by state law, within the period determined by complementary federal law, and shall depend upon prior consultation, via plebiscite, with populations of the Counties involved, after divulging the County Feasibility Studies, presented and publicized, as provided by law.46
The Union, States, Federal District and Counties are forbidden to:
I— establish religions or churches, subsidize them, hinder their functioning, or maintain dependent relations or alliances with them or their representatives, with the exception of collaboration in the public interest, as provided by law;
II— refuse to honor public documents;
III— create distinctions or preferences among Brazilians.
Chapter II The Union
The following constitute property of the Union:
I— property presently belonging to it, as well as that which may be granted to it;
II— unoccupied lands essential to defense of frontiers, military fortifications and constructions, federal communication and environmental preservation routes, as defined by law;
III— lakes, rivers and any watercourses on lands that it owns; interstate waters; waters that serve as borders with other countries; waters that extend into or come from a foreign territory; as well as the bordering lands and river beaches;
IV— islands in rivers and in lakes in zones bordering other countries, ocean beaches, islands in the ocean and offshore, excluding from the latter areas containing the County seats, with the exception of those areas affected by public service and the federal environmental unit, and the areas referred to in art. 26, II;47
V— natural resources of the continental shelf and the exclusive economic zone;
VI— territorial seas;
VII— tidal lands and those added by accretion;
VIII— potential hydraulic energy sites;
IX— mineral resources, including those in the subsoil;
X— natural subterranean cavities and archeological and pre-historic sites;
XI— lands traditionally occupied by Indians.
§ 1°. The States, Federal District and Counties, as well as agencies of direct administration of the Union, are assured, as provided by law, participation in the results of exploitation of petroleum or natural gas, hydraulic energy resources, and other mineral resources in their respective territories, continental shelf, territorial sea or exclusive economic zone, or financial compensation for such exploitation.
The Union shall have the power to:
I— maintain relations with foreign States and participate in international organizations;
II— declare war and make peace;
III— assure national defense;
IV— permit foreign forces transit through national territory or to remain therein temporarily, in cases provided for by complementary law;
V— decree a state of siege, state of defense and federal intervention;
VI— authorize and supervise the production and commerce in war materials;
VII— issue currency;
VIII— administer the Country’s foreign exchange reserves and supervise financial transactions, especially credit, exchange, and capitalization, as well as insurance and private pension plans;
IX— prepare and execute national and regional plans for ordering the territory and for economic and social development;
X— maintain the postal service and national air mail;
XI— operate, either directly or through authorization, concession, or permit, telecommunication services, as set forth by a law that shall provide for the organization of the services, creation of a regulatory agency and other institutional aspects;48
XII— operate, either directly or through authorization, concession or permit:
a) services of broadcasting sound and images with sound;49
b) services and installations of electric energy and utilization of hydroelectric power, in cooperation with the States in which the potential hydroelectric sites are located;
c) air and aerospace navigation and airport infrastructure;
d) railway and waterway transportation services among Brazilian ports and national frontiers, or that cross boundaries of a state or territory;
e) passenger services for interstate and international highway transportation;
f) sea, river and lake ports;
XIV— organize and maintain the civil police, military police and military fire brigades of the Federal District, as well as provide financial assistance to the Federal District for performance of public services, by means of its own fund;52
XV— organize and maintain official national statistical, geographical, geological and mapping services;
XVI— classify, for purposes of viewer discretion, public amusements and radio and television programs;
XVII— grant amnesty;
XVIII— plan and promote permanent defenses against public disasters, especially droughts and floods;
XIX— establish a national system for management of water resources and define criteria for granting rights for their use;53
XX— establish directives for urban development, including housing, basic sanitation and urban transportation;
XXI— establish principles and directives for the national transportation system;
XXII— operate maritime, airport54 and border police services;
XXIII— operate nuclear services and installations of any nature and exercise governmental monopolies over research, mining, enrichment, reprocessing, industrialization, and commerce in nuclear ores and their by-products, in accordance with the following principles and conditions:
a) all nuclear activity within the national territory shall be allowed for peaceful purposes and shall be subject to approval by the National Congress;
b) marketing and utilization of radioisotopes for research and medical, agricultural and industrial use are authorized under a permit regime;
c) production, marketing and utilization of radioisotopes with a half-life equal to or less than two hours are authorized under a permit regime;
d) civil liability for nuclear damages does not depend upon existence of fault;55
XXIV— organize, maintain and perform inspections of working conditions;
XXV— establish the areas and conditions for conduct of prospecting and placer mining in the form of associations.
The Union has exclusive power to legislate with respect to:
I— civil, commercial, penal, procedural, electoral, agrarian, maritime, aeronautical, space and labor law;
III— civilian and military requisitioning, in the event of imminent danger and in wartime;
IV— waters, energy, informatics, telecommunications and radio broadcasting;
V— the postal service;
VI— the monetary system, measuring systems and certifications and guarantees of metals;
VII— policies for credit, foreign exchange, insurance and transfer of securities;
VIII— foreign and interstate commerce;
IX— directives of national transportation policy;
X— regime of the ports and lake, river, ocean, air and aerospace navigation;
XI— transit and transportation;
XII— mineral deposits, mines, mineral resources and metallurgy;
XIII— nationality, citizenship and naturalization;
XIV— indigenous populations;
XV— emigration, immigration, entry, extradition and expulsion of foreigners;
XVI— organization of the national employment system and conditions for professional practice;
XVII— organization of the Judiciary, the Public Ministry of the Federal District and of the Territories, and the Public Defender’s Office of the Territories, as well as their administrative organization;56
XVIII— national systems of statistics, mapping and geology;
XIX— systems of savings, as well as obtaining and guaranteeing popular savings;
XX— systems of consórcios57 and lotteries;
XXI— general rules of organization, personnel, war materials, guarantees, enlistment and mobilization of the military police and military fire brigades;
XXII— jurisdiction of the federal police and the federal highway and railway police;
XXIII— social security;
XXIV— directives and bases for national education;
XXV— public registries;
XXVI— nuclear activities of any nature;
XXVII— general rules for all types of bidding and contracting for direct public administration, autarchies58 and foundations of the Union, States, Federal District and Counties, obeying the provision of art. 37, XXI, and for public companies and mixed-capital companies, as provided for in art. 173, § 1°, III;59
XXVIII— territorial defense, aerospace defense, maritime defense, civil defense and national mobilization;
XXIX— commercial advertising.
The Union, States, Federal District and Counties in common shall have the power :
I— to ensure that the Constitution, the laws and the democratic institutions are observed and that public patrimony is preserved;
II— to safeguard public health, public assistance, and the protection and guarantee of handicapped persons;
III— to protect documents, works, and other assets of historic, artistic, and cultural value, monuments, remarkable natural landscapes and archeological sites;
IV— to prevent the loss, destruction, or changing of the characteristics of works of art and other goods of historic, artistic or cultural value;
V— to furnish means of access to culture, education, science, technology, research, and innovation;60
VI— to protect the environment and to combat pollution in any of its forms;
VII— to preserve the forests, fauna and flora;
VIII— to promote agricultural and livestock production and organize the food supply;
IX— to promote programs for construction of housing and improvement of the conditions of housing and basic sanitation;
X— to combat the causes of poverty and the factors of marginalization, promoting the social integration of the underprivileged sectors;
XI— to register, monitor and supervise concessions of rights to research and exploit water and mineral resources within their territories;
XII— to establish and implement an educational policy for traffic safety.
Sole Paragraph. Complementary laws61 shall establish rules for cooperation among the Union, States, Federal District and Counties, aimed at balanced development and well-being on a nation-wide basis.
The Union, States and Federal District shall have concurrent power to legislate on:
I— tax, financial, penitentiary, economic and urban planning law;
II— the budget;
III— commercial registries;
IV— costs of forensic services;
V— production and consumption;
VI— forests, hunting, fishing, fauna, preservation of nature, defense of the soil and natural resources, protection of the environment and pollution control;
VII— protection of the historic, cultural, artistic, touristic, and scenic patrimony;
VIII— liability for damages to the environment, consumers, property and rights of artistic, aesthetic, historic, touristic, and scenic value;
IX— education, culture, teaching, sports, science, technology, research, development, and innovation;62
X— creation, operation and procedures of small claims courts;
XI— court procedures;
XII— social security and protection and defense of health;
XIII— legal assistance and public defense;
XIV— protection and social integration of handicapped persons;
XV— protection of childhood and youth;
XVI— organization, guarantees, rights and duties of the civil police.
§ 1°. Within the scope of concurrent legislation, the Union’s powers shall be limited to establishing general rules.
§ 2°. The power of the Union to legislate with respect to general rules does not preclude supplementary powers of the States.
§ 3°. If there is no federal law with respect to general rules, the States shall exercise full legislative powers to provide for their own peculiarities.
Chapter III The Federated States
The States are organized and governed by the Constitutions and laws that they may adopt, observing the principles of this Constitution.
§ 2°. It is incumbent upon the States to operate, directly or through concessions, local services of piped gas, as provided by law. Issuance of a provisional measure for its regulation is prohibited.63
The property of the States includes:
I— surface or underground waters, whether flowing, emerging or in reservoirs, with the exception in the latter case of those resulting from works carried out by the Union, as provided by law;
II— ocean and coastal island areas that are under their dominion, excluding those under the dominion of the Union, Counties or third parties;
III— river and lake islands that do not belong to the Union;
IV— vacant government lands not included among those belonging to the Union.
The number of Representatives in the State Legislative Assembly shall be three times the representation of the State in the Chamber of Deputies and, upon reaching thirty-six, the number shall be increased by as many Representatives as the number of Federal Deputies exceeding twelve.
§ 1°. The term of office of State Representatives shall be four years, and the provisions of this Constitution regarding the electoral system, inviolability, immunities, remuneration, loss of mandate, leaves of absence, impediments and enlisting in the Armed Forces shall apply to them.
§ 2°. The fixed compensation (subsídio)64 of the State Representatives shall be set by law at the initiative of the Legislative Assembly, at a maximum of seventy-five percent of that established, in specie, for Federal Deputies, observing what has been provided for in articles 39, § 4°, 57, § 7°, 150, II, 153, III, and 153, § 2°, I.65
§ 3°. The Legislative Assemblies have the power to determine their internal rules, police and administrative services of their secretariat, and to fill the respective offices.
The election of the State Governor and Lieutenant Governor, for a term of office of four years, shall be held on the first Sunday of October for the first round, and, if there should be a second round, on the last Sunday of October of the year before the end of their predecessors’ mandates, and they shall take office on January first of the subsequent year, observing as well the provisions of art. 77.66
§ 1°. A Governor who assumes another office or position of direct or indirect public administration shall lose his office, except for offices held by virtue of a public competitive examination and observing the provisions of art. 38, I, IV and V.
Chapter IV The Counties
Counties shall be governed by an organic law, voted in two rounds, with a minimum interval of ten days between each, and approved by two-thirds of the members of the county legislature, which shall promulgate it, observing the principles established in this Constitution, the respective State Constitution and the following precepts:
I— election of the Prefect, Vice-Prefect and Aldermen, for a term of office of four years, through direct and simultaneous elections held throughout the entire Country;
II— election of the Prefect and the Vice-Prefect shall be held on the first Sunday of October of the year prior to the termination of their predecessors’ mandates, applying the provisions of art. 77 to Counties with more than two hundred thousand voters;68
III— investiture of the Prefect and of the Vice-Prefect on January 1st of the year subsequent to the election;
IV— in the composition of County Legislatures the following maximum limits shall be observed:
a) 9 (nine) Aldermen in Counties with up to 15,000 (fifteen thousand) inhabitants;
b) 11 (eleven) Aldermen in Counties with more than 15,000 (fifteen thousand) and up to 30,000 (thirty thousand) inhabitants;
c) 13 (thirteen) Aldermen in Counties with more than 30,000 (thirty thousand) and up to 50,000 (fifty thousand) inhabitants;
d) 15 (fifteen) Aldermen in Counties with more than 50,000 (fifty thousand) and up to 80,000 (eighty thousand) inhabitants;
e) 17 (seventeen) Aldermen in Counties with more than 80,000 (eighty thousand) and up to 120,000 (one hundred twenty thousand) inhabitants;
f) 19 (nineteen) Aldermen in Counties with more than 120,000 (one hundred and twenty thousand) and up to 160,000 (one hundred sixty thousand) inhabitants;
g) 21 (twenty) Aldermen in Counties with more than 160,000 (one hundred and sixty thousand) and up to 300,000 (three hundred thousand) inhabitants;
h) 23 (twenty-three) Aldermen in Counties with more than 300,000 (three hundred thousand) and up to 450,000 (four hundred fifty thousand) inhabitants;
i) 25 (twenty-five) Aldermen in Counties with more than 450,000 (four hundred and fifty thousand) and up to 600,000 (six hundred thousand) inhabitants;
j) 27 (twenty-seven) Aldermen in Counties with more than 600,000 (six hundred thousand) and up to 750,000 (seven hundred fifty thousand) inhabitants;
k) 29 (twenty-nine) Aldermen in Counties with more than 750,000 (seven hundred fifty thousand) and up to 900,000 (nine hundred thousand) inhabitants;
l) 31 (thirty-one) Aldermen in Counties with more than 900,000 (nine hundred thousand) and up to 1,050,000 (one million fifty thousand) inhabitants;
m) 33 (thirty-three) Aldermen in Counties with more than 1,050,000 (one million fifty thousand) and up to 1,200,000 (one million two hundred thousand) inhabitants;
n) 35 (thirty-five) Aldermen in Counties with more than 1,200,000 (one million two hundred thousand) and up to 1,350,000 (one million three hundred fifty thousand) inhabitants;
o) 37 (thirty-seven) Aldermen in Counties with more than 1,350,000 (one million three hundred fifty thousand) and up to 1,500,000 (one million five hundred thousand) inhabitants;
p) 39 (thirty-nine) Aldermen in Counties with more than 1,500,000 (one million five hundred thousand) and up to 1,800,000 (one million eight hundred thousand) inhabitants;
q) 41 (forty-nine) Aldermen in Counties with more than 1,800,000 (one million eight hundred thousand) and up to 2,400,000 (two million four hundred thousand) inhabitants;
r) 43 (forty-three) Aldermen in Counties with more than 2,400,000 (two million four hundred thousand) and up to 3,000,000 (three million) inhabitants;
s) 45 (forty-five) Aldermen in Counties with more than 3,000,000 (three million) and up to 4,000,000 (four million) inhabitants;
t) 47 (forty-seven) Aldermen in Counties with more than 4,000,000 (four million) and up to 5,000,000 (five million) inhabitants;
u) 49 (forty-nine) Aldermen in Counties with more than 5,000,000 (five million) and up to 6,000,000 (six million) inhabitants;
v) 51 (fifty-one) Aldermen in Counties with more than 6,000,000 (six million) and up to 7,000,000 (seven million) inhabitants;
w) 53 (fifty-three) Aldermen in Counties with more than 7,000,000 (seven million) and up to 8,000,000 (eight million) inhabitants;
x) 55 (fifty-five) Alderman in Counties with more than 8,000,000 (eight million) inhabitants.69
V— the fixed compensation of the Prefect, Vice-Prefect and Municipal Secretaries shall be determined by law at the initiative of the County Legislature, observing the provisions of articles 37, XI, 39, § 4°, 150, II, 153, III, and 153 § 2°, I;70
VI— the fixed compensation of Aldermen shall be determined by the respective County Council in each legislative term for the following one, observing what is provided for in this Constitution, the criteria established in the respective Organic Law and the following maximum limits:
a) in Counties up to ten thousand inhabitants, the maximum fixed compensation for Aldermen shall correspond to twenty percent of the fixed compensation for State Representatives;
b) in Counties between ten thousand and one and fifty thousand inhabitants, the maximum fixed compensation for Aldermen shall correspond to thirty percent of the fixed compensation for State Representatives;
c) in Counties of fifty thousand and one to one hundred thousand inhabitants, the maximum fixed compensation for Aldermen shall correspond to forty percent of the fixed compensation for State Representatives;
d) in Counties of one hundred thousand and one to three hundred thousand inhabitants, the maximum fixed compensation for Aldermen shall correspond to fifty percent of the fixed compensation for State Representatives;
e) in Counties of three hundred thousand and one to five hundred thousand inhabitants, the maximum fixed compensation for Aldermen shall correspond to sixty percent of the fixed compensation forState Representatives;
f) in Counties of more than five hundred thousand inhabitants, the maximum fixed compensation for Aldermen shall correspond to seventy-five percent of the fixed compensation forState Representatives.71
VII— total expenditures for remuneration of Aldermen may not exceed five percent of the revenues of the County;72
VIII— immunity of Aldermen for their opinions, words and votes in exercise of their mandate and within the boundaries of the county;
IX— prohibitions and incompatibilities, while in the office of Aldermen, similar, where applicable, to the provisions of this Constitution for members of the National Congress and of the respective State Constitution for members of the Legislative Assembly;
X— trial of the Prefect before the Tribunal of Justice;73
XI— organization of legislative and supervisory functions of the county legislature;
XII— cooperation of representative associations in municipal planning;
XIII— popular initiative on bills of specific interest to the county, city or districts, through manifestation of at least five percent of the electorate;
XIV— loss of mandate of the Prefect according to art. 28, sole paragraph.
Art. 29-A. 74
Total expenditure by a County’s Legislature, including Aldermen’s fixed compensation but excluding expenditures for inactive personnel, may not exceed the following percentages, with respect to the sum of tax receipts and transferences provided for in § 5° of art. 153 and arts. 158 and 159, effectively realized in the prior fiscal year:
I— 7% (seven percent) for Counties with a population of up to 100,000 (one hundred thousand) inhabitants;
II— 6% (six percent) for Counties with a population between 100,000 (one hundred thousand) and 300,000 (three hundred thousand) inhabitants;
III— 5% (five percent) for Counties with a population between 300,001 (three hundred thousand one) and 500,000 (five hundred thousand) inhabitants;
IV— 4.5% (four and one-half percent) for Counties with a population between 500,001 (five hundred thousand and one) and 3,000,000 (three million) inhabitants;
V— 4% (four percent) for Counties with a population between 3,000,001 (three million and one) inhabitants and 8,000,000 (eight million) inhabitants;
VI— 3.5% (three and one-half percent) for Counties with a population greater than 8,000,001 (eight million and one) inhabitants.75
§ 1°. A County Legislature shall not spend more than seventy percent of its receipts on payrolls, including expenditures for fixed compensation of its Aldermen.
§ 2°. It constitutes an impeachable offense (crime de responsabilidade)76 for the County Prefect:
I— to repass funds that exceed the limits defined in this article;
II— to not send or repass funds by the twentieth day of each month; or
III— to send less than the proportion fixed in the Budget Law.
§ 3°. It constitutes an impeachable offense for the President of the County Legislature to disrespect § 1° of this article.
The Counties have the power to:
I— legislate on matters of local interest;
II— supplement federal and state legislation where applicable;
III— institute and collect taxes within their jurisdiction, as well as to apply their revenues, without prejudice to the requirement that they render accounts and publish provisional balance sheets within the periods established by law;
IV— create, organize and eliminate districts, observing state legislation;
V— organize and perform essential public services of local interest, including collective transportation, either directly or by concession or permit;
VI— maintain programs of pre-school and elementary education [ … ];77
VII— provide health services to the population, with the technical and financial cooperation of the Union and State;
VIII— promote, where applicable, an adequate territorial system through planning and control of use, subdivision and occupation of urban land;
IX— promote protection of local historic and cultural patrimony, observing federal and state legislation.
Supervision of the County shall be performed by the County Legislature, through outside control and by the internal control systems of the County Executive, as provided by law.
§ 1°. Outside control of the County Legislature shall be performed with the assistance of the State Tribunals of Accounts or Councils or County Tribunals of Accounts, where they exist.
§ 2°. A prior opinion, issued by the proper agency, on the accounts to be rendered annually by the Prefect, shall prevail unless there is a decision of two-thirds of the members of the County Legislature.
§ 3°. Accounts of the Counties shall remain available each year to any taxpayer for sixty days for examination and evaluation, and any taxpayer may question their legitimacy, as provided by law.
Chapter V The Federal District and the Territories
Section I The Federal District
The Federal District, which may not be divided into counties, shall be governed by an organic law, voted in two rounds with a minimum interval of ten days, and approved by two-thirds of the Legislative Chamber, which shall promulgate it, observing the principles established in this Constitution.
§ 2°. Election of the Governor and the Lieutenant Governor, observing the provisions of art. 77, and the District Representatives shall coincide with that of the State Governors and Representatives, for terms of office of the same duration.
§ 3°. The provisions of art. 27 apply to the District Representatives and to the Legislative Chamber.
Section II The Territories
§ 1°. The Territories may be divided into Counties, which shall be subject to the provisions of Chapter IV of this Title, whenever applicable.
§ 2°. The accounts of a Territorial Government shall be submitted to the National Congress, with the prior opinion of the Tribunal of Accounts of the Union.
§ 3°. Federal Territories with more than one hundred thousand inhabitants shall have, in addition to a Governor appointed according to this Constitution, trial and appellate courts, members of the Public Ministry, and federal public defenders; the law shall provide for elections to the Territorial Legislature and its decision-making authority.
Chapter VI Intervention
The Union shall not intervene in the States or in the Federal District, except to:
I— maintain national integrity;
II— repel a foreign invasion or invasion of one unit of the Federation into another;
III— put an end to a serious threat to public order;
IV— guarantee the unimpeded functioning of any of the Branches of Government in the units of the Federation;
V— reorganize the finances of a unit of the Federation that:
a) suspends payment of a debt guaranteed by government instruments or securities for more than two consecutive years, except for reasons of force majeure;
b) fails to deliver to the counties the tax revenues established in this Constitution within the time periods established by law;
VI— provide for enforcement of a federal law, court orders or decisions;
VII— ensure compliance with the following constitutional principles:
a) republican form, representative system and democratic regime;
b) individual rights;
c) county autonomy;
d) rendering of accounts of direct and indirect public administration.
e) application of the minimum required from the proceeds resulting from state taxes, including those stemming from transfers, for maintenance and development of education and in public health activities and services.78
A State shall not intervene in its Counties, nor the Union in the Counties located in a Federal Territory, except when:
I— a debt guaranteed by government instruments or securities is not paid for two consecutive years, unless due to force majeure;
II— required accounts are not rendered in the manner provided by law;
III— the required minimum amount of county revenues has not been applied for maintenance and development of education and public health activities and services;79
IV— the Tribunal of Justice grants a representation action to assure observance of principles set out in the State Constitution or to provide for enforcement of a law, court order or judicial decision.
Issuance of a decree of intervention shall depend:
I— in the case of art. 34, IV, upon a request from the coerced or impeded Legislature or Executive, or on an order from the Supreme Federal Tribunal if the coercion is exerted against the Judiciary;
II— in the case of disobedience of a court order or decision, upon an order from the Supreme Federal Tribunal, Superior Tribunal of Justice, or the Superior Electoral Tribunal;
III— , in the case of art. 34, VII, and in the case of a refusal to enforce a federal law, upon the Supreme Federal Tribunal’s granting a representation action80 brought by the Procurator-General81 of the Republic;82
§ 1°. The decree of intervention, which shall specify the extent, period and conditions of enforcement and which, if applicable, shall appoint the intervenor, shall be submitted for consideration by the National Congress or the State Legislative Assembly within twenty-four hours.
§ 2°. If the National Congress or the Legislative Assembly is not in session, a special session shall be called within the same twenty-four hour period.
§ 3°. In the cases of art. 34, VI and VII, or of art. 35, IV, upon waiver of consideration by the National Congress or the Legislative Assembly, the decree shall be limited to suspending execution of the challenged act, if such measure is sufficient to restore normality.
Chapter VII Public Administration
Section I General Provisions
The direct or indirect public administration of any of the Branches of the Union, States, Federal District and Counties, shall obey the principles of legality, impersonality, morality, publicity and efficiency, as well as the following:
I— public offices, jobs and positions are accessible to Brazilians who meet the requirements established by law, as well as to foreigners, as provided by law;
II— investiture in public office or employment depends upon prior approval in public competitive examinations, or such examinations and comparison of professional credentials, in accordance with the nature and complexity of the office or job, as provided by law, except for appointment to a commission office declared by law to permit free appointment and discharge;84
III— the period of validity of a public competitive examination shall be up to two years, extendable once for a like period;
IV— during the non-extendable period set forth in the notice of the public competition, those approved in a public competitive examination or such examination and comparison of professional credentials shall be called with priority over newly approved applicants to assume a career office or position;
V— positions of confidence, exercised exclusively by civil servants occupying an effective position,85 and commission offices, to be filled by career civil servants in the cases, conditions and minimum percentages provided for by law, are intended only for assignments of management, supervision and assessment;86
VI— civil servants are guaranteed the right to free union association;
VII— the right to strike shall be exercised in the manner and within the limits defined by a specific87 law;
VIII— the law shall reserve a percentage of public offices and positions for handicapped persons and shall define the criteria for their hiring;
IX— the law shall set out the circumstances for hiring personnel for a fixed period of time in order to meet a temporary need of exceptional public interest;
X— remuneration of civil servants and the fixed compensation referred to in § 4° of art. 39 shall be set or modified only by a specific law, observing private initiative in each case, assuring annual general revision, always on the same date and without distinction with respect to indexes;88
XI— the remuneration and fixed compensation of the holders of public offices, positions and employment in the direct administration, autarchies and foundations, of the members of any Branches of the Union, States, Federal District and Counties; of the holders of an elective office and of other political agents; and the benefits, pensions or other form of remuneration, whether or not received cumulatively, including personal advantages or those of any other nature, shall not exceed the monthly fixed compensation, in specie, of the Ministers of the Federal Supreme Tribunal; applying as a limit in the Counties, the fixed compensation of the Prefect; and in the States and the Federal District, in the Executive branch, the monthly fixed compensation of the Governor; in the Legislative branch, the fixed compensation of the State and District Legislators; and in the Judicial branch, the fixed compensation of the magistrates of the Tribunal of Justice, limited to ninety and twenty-five hundreds percent of the monthly fixed compensation, in specie, of the Ministers of the Supreme Federal Tribunal, a limit also applicable to the members of the Public Ministry, Procurators and Public Defenders;89
XII— compensation for positions in the Legislative and Judicial Branches may not be higher than those paid by the Executive Branch;
XIII— linking or equalizing any kind of remuneration is prohibited for purposes of compensating public service personnel;
XIV— pecuniary raises received by a government employee shall not be computed or accumulated for the purpose of granting subsequent raises;90
XV— the fixed compensation and earnings of holders of public positions and jobs are irreducible, except for the provisions of subparagraphs XI and XIV of this article and arts. 39, § 4°, 150, II, 153, III, and 153, § 2°, I;91
a) of two teaching positions;
b) of one teaching position with another technical or scientific position;
c) of two exclusive positions or jobs for health professionals with regulated professions;93
XVII— the prohibition against accumulation extends to jobs and offices and includes autarchies, foundations, public companies, mixed-capital companies, their subsidiaries and companies controlled, directly or indirectly, by the government;94
XVIII— the Treasury and its inspectors shall, within their spheres of competence and jurisdiction, enjoy priority over other administrative sectors, as provided by law;
XIX— creation of autarchies and authorization to organize public companies, mixed-capital companies, or foundations can only be accomplished by a specific law. In the last case, it shall be left to complementary law to define the areas of their activity;95
XX— in each case legislative authorization is required for organization of subsidiaries of the entities referred to in the preceding subparagraph, as well as participation by any of them in a private company;
XXI— except for cases specified in law, public works, services, purchases and disposals shall be contracted through a process of public bidding that assures equal conditions to all bidders, with clauses that establish payment obligations, maintaining the effective conditions of the bid, as provided by law, which shall allow only requirements of technical and economic qualifications essential to secure performance of the obligations.96
XXII— the tax administrations of the Union, States, Federal District and Counties, essential activities for functioning of the State, exercised by employees with specific careers, shall have priority resources for carrying out their activities and shall act in an integrated manner, including sharing tax rolls and fiscal information, as provided by law or agreement.97
§ 1°. Publicity of the acts, programs, public works, services, and campaigns of government agencies shall have an educational, informative, or social orientation character, and shall not include names, symbols or images representing the personal promotion of governmental authorities or civil servants.
§ 3°. The law shall regulate the forms of user participation in direct and indirect public administration, specifically regulating:
I— complaints relating to providing public services in general, assuring maintenance of services for attending users and periodic evaluations, both external and internal, of the quality of services;
III— regulation of representation against negligent or abusive exercise of offices, jobs or positions in public administration.98
§ 4°. Acts of administrative dishonesty shall result in suspension of political rights, loss of public office, freezing of assets and reimbursement to the Public Treasury, in the form and degree provided by law, without prejudice to any applicable criminal action.99
§ 5°. The law shall establish the period of limitations for offenses performed by any agent, whether or not a civil servant, causing damage to the Public Treasury, without prejudice to respective actions for reimbursement.
§ 6°. Public and private legal entities providing public services shall be liable for the damages that their agents, acting in such capacity, cause to third parties, assuring the right to subrogation from the agent responsible in cases of intentional misconduct (dolo) or fault.
§ 7°. The law shall provide for requirements and restrictions on holders of offices or jobs in direct or indirect administration that permit access to privileged information.
§ 8°. Managerial, budgetary and financial autonomy of agencies and entities of direct or indirect administration may be amplified by contracts signed between their administrators and the government, for the purpose of fixing performance targets for agencies or entities, with it beingup to the law to provide for:
I— the period of duration of the contract;
II— controls and criteria for evaluation of performance, rights, obligations and liabilities of the directors;
III— remuneration of personnel.
§ 9°. The provisions of subparagraph XI apply to public companies and mixed-capital companies and their subsidiaries that receive funds from the Union, States, Federal District or Counties for payment of personnel expenses or general outlays.100
§ 10°. Simultaneous receipt of retirement benefits stemming from art. 40 or from arts. 42 and 142 with remuneration from a public office, job or position is prohibited, except for cumulative positions, as provided by this Constitution, and elective commission positions declared by law to permit free appointment and discharge.101
§ 11°. For purposes of the limit on remuneration referred to in subparagraph XI of this article, the portion that has the character of indemnification, as provided for by law, shall not be taken into account.
§ 12°. For purposes of the provisions of subparagraph XI of this article, the States and the Federal District, by amendment to their respective constitutions and organic law, shall have the power to fix as a sole limit, within their own spheres, the monthly fixed compensation of the magistrates of their respective Tribunals of Justice, limited to ninety and twenty-five hundredths percent of the monthly fixed compensation of the Ministers of the Federal Supreme Tribunal. The provisions of this paragraph do not apply to the fixed compensation of State and District Deputies or Aldermen.102
The following provisions apply to civil servants of the direct administration, autarchies, or foundations, holding elective offices:103
I— federal, state or district elective office-holders shall be furloughed from their office, employment or position;
II— one invested with the mandate of Prefect shall be furloughed from his or her office, employment or position, and may opt for remuneration;
III— one invested with the mandate of Alderman, if the working hours are compatible, shall receive the benefits of his or her office, employment or position, without prejudice to remuneration for the elective office; if the hours are not compatible, the provisions of the preceding subparagraphs shall apply;
IV— in any case requiring furlough due to exercise of an elective mandate, the period of service shall be counted for all legal purposes, except for merit promotion;
V— in case of furlough, the amounts shall be determined as if the person had been in active service for purposes of social security benefits.
Section II Civil Servants104
Art. 39. 105
The Union, States, Federal District and Counties shall organize a policy council for administration and remuneration of personnel, composed of civil servants designated by the respective Branches.
§ 1°. Setting standards for salaries and other components of the remuneration system shall take into account:
I— the nature, degree of responsibility and complexity of the component offices of each career;
II— the requirements for investiture;
III— the peculiarities of the office.
§ 2°. The Union, States and Federal District shall maintain governmental schools for formation and improvement of civil servants, with participation in courses constituting one of the requirements for career promotion. For this purpose, entry into agreements or contracts among the federative entities shall be permitted.
§ 3°. The provisions of art. 7, IV, VII, VIII, IX, XII, XIII, XV, XVI, XVII, XVIII, XIX, XX, XXII and XXX shall apply to civil servants occupying a public office. The law may establish differential requirements for admission when the nature of the office so requires.
§ 4°. Members of a Branch of Government, holders of an elective office, Ministers of the Union, and State and County Secretaries shall be remunerated exclusively by lump sum fixed compensation. Increasing any gratification, additional payment, bonus, premium, representation allowance or any other type of remuneration is forbidden, obeying, in any case, the provisions of art. 37, X and XI.
§ 5°. Laws of the Union, States, Federal District and Counties shall establish the relationship between the highest and the lowest remuneration for public servants, obeying, in any case, the provision of art. 37, XI.
§ 6°. The Executive, Legislative and Judicial Branches shall publish annually the amounts of fixed compensation and remuneration for public offices and jobs.
§ 7°. Laws of the Union, States, Federal District and Counties shall regulate application of budgetary funds stemming savings in current expenditures for each agency, autarchy and foundation, for application in the development of programs of quality and productivity, training and development, modernization, re-outfitting and rationalization of public services, including those in the form of additional payments or premiums for productivity.
§ 8°. Remuneration of career public servants shall be determined in accordance with § 4°.
Civil servants holding effective positions in the Union, States, Federal District and Counties, including their autarchies and foundations, are assured a contributory and joint social security regime through contributions from the respective public entity, active or inactive public servants and pensioners, observing criteria that preserve financial and actuarial equilibrium and the provisions of this article.
§ 1°. Civil servants included in the social security regime referred to in this article shall be retired, calculating their benefits starting with the values determined in accordance with §§ 3° and 17°:106
I— for permanent disability, pensions are proportional to the period of contribution, except when stemming from a serious, contagious or incurable illness, as specified by law;107
II— compulsorily, with a pension proportional to the period of contribution, at 70 (seventy) years of age, or at 75 (seventy-five) years of age, in accordance with a complementary law;108
III— voluntarily, so long as they have completed a minimum period of ten years of effective public service and five years in the position from which they take retirement, observing the following conditions:
a) sixty years of age with thirty-five years of contribution, if male, and fifty-five years of age with thirty years of contribution, if female;
b) sixty-five years of age if male, and sixty years of age if female, with pensions proportional to the time of contribution.109
§ 2°. At the time they are granted, retirement benefits and pensions may not exceed the respective civil servant’s remuneration in the position he or she occupied at the time of retirement or that serves as a reference for the concession of the pension.110
§ 3°. At the time they are granted, retirement benefits shall be calculated on the remuneration utilized as the basis for the contributions of the employee to the social security regimes referred to in this article and art. 201, as provided by law.111
§ 4°. Adoption of differentiated requirements and criteria for concession of retirement to those included in the regime referred to in this article is prohibited, except, in the terms defined by complementary laws, for functionaries:
I— who are handicapped;
II— who engage in risky activities;
III— whose activities are carried out under special conditions prejudicial to their health or physical integrity.112
§ 5°. The requirements of age and period of contribution shall be reduced by five years, with respect to the provisions of § 1°, III, for teachers who can show that their time was spent exclusively in actually teaching pre-primary, primary or middle school.113
§ 6°. Except for retirements arising from cumulative positions, as provided by this Constitution, receipt of more than one retirement benefit from the social security regime provided for in this article is prohibited.114
§ 7°. The law shall provide for concession of death benefits, which shall be equal to:
I— if retired at the date of death, the total value of the deceased civil servant’s benefits up to the maximum limit established for benefits in the general regime of social security referred to in art. 201, increased by seventy percent of the amount exceeding this limit; or
II— if in active service on the date of death, the total value of the remuneration of the civil servant who held an effective position at the date of death, until the maximum limit established for benefits in the general regime of social security referred to in art. 201, increased by seventy percent of the amount exceeding this limit.
§ 8°. In order to preserve permanently their real value, readjustment of benefits is assured, in accordance with criteria established by law.115
§ 9°. The period of federal, state or county contribution shall be counted for purposes of retirement and the corresponding period of service for purposes of availability.
§ 11°. The limit fixed in art. 37, XI, applies to the total sum of benefits for inactivity, including those from accumulation of public positions or employment, as well as other activities subject to contribution for the general social security regime, and to the amount resulting from addition of benefits of inactivity to remuneration for a cumulative position, as provided by this Constitution, a commission position declared by law to permit free appointment and discharge, and an elective position.
§ 12°. In addition to the provisions of this article, the social security regime for public servants holding an effective position shall observe, where applicable, requirements and criteria fixed by the general social security regime.
§ 13°. The general social security regime shall apply to a public servant occupying exclusively a commission position declared by law to permit free appointment and discharge, as well as any other temporary public position or employment.
§ 14°. So long as they institute a supplementary social security regime for their respective employees holding effective positions, the Union, States, Federal District and Counties may fix the value of retirement benefits and pensions to be conceded by the regime referred to in this article at the maximum limit established for the beneficiaries of the general social security regime referred to in art. 201.116
§ 15°. The supplementary social security regime referred to in § 14° shall be instituted by law on the initiative of the Executive, observing, where applicable, provisions of art. 202 and its paragraphs, through closed entities of supplementary social security, of a public nature, which shall offer to the respective participants only defined contribution benefit plans.117
§ 16°. Only by prior and express option may the provisions of §§ 14° and 15° be applied to civil servants who have entered public service by the publication date of the act instituting the corresponding supplementary social security regime.118
§ 17°. All remuneration values considered for calculation of the benefits provided for in § 3° shall be duly updated, as provided by law.
§ 18°. An assessment shall be levied on retirement benefits and pensions conceded by the regime referred to in this article to the extent they exceed the maximum limit established for the general social security regime benefits referred to in art. 201, at a percentage equal to that established for civil servants holding effective offices.
§ 19°. The civil servant referred to in this article who has completed the requirements for voluntary retirement established in § 1°, III, a, and who opts to remain active will receive a bonus for remaining equivalent to the value of his social security contributions until he completes the requirements for compulsory retirement contained in § 1°, II.
§ 20°. More than one regime of social security for civil servants holding effective positions is prohibited; it is also prohibited to have more than one unit managing the respective regime in each state entity, except for the provision of art. 142, § 3°, X.119
§ 21°. When the beneficiary has an incapacitating illness, as provided by law, the assessment provided for in § 18° of this article shall be levied only upon those portions of retirement and pension benefits that exceed twice the maximum limit established for benefits under the general regime of social security referred to in art. 201 of this Constitution.120
Civil servants appointed to effective positions by virtue of public competitive examinations acquire tenure after three years of actual service.
§ 1°. Tenured civil servants shall lose their positions only:
I— by virtue of a judicial judgment that has become final and unappealable;
II— through an administrative proceeding in which they have been assured a full defense;
III— through a procedure of periodic evaluation of performance, in the form of complementary law, assuring a full defense.
§ 2°. Should dismissal of a tenured civil servant be declared invalidated by a judicial judgment, the employee shall be reinstated, and any subsequent occupant of the position, if tenured, shall be reassigned to his original position, without right to compensation, placed in another position or placed on leave with remuneration proportional to time of service.
§ 3°. If his or her position is abolished or declared unnecessary, a tenured civil servant shall be placed on leave, with remuneration proportional to time of service, until adequately placed in another position.
§ 4°. As a condition for acquisition of tenure, a special performance evaluation is required by a commission organized for this purpose.121
Section III Military Servicemen of the States, Federal District and the Territories122
Members of the Military Police and Fire Brigades, institutions organized on the basis of hierarchy and discipline, are military servicemen of the States, Federal District and Territories.
§ 1°. The provisions of art. 14, § 8°, art. 40, § 9°,123 and art. 142 §§ 2° and 3° apply to the military servicemen of the States, Federal District and Territories, in addition to what becomes determined by law. It is up to specific state law to deal with the subjects of art. 142, § 3°, subparagraph X, with the respective Governors conferring the ranks of officers.124
§ 2°. What has been determined by specific law in the respective state entity shall apply to military pensioners of the States, the Federal District and the Territories.125
Section IV The Regions
For administrative purposes, the Union may coordinate its actions in the same social and geo-economic complex, seeking its development and a reduction in regional inequalities.
§ 1°. Complementary law shall provide for:
I— conditions for integration of developing regions;
II— composition of regional organizations that shall carry out, as provided by law, regional plans included in national economic and social development plans and approved simultaneously.126
§ 2°. Regional incentives shall include, inter alia, as provided by law:
I— equality of tariffs, freight rates, insurance and other cost and price items for which the Government is responsible;
II— favorable interest rates for financing priority activities;
III— exemptions, reductions or temporary deferment of federal taxes owed by individuals or legal entities;
IV— priority in the economic and social use of rivers, reservoirs, or waters that can be dammed in low-income regions subject to periodic droughts.
§ 3°. In the areas referred to in § 2°, IV, the Union shall grant incentives for recovery of arid lands and cooperate with small and medium-sized rural land owners to establish water sources and small-scale irrigation on their lands.
Title IV Organization of the Branches
Chapter I The Legislative Branch
Section I The National Congress
The Legislative Branch is the National Congress, which is composed of the Chamber of Deputies and the Senate.
The Chamber of Deputies is composed of representatives of the people, elected in each State, Territory and the Federal District by a proportional system.
§ 1°. The total number of Deputies, as well as the representation of each State and the Federal District, shall be established by complementary law in proportion to the population.127 The necessary adjustments shall be made in the year prior to the elections, so that no units of the Federation has fewer than eight or more than seventy Deputies.
The Federal Senate is composed of representatives of the States and the Federal District, elected by majority vote.
§ 2°. The representation of each State and the Federal District shall be renewed every four years, alternately reelecting one-third and two-thirds.
Section II Powers of the National Congress
The National Congress shall have the power, with the approval of the President of the Republic, which is not required for subjects specified in arts. 49, 51 and 52, to provide for all matters within the Union’s competence, particularly concerning:
I— the tax system, tax collection and income distribution;
II— multi-year plans, budgetary directives, annual budgets, credit transactions, public debt and issuance of legal tender;
III— determination and modification of the number of troops in the Armed Forces;
IV— national, regional and sectorial development plans and programs;
V— national territorial boundaries, air and maritime space and property owned by the Union;
VI— incorporation, subdivision or dismantling of areas of Territories or States, after hearing from the respective Legislative Assemblies;
VII— temporary transfer of the seat of the Union;
VIII— granting of amnesty;
IX— administrative organization, the Judiciary, the Public Ministry and the Public Defender’s Office of the Union and of the Territories, and the organization of the Judiciary and the Public Ministry [ … ]of the Federal District;128
X— creation, transformation and abolition of public offices, employment and positions, observing what has been established in art. 84, VI, b;
XI— creation and abolition of Ministries and agencies of public administration;129
XII— telecommunications and radio broadcasting;
XIII— financial matters, foreign exchange, monetary matters, financial institutions and their operations;
XIV— money, limits on currency issuance and the amount of federal indebtedness evidenced by bonds or other securities.
The National Congress shall have exclusive powers:
I— to decide definitively on international treaties, agreements or acts that result in charges or commitments encumbering the national patrimony;
II— to authorize the President of the Republic to declare war, make peace, permit foreign forces to pass through national territory or remain therein temporarily, with the exception of cases provided for by complementary law;
III— to authorize the President and the Vice-President of the Republic to leave the country for more than fifteen days;
IV— to approve a state of defense or federal intervention, authorize a state of siege or suspend any of these measures;
V— to suspend normative acts of the Executive that exceed its regulatory authority or the limits of legislative delegation;
VI— to transfer its seat temporarily;
VIII— to set the fixed compensation of the President and Vice-President of the Republic and the Ministers of the Union, observing the provisions of arts. 37, XI, 39, §4°, 150, II, 153, III, and 153, §2°, I;131
IX— to review each year accounts rendered by the President of the Republic and to consider reports on the execution of plans of the Government;
X— to supervise and control, directly or through either of its Chambers, acts of the Executive, including those of indirect administration;
XI— to safeguard preservation of its legislative authority in the face of rule-making powers of the other Branches;
XII— to consider granting and renewing concessions for radio and television broadcasters;
XIII— to select two-thirds of the members of the Tribunal of Accounts of the Union;
XIV— to approve Executive initiatives referring to nuclear activities;
XV— to authorize referenda and to call for plebiscites;
XVI— to authorize exploitation and use of water resources, prospecting and mining of mineral wealth on indigenous lands;
XVII— to give prior approval for the alienation or concession of public lands with an area greater than two thousand five hundred hectares.132
The Chamber of Deputies and the Federal Senate, or any of their Committees, may summon a Minister of the Union or any chief officers of an agency directly subordinated to the Presidency of the Republic133 to testify in person on a pre-determined matter. Failure to appear without adequate justification shall constitute an impeachable offense.
§ 1°. Ministers of the Union may appear before the Federal Senate, the Chamber of Deputies or any of their Committees, on their own initiative and by agreement with the respective Executive Committee (Mesa), to report on matters relevant to their Ministry.
§ 2°. The Executive Committees of the Chamber of Deputies and the Federal Senate may send written requests for information to Ministers of the Union or any person referred to in the heading of this article.134 Refusal or noncompliance with such request within a period of thirty days, as well as the rendering of false information, constitutes an impeachable offense.
Section III Chamber of Deputies
The Chamber of Deputies has exclusive power:
I— to authorize, by two-thirds of its members, institution of legal charges against the President and Vice-President of the Republic and the Ministers of the Union;
II— to proceed to take the accounts of the President of the Republic, when they are not submitted to the National Congress within sixty days after start of the legislative session;
III— to draft its internal rules;
IV— to provide for its organization, operation, police, creation, transformation or abolition of offices, jobs and positions in its services, and for initiation of laws135 setting its respective remuneration, observing the parameters established in the law of budgetary directives;
V— to elect members of the Council of the Republic, in the manner set out in art. 89, VII.
Section IV The Federal Senate
The Federal Senate has exclusive power:
I— to try for impeachable offenses the President and the Vice-President of the Republic, as well as Ministers of the Union and the Commanders of the Navy, the Army and the Air Force for crimes of the same nature connected with them;136
II— to try for impeachable offenses the Ministers of the Supreme Federal Tribunal, members of the National Council of Justice and the National Council of the Public Ministry, the Procurator-General of the Republic, and the Advocate-General of the Union;137
III— to give its prior approval, by secret ballot, after public hearing, on selection of:
a) judges, in cases established in this Constitution;
b) Ministers of the Tribunal of Accounts of the Union nominated by the President of the Republic;
c) Governors of the Territories;
d) president and directors of the Central Bank;
e) Procurator-General of the Republic;
f) holders of other offices, as determined by law;
IV— to give its prior approval, by secret ballot, after closed hearing, on the selection of the heads of permanent diplomatic missions;
V— to authorize foreign financial transactions of interest to the Union, States, Federal District, Territories and Counties;
VI— to establish, as proposed by the President of the Republic, global limits for the amount of the public debt of the Union, States, Federal District and Counties;
VII— to provide for global limits and conditions for foreign and domestic credit transactions of the Union, States, Federal District and Counties, their autarchies and other entities controlled by the Union;
VIII— to provide for limits and conditions on the concession of the Union’s guarantee of foreign and domestic credit transactions;
IX— to establish global limits and conditions for the amount of the debt of the States, Federal District and Counties evidenced by bonds or other securities;
X— to suspend enforcement, in whole or in part, of laws declared unconstitutional by final decision of the Supreme Federal Tribunal;
XI— to approve, by absolute majority and secret ballot, removal from office of the Procurator of the Republic before the end of his or her term of office;
XII— to draft its internal rules;
XIII— to provide for its organization; operation; police; creation, transformation or abolition of offices, jobs and positions in its services; and for initiation of laws138 setting its respective remuneration, observing the parameters established in the law of budgetary directives;
XIV— to elect the members of the Council of the Republic pursuant to art. 89, VII.
XV— periodically evaluate the functioning of the structure and components of the National Tax System, and the performance of the tax administrations of the Union, States, Federal District and Counties.139
Sole Paragraph. In cases provided for in subparagraphs I and II, the President of the Supreme Federal Tribunal, shall preside, and a conviction, which may only be rendered by two-thirds vote of the Federal Senate, shall be limited to loss of office, with disqualification to hold any public office for a period of eight years, without prejudice to any other judicial sanctions that may be applicable.
Section V Deputies and Senators
The Deputies and Senators shall enjoy civil and criminal immunity for any of their opinions, words and votes.
§ 1°. From the date of their investiture, Deputies and Senators shall be tried by the Supreme Federal Tribunal.
§ 2°. From the date of their investiture, members of the National Congress may not be arrested, except in flagrante delicto for a non-bailable crime. In this case, the police record shall be sent within twenty-four hours to the respective Chamber, which, by majority vote of its members, shall decide as to imprisonment.
§ 3°. When an accusation has been received against a Senator or Deputy for a crime committed after investiture, the Supreme Federal Tribunal shall notify the respective Chamber, which, upon initiative of a political party represented therein and by a majority vote of its members, may suspend the proceedings in the case any time prior to a final decision.
§ 4°. Upon receipt by the Executive Committee, a request for a suspension shall be acted upon by the respective Chamber during a non-extendable period of forty-five days.
§ 5°. A suspension shall toll the running of the limitations period for the duration of the mandate.140
§ 6°. Deputies and Senators shall not be obliged to testify about information received or given because of exercise of their mandates, nor against those who confided in them or received information from them.
§ 7°. Calling of Deputies and Senators to duty in the Armed Forces, even if they are in the military and even in war time, shall depend upon prior authorization from the respective Chamber.
§ 8°. Immunity of Deputies or Senators shall continue during a state of siege and may be suspended only by vote of two-thirds of the members of the respective Chamber, in cases of acts performed outside the premises of the National Congress that are incompatible with the implementation of such a measure.
Deputies and Senators may not:
I— as of the date of certification of their election:
a) sign or maintain a contract with a public legal entity, autarchy, state-owned company, mixed- capital company or public utility, unless the contract follows standard clauses;
b) accept or hold a paid office, position or job, including those that may be terminated at will, in the entities set out in the preceding subparagraph;
II— after taking office:
a) be the owner, controller or director of a company that enjoys a privilege as a result of a contract with a public legal entity or occupy any paid position therein;
b) hold an office or position subject to termination at will in the entities referred to in subparagraph I, a;
c) sponsor a cause in which any of the entities referred to in subparagraph I, a, has an interest;
d) be the holder of more than one public elective office or mandate.
Deputies or Senators shall lose their mandates if:
I— they violate any prohibition established in the preceding article;
II— their conduct is declared incompatible with parliamentary decorum;
III— they fail to attend, during each legislative term, one-third of the ordinary sessions of the Chamber to which they belong, except when on an authorized leave of absence or mission;
IV— their political rights are lost or suspended;
V— whenever decreed by the Electoral Courts, in cases provided for in this Constitution;
VI— they are criminally convicted by a judgment that has become final and nonappealable.
§ 1°. In addition to the cases defined in internal rules, abuse of prerogatives granted to members of the National Congress or receipt of undue benefits is incompatible with parliamentary decorum.
§ 2° In the cases of subparagraphs I, II and VI, a loss of mandate shall be decided by the Chamber of Deputies or the Federal Senate, by [ … ]141 absolute majority, on the initiative of the respective Executive Committee or political party represented in the National Congress, assuring a full defense.
§ 3°. In the cases provided for in subparagraphs III to V, loss of the mandate shall be declared by the Executive Committee of the respective Chamber ex officio or upon the initiative of any of its members, or of a political party represented in the National Congress, assuring a full defense.
Deputies or Senators shall not lose their mandates when:
I— invested with the office of Minister of Union, Governor of a Territory, Secretary of State, Secretary of the Federal District, or Secretary of a Territory, Prefect of the Capital or head of a temporary diplomatic mission;
II— on leave of absence from the respective Chamber because of illness, or to pursue, without remuneration, a private matter, provided that, in the latter case, the leave does not exceed one hundred-twenty days per legislative session.
§ 1°. An alternate shall be called in cases of vacancy, investiture in positions provided for in this article or a leave of absence exceeding one hundred-twenty days.
§ 2°. If a vacancy occurs and there is no alternate, an election shall be held to fill the vacancy if more than fifteen months remain before the end of the term of office.
§ 3°. In the event of subparagraph I, the Deputy or Senator may opt for the remuneration of the elected office.
Section IV Sessions
The National Congress shall meet annually in the Federal Capital, from February 2nd to July 17th and from August 1st to December 22nd.143
§ 1°. Whenever sessions scheduled for these dates fall on Saturdays, Sundays or holidays, they shall be transferred to the next business day.
§ 2°. A legislative session shall not be interrupted without approval of the draft law of budgetary directives.
§ 3°. In addition to other cases provided for in this Constitution, the Chamber of Deputies and the Federal Senate shall meet in a joint session to:
I— inaugurate the legislative session;
II— draw up common by-laws and to regulate creation of services common to both Chambers;
III— receive the oath of office of the President and Vice-President of the Republic;
IV— acknowledge a veto and to deliberate about it.
§ 4°. Each Chamber shall meet in preparatory sessions, starting on February 1st of the first year of the legislature, for seating its members and election of its respective Executive Committee for a 2 (two)-year term, prohibiting reelection to the same position in the next election.144
§ 5°. The President of the Senate shall preside over the Executive Committee of the National Congress, and the other positions shall be held, alternately, by the occupants of equivalent positions in the Chamber of Deputies and Federal Senate.
§ 6°. Extraordinary sessions of the National Congress shall be called:
I— by the President of the Senate, in the event of decreeing a state of defense or federal intervention requesting authorization to decree a state of siege and the taking of oaths and offices by the President and the Vice-President of the Republic;
II— by the President of the Republic, the Presidents of the Chamber of Deputies and the Federal Senate or at the request of a majority of the members of both Houses in the event of urgency or relevant public interest, in all cases in this subparagraph with approval by an absolute majority of each House of the National Congress.145
§ 7°. In an extraordinary legislative session, the National Congress shall consider only matters for which it was convoked, except in the situation of § 8° of this article.146 Payment of compensation for such convocation is prohibited.147
§ 8°. If provisional measures are in force on the date of the extraordinary session of the National Congress, such measures shall automatically be included on the docket of the convocation.148
Section VII Committees
The National Congress and both its Chambers shall have permanent and temporary committees, constituted in the form and with the powers provided for in the respective by-laws or in the act of their creation.
§ 1°. In forming the Executive Committees and each Committee, proportional representation of political parties or parliamentary groups that participate in the respective Chamber shall be assured to the extent possible.
§ 2°. Committees, based upon subjects over which they have competence, shall have the power to:
I— discuss and vote on bills which, in accordance with the by-laws, the authority of the entire body is unnecessary, unless an objection is made by one-tenth of the members of the Chamber;
II— hold public hearings with entities of civil society;
III— summon Ministers of the Federal Government to provide information on matters inherent to their duties;
IV— receive petitions, claims, representations or complaints from any person against acts or omissions of government authorities or public entities;
V— request the deposition of any authority or citizen;
VI— examine construction programs and national, regional and sectorial development plans and to issue opinions upon them.
§ 3°. Parliamentary investigative committees, which shall have the same investigative powers as judicial authorities, in addition to other powers set forth in the by-laws of their respective Chambers, shall be created by the Chamber of Deputies and the Federal Senate, either jointly or separately, upon the request of one-third of its members, to investigate certain facts for a determined period of time. If appropriate, their conclusions shall be forwarded to the Public Ministry to determine whether to pursue civil or criminal liability of the offenders.
§ 4°. During recess, the National Congress shall be represented by a Committee elected by its two Chambers at the last ordinary session of the legislative term, with powers defined in common by-laws, and whose composition shall reflect the proportional representation of the political parties to the extent possible.
Section VIII The Legislative Process
Subsection I General Provisions
The legislative process includes preparation of:
I— Constitutional amendments;
II— complementary laws;
III— ordinary laws;
IV— delegated laws;
V— provisional measures;
VI— legislative decrees;
Sole Paragraph. Complementary law shall provide for preparation, reduction, alteration and consolidation of laws.149
Subsection II Amendments to the Constitution
Constitutional amendments may be proposed by:
I— at least one-third of the members of the Chamber of Deputies or the Federal Senate;
II— the President of the Republic;
III— more than one-half of the Legislative Assemblies of units of the Federation, each manifesting its decision by a simple majority of its members.
§ 1°. The Constitution cannot be amended during federal intervention, state of defense or stage of siege.
§ 2°. A proposed amendment shall be debated and voted on in each Chamber of the National Congress, in two rounds, and shall be considered approved if it obtains three-fifths of the votes of the respective members in both rounds.
§ 3°. A constitutional amendment shall be promulgated by the Executive Committees of the Chamber of Deputies and Federal Senate, taking the next sequential number.
§ 4°. No proposed constitutional amendment shall be considered that is aimed at abolishing the following:
I— the federalist form of the National Government;
II— direct, secret, universal and periodic suffrage;
III— separation of powers;
IV— individual rights and guarantees.
Subsection III The Laws
Any member or Committee of the Chamber of Deputies or Federal Senate or National Congress, the President of the Republic, the Supreme Federal Tribunal, the Superior Tribunals, the Procurator-General of the Republic and citizens, shall have the power to initiate complementary and ordinary laws, in the manner and cases provided for in this Constitution.
§ 1°. The President of the Republic shall have exclusive power to initiate the following laws:
I— those that fix or modify the number of troops in the Armed Forces;
II— laws that deal with:
a) creation of public offices, positions or jobs in the direct administration and autarchies, or an increase in their remuneration;
b) administrative and judicial organization, tax and budgetary matters, public services and administrative personnel of the Territories;
c) civil servants of the Union and Territories, their legal regime, appointment to positions, tenure and retirement;150
d) organization of the Union’s Public Ministry and Public Defender’s Office, as well as general rules for organization of the Public Ministry and Public Defender’s Office of the States and Federal District and Territories;
e) creation and abolition of Ministries and agencies of public administration, observing the provisions of art. 84, VI;151
f) Armed Forces military, their legal regime, appointment to positions, promotions, tenure, compensation, reform and transference to reserves.152
In relevant and urgent cases, the President of the Republic may adopt provisional measures with the force of law; such measures shall be submitted immediately to the National Congress.
§ 1°. Provisional measures may not be issued on matters:
I— with respect to:
a) nationality, citizenship, political rights, political parties and electoral law;
b) criminal law, criminal procedure and civil procedure;
c) organization of the Judiciary and the Public Ministry, as well as the careers and guarantees of their members;
d) multi-year plans, budgetary directives, budget and additional and supplementary credits, except as provided for in art. 167, § 3°;
II— that deal with detention or sequestration of property, popular savings or any other financial assets;
III— that are reserved for complementary law;
IV— that have already been regulated in a bill approved by the National Congress that is awaiting approval or veto of the President of the Republic.
§ 2°. A provisional measure that involves institution of or an increase in taxes, except as provided for in arts. 153, I, II, IV, V, and 154, II, shall only produce effects in the following fiscal year if it has been converted into law by the last day of the [fiscal year] in which it was issued.
§ 3°. Except as provided for in §§ 11° and 12°, provisional measures shall lose their effectiveness as of the day of their issuance if they are not converted into law within a period of sixty days, which may be extended once, in the terms of § 7°, for an equal period. It is the responsibility of the National Congress to regulate, by legislative decree, the legal relations stemming from such measures.
§ 4°. The period referred to in § 3° shall start to run from the publication of the provisional measure. The running of this period is tolled during the periods the National Congress is in recess.
§ 5°. The deliberation of each of the Houses of the National Congress on the merits of provisional measures shall depend upon a prior judgment as to their compliance with constitutional requirements.
§ 6°. If it has not been considered within forty-five days, counting from its publication date, the provisional measure shall enter a regime of urgency. Subsequently, in each of the Houses of the National Congress, all other legislative deliberations of the House to which it was presented should be suspended until it is finally voted upon.
§ 7°. The effectiveness of a provisional measure may be extended once for sixty days if during the sixty-day period counting from its publication date, it has not been submitted to a final vote in the two Houses of the National Congress.
§ 9°. A mixed commission of Deputies and Senators shall have the duty to examine provisional measures and to issue an opinion about them, prior to their being considered, in separate sessions, by the full membership of each House of the National Congress.
§ 10°. Re-edition, in the same legislative session, of a provisional measure that has been rejected or that has lost its efficacy by the running of time, is forbidden.
§ 11°. If the legislative decree referred to in § 3° is not issued within sixty days after rejection or loss of efficacy of a provisional measure, the legal relations constituted under it or stemming from acts practiced during the time it was in effect shall remain in effect and shall be governed by these measures.
§ 12°. If a bill to convert or modify the original text of a provisional measure has been approved, the provisional measure shall be maintained integrally in force until the bill is signed or vetoed.153
An increase in proposed expenditures shall not be permitted:
Debates and votes on bills initiated by the President of the Republic, Supreme Federal Tribunal and Superior Tribunals shall start in the Chamber of Deputies.
§ 2°. In the case of § 1°, if the Chamber of Deputies and the Federal Senate fail to act on the bill successively within forty-five days, all other legislative deliberations shall be suspended in the respective House, with the exception of those that have a determined constitutional period, until the bill is finally voted upon.154
§ 3°. Amendments by the Federal Senate shall be considered by the Chamber of Deputies within a period of ten days, observing, as to the rest of the bill, provisions of the preceding paragraph.
§ 4°. The time periods set out in § 2° shall not run when the National Congress is in recess and shall not apply to drafts of codes.
A bill approved by one Chamber shall be reviewed by the other in a single round of discussion and voting; if the reviewing Chamber approves the bill, it shall be sent for enactment or promulgation, or if it is rejected, it shall be archived.
The Chamber in which voting was concluded shall send the bill to the President of the Republic, who, if he consents, shall approve it.
§ 1°. If the President of the Republic deems all of part of a bill unconstitutional or contrary to the public interest, he shall veto it, either in whole or in part, within a period of fifteen business days, starting from the date he received it, and he shall advise the President of the Senate of the reasons for the veto within forty-eight hours.
§ 2°. A partial veto shall only apply to the full text of an article, paragraph, subparagraph or subpart.
§ 3°. After a period of fifteen days has elapsed, silence on the part of the President of the Republic shall operate as approval.
§ 4°. A veto shall be considered in a joint session within thirty days of receipt thereof and may only be rejected by [ … ]155 an absolute majority of the Deputies and Senators.
§ 5°. If a veto is not upheld, the bill shall be sent to the President of the Republic for promulgation.
§ 7°. If the law is not promulgated by the President of the Republic within forty-eight hours in the situations set out in §§ 3° and 5°, the President of the Senate shall promulgate it, and if he does not do so within the same period, it shall be incumbent upon the Vice-President of the Senate to do so.
The subject of a rejected bill of law may only constitute the subject of a new bill in the same legislative session if proposed by an absolute majority of the members of any of the Chambers of the National Congress.
Delegated laws shall be drafted by the President of the Republic, who shall request delegation from the National Congress.
§ 1°. Acts within the exclusive power of the National Congress, those within the exclusive power of the Chamber of Deputies or Federal Senate, subjects reserved for complementary laws, and legislation on the following matters shall not be delegated:
I— organization of the Judiciary and the Public Ministry, and the careers and privileges of their members;
II— nationality, citizenship, and individual, political and electoral rights;
III— multi-year plans, budgetary directives and budgets.
§ 2°. Delegation to the President of the Republic shall be granted by National Congressional resolution specifying its contents and terms for its performance.
Section IX Supervision of Accounting, Finances, and Budget
Supervision of the accounting, finances, budgets, operations and patrimony of the Union and entities of direct and indirect administration with respect to legality, legitimacy, economy, application of subsidies and waiver of revenues shall be exercised by the National Congress, by means of external control and through the internal control system of each Branch.
Sole Paragraph. Accounts shall be rendered by any individual or legal entity, public or private,157 that uses, collects, keeps, manages or administers public funds, property and securities or those for which the Union is responsible, or that assumes obligations of pecuniary nature in the name of the Union.
External control under the responsibility of the National Congress shall be exercised with the assistance of the Tribunal of Accounts of the Union, which shall have the power to:
I— examine the accounts rendered annually by the President of the Republic, by means of a prior opinion, which shall be prepared within sixty days of receipt thereof;
II— evaluate accounts of administrators and others responsible for public funds, assets, and securities of the direct and indirect administration, including foundations and companies organized and maintained by the Union, as well as accounts of those causing a loss, misplacement, or other irregularity resulting in harm to the public treasury;
III— examine, for registration purpose, the legality of acts in hiring personnel for any position in the direct and indirect administration, including foundations organized and maintained by the government, except for appointments to commission offices, as well as granting retirements and pensions, except for subsequent improvements that do not alter the legal basis of the act of concession;
IV— perform, on its own initiative or that of the Chamber of Deputies, the Federal Senate, a technical committee or investigative commission, inspections and audits of an accounting, financial, budgetary, operational and patrimonial nature in the administrative units of the Legislative, Executive, and Judicial Branches and other entities referred to in subparagraph II;
V— supervise the national accounts of supranational companies in whose capital stock the Union holds a direct or indirect interest, according to the terms established in the constitutive treaty;
VI— supervise application of any resources transferred by the Union, under a convention, accord, arrangement or other similar instrument, to a State, the Federal District or a County;
VII— deliver information requested by the National Congress, either of its Chambers or any of its respective committees concerning supervision of the accounting, finances, budget, operations and patrimony, and as to the results of audits and inspections made;
VIII— in cases of illegal expenditures or irregular accounts, apply to those responsible, the sanctions provided for in law, which shall establish, among other penalties, fines proportional to the damages caused to the public treasury;
IX— if illegalities are verified, establish a period for the agency or entity to take the necessary measures for strict enforcement of the law;
X— stay execution of a challenged act, if the challenge is not adhered to, communicating such decisions to the Chamber of Deputies and the Federal Senate;
XI— advise the proper Branch of any determined irregularities or abuses.
§ 1°. In the case of a contract, the stay shall be adopted directly by the National Congress, which shall request immediately that the Executive take appropriate action.
§ 2°. If the National Congress or the Executive fails to take the action provided for in the preceding paragraph within ninety days, the Tribunal shall decide the matter.
§ 3°. Decisions of the Tribunal imposing debts or fines shall have the effect of executable judgments.
If there are signs of unauthorized expenditures, even in the form of non-programmed investments or non-approved subsidies, the permanent Joint Committee referred to in art. 166, § 1°, may request that the responsible government authority provide the necessary explanations within five days.
§ 1°. If the explanations are not provided or are considered insufficient, the Committee shall ask the Tribunal to decide the matter conclusively within a period of thirty days.
The Tribunal of Accounts of the Union, composed of nine Ministers, sits in the Federal District, with its own staff and with jurisdiction throughout the entire Brazilian territory, and where appropriate, shall exercise the powers provided in art. 96.
§ 1°. Ministers of the Tribunal of Accounts of the Union shall be nominated from Brazilians who satisfy the following requirements:
I— more than thirty-five and less than sixty-five years of age;
II— good moral character and unblemished reputation;
III— notable understanding of law, accounting, economics and finances or public administration;
IV— more than ten years of practice or actual professional activity requiring the understanding mentioned in the preceding subparagraph.
§ 2°. Ministers of the Tribunal of Accounts of the Union shall be chosen:
I— one-third by the President of the Republic, with the approval of the Senate, two being alternately chosen from among auditors and members of the Public Ministry assigned to the Tribunal from lists of three candidates suggested by the Tribunal, in accordance with the criteria of seniority and merit;
II— two-thirds by the National Congress.
§ 3°. Ministers of the Tribunal of Accounts of the Union shall have the same guarantees, prerogatives, impediments, compensation and privileges as the Ministers of the Superior Tribunal of Justice. The rules of art. 40 apply to their retirement benefits and pensions.158
The Legislature, Executive and Judiciary shall maintain integrated systems of internal control in order to:
I— evaluate attainment of targets established in the multi-year plan, implementation of governmental programs and the budgets of the Union;
II— determine the legality and evaluate the efficacy and efficiency of budgetary, financial and patrimonial management by agencies and entities of the federal administration, as well as application of public resources by private law entities;
III— exercise control over credit transactions, avals,159 and guarantees, as well as over the rights and property of the Union;
IV— support external control in the performance of their institutional missions.
§ 1°. Upon learning of any irregularity or illegality, those responsible for internal control shall notify the Tribunal of Accounts of the Union thereof, upon penalty of being jointly liable.
The rules established in this section shall apply, where appropriate, to the organization, composition and supervision of the Tribunals of Accounts of the States and the Federal District, as well as the Tribunals and Councils of Accounts of the Counties.
Chapter II The Executive Branch
Section I President and Vice-President of the Republic
The powers of the Executive are exercised by the President of the Republic, assisted by the Ministers of the Union.
The President and the Vice-President of the Republic shall be elected simultaneously on the first Sunday of October for the first round, and if there should be a second round, on the last Sunday of October of the year prior to the termination of the term of office of the current president.160
§ 1°. Election of the President of the Republic shall signify election of his running mate as Vice-President.
§ 2°. Once registered by a political party, the candidate who obtains an absolute majority of votes, not counting those left blank or void, shall be deemed the President-elect.
§ 3°. If no candidate attains an absolute majority on the first ballot, another election shall be held within twenty days after announcement of the results between the two candidates who obtained the greatest number of votes, and the one who obtains a majority of valid votes shall be deemed elected.
§ 4°. If, before the runoff election is held, a candidate dies, withdraws or is legally impaired, the candidate with the greatest number of votes among the remaining candidates shall be called.
The President and the Vice-President of the Republic shall take office at a session of the National Congress, taking an oath to maintain, defend and comply with the Constitution, observe the laws, promote the well-being of the Brazilian people, and sustain the union, integrity and independence of Brazil.
The Vice-President shall replace the President in the event of impediment and shall succeed him in the event of vacancy.
In the event of impediment of the President and Vice-President, or a vacancy in the respective offices, the President of the Chamber of Deputies, President of the Federal Senate, and President of the Supreme Federal Tribunal shall be called successively to serve as President.
If a vacancy occurs in the offices of President and Vice-President of the Republic, an election shall be held ninety days after the last vacancy occurred.
§ 1°. If the vacancy occurs during the last two years of the President’s term of office, the election for both offices shall be made by the National Congress within thirty days after the last vacancy occurred, as provided by law.
The term of office of the President of the Republic is four years and shall begin on January 1st of the year following his election.161
Section II Powers Of The President Of The Republic
The President of the Republic has the exclusive powers to:
I— appoint and dismiss Ministers of the Union;
II— exercise, with the assistance of the Ministers of the Union, the upper management of the federal administration;
III— initiate legislation, in the manner and cases provided for in this Constitution;
IV— approve, promulgate and order publication of laws, as well as issue decrees and regulations for their faithful execution:
V— veto bills, either in whole or in part;
VI— to provide for by decree with respect to:
a) organization and functioning of the federal administration, when this does not imply an increase in expense nor the creation or abolition of public agencies;
b) the abolition of public positions or offices, when unoccupied;162
VII— maintain relations with foreign States and accredit their diplomatic representatives;
VIII— conclude international treaties, conventions and acts, subject to the approval of the National Congress;
IX— decree a state of defense or a state of siege;
X— decree and enforce federal intervention;
XI— send a governmental message and plan to the National Congress at the opening of the legislative session, describing the Country’s situation and requesting actions he deems necessary;
XII— grant pardons and commute sentences, after hearing, if necessary, from the agencies instituted by law;
XIII— exercise supreme command over the Armed Forces, appoint the commanders of the Navy, the Army and the Air Force,163 promote their generals and appoint them to positions held exclusively by them;
XIV— appoint, after approval by the Federal Senate, the Ministers of the Supreme Federal Tribunal and Superior Tribunals, Governors of the Territories, Procurator-General of the Republic, president and directors of the Central Bank and other civil servants, when determined by law;
XV— appoint, observing the provisions of art. 73, the Ministers of the Tribunal of Accounts of the Union;
XVI— appoint judges, in the cases provided for in this Constitution, and the Advocate-General of the Union;
XVII— appoint members of the Council of the Republic, according to the terms of art. 89, VII;
XVIII— convoke and preside over the Council of the Republic and the National Defense Council;
XIX— declare war, in the event of foreign aggression, when authorized by the National Congress or, upon its ratification if the aggression occurs between legislative sessions, and decree full or partial national mobilization under the same conditions;
XX— make peace, if authorized by or upon ratification by the National Congress;
XXI— confer decorations and honorary awards;
XXII— permit, in cases provided for by complementary law, foreign forces to pass through Brazilian territory or to remain therein temporarily;
XXIII— submit to the National Congress the multi-year plan, the draft of the law of budgetary directives and the budget proposals provided for in this Constitution;
XXIV— render annual accounts to the National Congress concerning the previous fiscal year, within sixty days of the opening of the legislative session;
XXV— fill and abolish Union offices, in accordance with the law;
XXVI— issue provisional measures with the force of law in the terms of art. 62;
XXVII— exercise other powers provided for in this Constitution.
Sole Paragraph. The President of the Republic may delegate the powers mentioned in subparagraphs VI, XII and XXV, first part, to Ministers of the Union, the Procurator-General of the Republic or the Advocate-General of the Union, who shall observe the limitations set forth in the respective delegations.
Section III Impeachment of the President of the Republic
Acts of the President of the Republic that are attempts against the Federal Constitution are impeachable offenses, especially those against the:
I— existence of the Union;
II— free exercise of the powers of the Legislature, Judiciary, Public Ministry and constitutional powers of the units of the Federation;
III— exercise of political, individual and social rights;
IV— internal security of the Country;
V— probity in administration;
VI— the budget law;
VII— compliance with the laws and court decisions.
If two-thirds of the Chamber of Deputies accept an accusation against the President of the Republic, he shall be tried before the Supreme Federal Tribunal for common criminal offenses or before the Federal Senate for impeachable offenses.
§ 1°. The President shall be suspended from his duties:
I— in common criminal offenses, if the accusation or criminal complaint is received by the Supreme Federal Tribunal;
II— in impeachable offenses, after proceedings are instituted by the Federal Senate.
§ 2°. If, after a period of one hundred eighty days, the trial has not been concluded, the President’s suspension shall end, without prejudice to normal progress of the proceedings.
§ 3°. The President of the Republic shall not be subject to arrest for common offenses until after a judgment of criminal conviction.
Section IV The Ministers of the Union
Ministers of the Union shall be chosen from among Brazilians older than twenty-one and in full possession of their political rights.
Sole Paragraph. A Minister of the Union, in addition to other powers set out in this Constitution and in law, shall have the power to:
I— orient, coordinate and supervise agencies and entities of the federal administration in the area of his authority and to countersign acts and decrees signed by the President of the Republic;
II— issue instructions for the enforcement of laws, decrees and regulations;
III— submit an annual report on his administration of the Ministry to the President of the Republic;
IV— perform acts pertinent to the powers granted or delegated to him by the President of the Republic.
The law shall provide for the creation and abolition of Ministries and agencies of public administration.164
Section V Council of the Republic and the National Defense Council
Subsection I Council of the Republic
The Council of the Republic is the higher consultative body for the President of the Republic and in which the following participate:
I— the Vice-President of the Republic;
II— the President of the Chamber of Deputies;
III— the President of the Federal Senate;
IV— the majority and the minority leaders of the Chamber of Deputies;
V— the majority and minority leaders of the Federal Senate;
VI— the Minister of Justice;
VII— six Brazilians who are citizens by birth and over the age of thirty-five, two of whom are appointed by the President of the Republic, two elected by the Federal Senate, and two elected by the Chamber of Deputies, all for a non-renewable three-year term.
The Council of the Republic has the authority to give its opinion on:
I— federal intervention, state of defense and state of siege;
II— issues relevant to the stability of the democratic institutions.
§ 1°. The President of the Republic may call a Minister of the Union to participate in a Council meeting when the agenda includes a matter related to the respective Ministry.
Subsection II National Defense Council
The National Defense Council is the consultative body of the President of the Republic on matters related to national sovereignty and defense of the democratic State, and in which the following participate as original members;
I— the Vice-President of the Republic;
II— the President of the Chamber of Deputies;
III— the President of the Federal Senate;
IV— the Minister of Justice;
V— the Minister of the State of Defense;
VI— the Minister of Foreign Affairs;
VII— the Minister of Planning.
VIII— the Commanders of the Navy, the Army and the Air Force.165
§ 1°. The National Defense Council has the authority to:
I— opine in the event of declaration of war and making of peace, in accordance with this Constitution;
II— opine on decreeing a state of defense, state of siege and federal intervention;
III— propose the criteria and conditions for utilization of areas indispensable to the security of national territory and to opine on their effective use, especially for the frontier strip and those related to preservation and exploitation of natural resources of any kind;
IV— study, propose and monitor development of initiatives required to guarantee national independence and defense of the democratic State.
Chapter III The Judiciary
Section I General Provisions
The Judiciary consists of:
I— the Supreme Federal Tribunal;
I-A— the National Council of Justice;166
II— the Superior Tribunal of Justice;
III— the Federal Regional Tribunals and the Federal Judges;
IV— the Labor Tribunals and the Labor Judges;
V— the Electoral Tribunals and the Electoral Judges;
VI— the Military Tribunals and the Military Judges;
VII— the Tribunals and Judges of the States, the Federal District and the Territories.
§ 1º. The Supreme Federal Tribunal, the National Council of Justice and the Superior Tribunals sit in the Federal Capital.
§ 2º. The Supreme Federal Tribunal and the Superior Tribunals have jurisdiction over the entire national territory.167
Complementary law, proposed by the Supreme Federal Tribunal, shall set forth the Statute of the Judicature, observing the following principles:
I— admission into the career, with the initial office of substitute judge, through public competitive examination and comparison of professional credentials, with the participation of the Brazilian Bar Association in all phases, requiring the basic law degree and a minimum of three years of legal activity,168 obeying the order of classification for appointments;
II— promotion from level to level,169 alternately based upon seniority and merit, observing the following rules:
a) promotion is mandatory for a judge who has appeared on the merit list three consecutive or five alternate times;
b) merit promotion requires two years of service at the respective level, and that the judge appear in the top fifth of the seniority list of such level, unless no one satisfying such requirements accepts the vacant post;
c) evaluation of merit according to performance and objective criteria of productivity and efficiency in exercising jurisdiction and by attendance and utilization of official courses or recognized courses for improvement;170
d) in determining seniority, the Tribunal may reject the most senior judge only by a substantiated two-thirds vote of its members, according to a specific procedure, assuring a full defense, the ballot being repeated until the selection is determined;
e) judges shall not be promoted if they unjustifiably retain cases in their power beyond the legal period, and they cannot return such cases to the clerk’s office without a proper order or decision.171
III— access to intermediate appellate Tribunals shall be based upon seniority and merit, alternately, determined at the last level or only entrance level;172
IV— provisions for official courses for preparation, improvement and promotion of judges; participation in an official course or one recognized by a national school for the preparation and improvement of judges is an obligatory step in the process of securing life tenure;173
V— the fixed compensation of the Ministers of the Superior Tribunals shall correspond to ninety-five percent of the monthly fixed compensation fixed for the Ministers of the Supreme Federal Tribunal and the fixed compensation of the other judges shall be set by law and scaled, at the Federal and State levels, in conformity with the respective categories of the national judicial structure. The difference between one career category and the next may not be greater than ten percent or less than five percent, nor exceed ninety-five percent of the monthly fixed compensation of Ministers of the Superior Tribunals, obeying, in any case, the provisions of arts. 37, XI, and 39, §4°;174
VII— permanent judges shall reside in their respective judicial district, except with authorization of their tribunals;176
VIII— the acts of removal, placement on paid leave and retirement of judges, in the public interest, must be based upon an absolute majority vote of the respective tribunal or of the National Council of Justice, assuring a full defense;177
IX— all judgments by agencies of the Judiciary shall be public, and all decisions shall be substantiated, under penalty of nullity; in cases in which preservation of the right of intimacy of the interested parties in secrecy does not prejudice the public interest in information, the law may limit attendance at determined occasions to only the parties themselves and their attorneys, or only to the latter;
X— administrative decisions of tribunals must be substantiated and in public sessions, with disciplinary decisions being adopted by an absolute majority of their members;178
XI— for the purpose of exercising administrative and jurisdictional powers delegated to the jurisdiction of the full court, a special body, with a minimum of eleven and a maximum of twenty-five members, may be organized in tribunals with more than twenty-five judges; one-half of the positions shall be selected on the basis of seniority and the other half by election of the full court.179
XII— court functioning shall be uninterrupted, prohibiting collective vacations in the courts of first instance and tribunals of second instance; on days when on which there are no normal court working hours, judges shall be on continual duty;
XIII— the number of judges in a jurisdictional unit shall be proportional to effective judicial demand and respective population;
XIV— performance of administrative and ministerial acts without decisional character shall be delegated to public employees;
XV— cases shall be distributed immediately at all levels of jurisdiction.180
One-fifth of the seats on the Federal Regional Tribunals and the Tribunals of the States, Federal District and Territories, shall be occupied by members of the Public Ministry with over ten years of service and by lawyers of notable legal knowledge and unblemished reputations, with over ten years of actual professional activity, nominated in a list of six names by the entities that represent the respective groups.
Judges enjoy the following guarantees:
I— life tenure, which, for judges of the first instance, shall be acquired only after two years in office; during this period, loss of office shall be determined by the tribunal to which the judge is subject and, in other cases, by a final and unappealable judgment of a court;
II— non-removability, except by reason of public interest, under the terms of art. 93, VIII;
Sole Paragraph. Judges are forbidden to:
I— hold, even when on paid leave from office, any other job or position, except as a teacher;
II— receive, for any account or any pretext, court costs or participation in any lawsuit;
III— engage in political or political party activities;
IV— receive, under any title or pretext, assistance or contributions from individuals or public or private entities, except as provided by law;
V— to practice law for three years in a court or tribunal which they have left, starting from the date they left the position by retirement or resignation.182
The following shall have exclusive powers:
I— the Tribunals:
a) to elect their directive bodies and to prepare their internal rules, observing the rules of procedure and procedural guarantees of the parties, regulating the jurisdiction and operation of the respective jurisdictional and administrative bodies;
b) to organize their secretariats and auxiliary services and those of the courts subordinated to them, taking care to exercise their respective supervisory activities;
c) to fill, in the form provided for in this Constitution, positions for career judges within their respective jurisdictions;
d) to propose the creation of new first instance courts;
e) to fill, through public competitive examinations, or examinations and comparison of professional credentials, obeying the provisions of art. 169, sole paragraph, the positions necessary for the administration of justice, with the exception of positions of confidence, as defined by law;
f) to grant leave, vacations and other absences to their members and to judges and employees immediately subordinated to them;
II— the Supreme Federal Tribunal, Superior Tribunals and Tribunals of Justice, to propose to their respective Legislatures, observing the provisions of art. 169:
a) changes in the number of members of inferior tribunals;
b) creation and abolition of positions and remuneration of their auxiliary services and judges subordinate to them, as well as determination of the fixed compensation of their members and judges, including inferior tribunals, where they exist;183
c) creation or abolition of inferior tribunals;
d) changes in judicial organization and division;
III— the Tribunals of Justice, to try judges of the States, Federal District and Territories, as well as members of the Public Ministry, for common crimes and impeachable offenses, with the exception of cases within the jurisdiction of the Electoral Courts.
Tribunals may declare public laws or normative acts unconstitutional only by vote of an absolute majority of their members or members of their respective special body.
The Union shall create in the Federal District and Territories and States shall create [within their borders]:
I— special courts, staffed by professional judges, or professional and lay judges, with the power to conciliate, to enter judgment and to execute with respect to civil suits of lesser complexity and minor criminal offenses. Proceedings shall be oral and very summary, permitting, in cases provided for by law, settlement and resolution of appeals by panels of judges of the first instance;
II— salaried justices of the peace, consisting of citizens elected by direct, universal and secret ballot, for a term of office of four years, with jurisdiction, in accordance with the law, to perform marriages, verify qualification proceedings ex officio or after challenge, and perform conciliatory functions of a non-jurisdictional nature, in addition to other functions provided by law.
§ 2º. Costs and fees shall be used exclusively to finance services under the care of specific activities of justice.184
§ 1°. The Tribunals shall prepare their budget proposals, within the limits stipulated jointly with the other Branches in the law of budgetary directives.
§ 2°. After hearing from other interested tribunals, the proposal shall be submitted:
I— at the Federal level, by the Presidents of the Supreme Federal Tribunal and Superior Tribunals, with approval of their respective Tribunals;
II— at the level of the States, Federal District and Territories, by the Presidents of the Tribunals of Justice, with the approval of their respective Tribunals.
§ 3º. If the bodies referred to in § 2° do not deliver their respective budgetary proposals within the period established in the law of budgetary directives, for the purposes of consolidation of the annual budgetary proposal, the Executive shall consider the amounts approved in the budgetary law in effect, adjusting them in accordance with the limits as stipulated in § 1° of this article.
§ 4°. If the budgetary proposals referred to in this article are delivered in disregard of the limits as stipulated in § 1°, the Executive shall make the necessary adjustments for the purposes of consolidation of the annual budgetary proposal.
§ 5º. During the execution of the budget for the fiscal year, no expenditures or assumption of obligations that exceed the limits established in the law of budgetary directives shall be realized by opening supplementary or special credits, except as previously authorized.185
Payments owed by the Federal, State, District and County Treasuries, by virtue of a court judgment, shall be made exclusively in the chronological order of submission of the judicial orders for payment and to the account of the respective credits. Designation of cases or persons in budget appropriations and the opening of additional credits for such purposes are prohibited.
§ 1°. Debts for support include those stemming from salaries, wages, earnings, pensions and their complementary provisions; social security benefits; and indemnification for death or disability, based upon civil liability, by virtue of a final and non-appealable court judgment. These debts shall be paid in preference over all other debts, except for those referred to in § 2° of this article.
§ 2°. Debts for support owed to persons 60 (sixty) years of age or more on the date of the issuance of the judicial order of payment,186 or who are suffering from a serious disease, as defined by law, shall be paid with preference over all other debts, up to a value equivalent to three times that fixed by law for the purposes of the provision in § 3° of this article. Payment of a fractional amount is permitted for this purpose, with the rest being paid in the chronological order of the presentation of the judicial order of payment.187
§ 3°. The provision in the heading of this article with respect to the issuing of judicial orders of payment does not apply to payment of obligations defined by law as small amounts, which must be paid by the referred to Treasuries by virtue of a final non-appealable judgment.188
§ 4°. For the purposes of the provision of § 3°, differing amounts for entities of public law may be fixed by their own laws according to different economic capabilities, with a minimum amount equal to the amount of the highest social security benefit in the general regime.189
§ 5°. Budgets of public law entities must include funds necessary for payment of their debts stemming from final non-appealable judgments in accordance with judicial orders of payment submitted by July 1st. Payment shall be made by the end of the following fiscal year, at which time their value shall be monetarily updated.
§ 6°. The budgetary appropriations and the opened credits shall be consigned directly to the Judiciary. It is the duty of the President of the Tribunal rendering the decision that permits execution to determine integral payment and to authorize, at the creditor’s request, attachment of the amount necessary to satisfy the debt, but only in the event of failure to respect his right of precedence or failure to make a budgetary allocation of an amount necessary to satisfy his debt.190
§ 7°. The President of the competent Tribunal who, by an act of commission or omission, delays or tries to frustrate the regular liquidation of a judicial order of payment commits an impeachable offense and shall also be held liable before the National Council of Justice.
§ 8°. It is prohibited to issue a judicial order of payment complementary or supplementary to the amount paid, as well as to fractionize, divide or reduce the value of its execution, for the purpose of inclusion as part of the total to which § 3° of this article provides.
§9°. 191 Independent of regulation, at the time they are issued, judicial orders of payment must be reduced, as a setoff, by an amount corresponding to clear and certain debts, whether or not inscribed in the active debt and constituted against the original creditor by the debtor’s Public Treasury, including past due installment amounts, except for those whose execution was suspended by virtue of an administrative or judicial challenge.
§ 10°. 192 Prior to the issuance of judicial orders of payment, the Tribunal shall request the debtor Public Treasury to respond within 30 (thirty) days, under penalty of the loss of the right of reduction, with information about debts that fulfill the conditions established in § 9° for the purposes provided therein.
§ 11°. In accordance with what is established by the law of the debtor federative entity, the creditor may exchange his credits in judicial orders of payment to purchase real public assets of the respective federative entity.
§ 12°. 193 After promulgation of this Constitutional Amendment, updating of the requisitioned sums between expedition until effective payment, independent of its nature, shall be made in accordance with the official index for basic remuneration in savings accounts. For the purposes of compensation for the delay simple interest shall be included at the same percentage rate as interest on savings accounts. The incidence of compensatory interest shall be excluded.
§ 13°. Without need for the debtor’s consent, the creditor may assign to third parties, either totally or partially, his credits in judicial orders of payment. The provisions of §§ 2° and 3° do not apply to the assignee.
§ 14°. The assignment of judicial orders of payment shall be effective only after communication, by means of a protocolized petition, to the tribunal of origin and to the debtor entity.
§ 15°. Without prejudice to the provisions of this article, a law complementary to this Federal Constitution shall establish a special regime for the payment of credits for State, Federal District and County judicial orders of payment, providing for linkages between current net receipts and the form and period for liquidation.
§ 16°. At its exclusive criteria and in the form of law, the Union may assume debts stemming from State, Federal District and County judicial orders of payment, refinancing them directly.194
Section II The Supreme Federal Tribunal
The Supreme Federal Tribunal is composed of eleven Ministers, chosen from citizens over thirty-five years and under sixty-five years of age, with notable legal knowledge and unblemished reputations.
The Supreme Federal Tribunal has primary responsibility for safeguarding the Constitution, with the power:
I— to try and to decide, as matters of original jurisdiction:
a) direct actions of unconstitutionality of federal or state normative acts or declaratory actions of constitutionality of federal laws or normative acts;195
b) charges of common criminal offenses against the President of the Republic, the Vice-President, members of the National Congress, the Tribunal’s own Ministers, and the Procurator-General of the Republic;
c) charges of common criminal offenses and impeachable offenses against Ministers of the Union and the Commanders of the Navy, Army and Air Force, except for the provision of art. 52, I, members of the Superior Tribunals and the Tribunal of Accounts of the Union, and chiefs of permanent diplomatic missions;196
d) habeas corpus when the constrained party is any of the persons referred to in the preceding subsections; writs of security and habeas data against acts of the President of the Republic, Executive Committees of the Chamber of Deputies and the Federal Senate, Tribunal of Accounts of the Union, Procurator-General of the Republic, and the Supreme Federal Tribunal itself;
e) litigation between a foreign State or international organization and the Union, State, Federal District or Territory;
f) cases and conflicts between the Union and States, the Union and Federal District, or between one another, including their respective entities of indirect administration;
g) extradition requests from foreign States;
i) habeas corpus, when the constraining party is a Superior Tribunal or when the constraining party or the constrained party is an198 authority or functionary whose acts are directly subject to the jurisdiction of the Supreme Federal Tribunal, or in the case of a crime subject to the original jurisdiction of the Supreme Federal Tribunal;
k) [there is no subsection k]
l) claims to preserve its jurisdiction and to guarantee the authority of its decisions;
m) execution of a judgment in cases within its original jurisdiction, it being allowed to delegate the power to perform procedural acts;
n) actions in which all members of the Judiciary have a direct or indirect interest, and those in which more than half the members of the tribunal of origin are disqualified or have a direct or indirect interest;
o) conflicts of jurisdiction between the Superior Tribunal of Justice and any other tribunals, between Superior Tribunals, or between the latter and any other tribunal;
p) requests for a provisional remedy in direct actions of unconstitutionality;
q) mandates of injunction, when drawing up the regulatory rule is the responsibility of the President of the Republic, National Congress, Chamber of Deputies, Federal Senate, Executive Committees of one of these Legislative Chambers, the Tribunal of Accounts of the Union, one of the Superior Tribunals or the Supreme Federal Tribunal itself;
r) actions against the National Council of Justice and against the National Council of the Public Ministry;201
II— to decide, on ordinary appeal:
a) if denied, habeas corpus, writs of security, habeas data and mandates of injunction decided originally by the Superior Tribunals;
b) political crimes;
III— to decide on extraordinary appeal, cases decided in sole or last instance, when the appealed decision:
a) is contrary to a provision of this Constitution;
b) declares a treaty or a federal law unconstitutional;
c) upholds a law or act of local government challenged as violative of this Constitution;
d) upholds a local law challenged as contrary to federal law.202
§ 1°. Allegation of disobedience of a fundamental precept stemming from this Constitution shall be heard by the Supreme Federal Tribunal, as provided by law.203
§ 2°. The Supreme Federal Tribunal’s definitive decisions on the merits in direct actions of unconstitutionality and in declaratory actions of constitutionality shall have erga omnes effects and shall be binding with respect to the rest of the Judiciary and federal, state and county public administration, both direct and indirect.204
§ 3°. In order for the Tribunal to examine the admissibility of an extraordinary appeal, which may be rejected only by manifestation of two-thirds of its members, the appellant must demonstrate the general repercussions of the constitutional questions argued in the case, as provided by law.205
A direct action of unconstitutionality and a declaratory action of constitutionality may be brought by:
I— the President of the Republic;
II— the Executive Committee of the Federal Senate;
III— the Executive Committee of the Chamber of Deputies;
IV— the Executive Committee of a Legislature or the Legislative Chamber of the Federal District;
V— the Governor of a State or the Federal District;206
VI— the Procurator-General of the Republic;
VII— the Federal Council of the Brazilian Bar Association;
VIII— a political party represented in the National Congress;
IX— a syndical confederation or a national class entity.
§ 1º. The Procurator-General of the Republic shall be heard previously in direct actions of unconstitutionality and in all cases coming within the jurisdiction of the Supreme Federal Tribunal.
§ 2º. Whenever there is a declaration of unconstitutionality because of lack of measures to make a constitutional rule effective, the appropriate Branch shall be notified to adopt the necessary measures, and in the case of an administrative agency, to do so within thirty days.
§ 3º. When it considers the unconstitutionality of a legal rule or a normative act in the abstract, the Supreme Federal Tribunal shall first summon the Advocate-General of the Union to defend the impugned act or text.
Art. 103-A. 208
After reiterated decisions on constitutional matters, the Supreme Federal Tribunal may, ex-officio or upon demand, approve by decision of two-thirds of its members a precedent (súmula) which, upon publication in the official press, shall have binding effects on the other organs of the Judiciary and the federal, state and county public administration, both direct and indirect. The Supreme Federal Tribunal may also revise or cancel its precedents in the manner established by law.
§ 1º. The objective of a precedent shall be the validity, interpretation and efficacy of determined norms, as to which there is presently controversy among judicial bodies or between judicial bodies and the public administration, causing serious legal insecurity and corresponding multiplication of cases about identical questions.
§ 2º. Without prejudice to what has been established by law, approval, revision or cancellation of a precedent may be demanded by persons with standing to bring a direct action of unconstitutionality.
§ 3º. A reclamation to the Supreme Federal Tribunal will lie from an administrative act or judicial decision that is contrary to the applicable precedent or that improperly applies the precedent. Upon determining that a reclamation should be granted, the Supreme Federal Tribunal shall annul the administrative act or vacate the challenged judicial decision and shall determine that another shall be rendered, with or without application of the precedent, as may be the case.
Art. 103-B. 209
The National Council of Justice shall consist of fifteen members [ … ] for a term of office of two years, with one renewal permitted, including:
I— the President of the Supreme Federal Tribunal [ … ];
II— a Minister of the Superior Tribunal of Justice, selected by that tribunal;
III— a Minister of the Superior Tribunal of Labor, selected by that tribunal;
IV— a magistrate from a Tribunal of Justice, selected by the Supreme Federal Tribunal;
V— a state judge, selected by the Supreme Federal Tribunal;
VI— a judge of the Federal Regional Tribunal, selected by the Superior Tribunal of Justice;
VII— a federal judge, selected by the Superior Tribunal of Justice;
VIII— a judge of the Regional Labor Tribunal, selected by the Superior Labor Tribunal;
IX— a labor judge, selected by the Superior Labor Tribunal;
X— a member of the Union’s Public Ministry, selected by the Procurator-General of the Republic;
XI— a member of the state Public Ministry, selected by the Procurator General of the Republic from nominations by the competent body of each state institution;
XII— two lawyers, selected by the Federal Council of the Brazilian Bar Association;
XIII— two citizens of notable legal knowledge and unblemished reputation, one appointed by the Federal Chamber of Deputies and the other by the Federal Senate.
§ 1º. The President of the Supreme Federal Tribunal [ … ]and in his absence or impediment, by the Vice-President of the Supreme Federal Tribunal, shall preside over the Council.
§ 2°. The other members of the Council shall be appointed by the President of the Republic, after approval of his choice by an absolute majority of the Federal Senate.
§ 3º. If the appointments provided for in this article are not carried out within the legal period, the choice shall be made by the Supreme Federal Tribunal.
§ 4º. It is the responsibility of the Council to control the administrative and financial functioning of the Judiciary and performance of judges’ functional duties. In addition to the powers conferred upon it by the Statute of the Judicature, the Council shall have responsibility for:
I— preserving judicial autonomy and compliance with the Statute of the Judicature, being able to issue regulamentary acts, within the ambit of its jurisdiction, or to recommend measures;
II— safeguarding observance of art. 37 and appreciating, ex officio or upon demand, the legality of administrative acts performed by members or organs of the Judiciary, being able to vacate or to revise them, or to set a period in which to adopt necessary measures for exact compliance with the law, without prejudice to the jurisdiction of the Tribunal of Accounts of the Union;
III— receiving and hearing complaints against members or bodies of the Judiciary, including against their auxiliary services, employees and agencies rendering notarial and registry services that act by delegation of public or official powers, without prejudice to the disciplinary and correctional jurisdiction of the tribunals. The Council may assume jurisdiction over ongoing disciplinary proceedings and determine removal, availability or retirement with compensation or benefits proportional to the time of service and apply other administrative sanctions, assuring a full defense;
IV— making representations to the Public Ministry, in the case of crimes against public administration or abuse of authority;
V— revising, ex officio or upon demand, disciplinary proceedings of judges and members of tribunals decided less than one year ago;
VI— preparing a statistical report each semester on the cases and judgments entered, by unit of the Federation, by the different organs of the Judiciary;
VII— preparing an annual report that proposes the measures it deems necessary with respect to the situation of the Judiciary in the Country and the activities of the Council. This report should be part of the message of the President of the Supreme Federal Tribunal sent to the National Congress on the occasion of opening of the legislative session.
§ 5º. The Minister from the Superior Tribunal of Justice shall exercise the function of Supervising Minister and shall be excluded from distribution of the Tribunal’s cases. In addition to the powers conferred upon him or her by the Statute of the Judicature, he or she is responsible for the following:
I— receiving complaints and denunciations from any interested person relating to judges and judicial services;
II— exercising executive functions of the Council as to general inspection and correction;
III— requisitioning and designating judges, delegating powers to them, and requisitioning employees of judges or tribunals, including those of the States, Federal District, and the Territories.
§ 6º. The Procurator-General of the Republic and the President of the Federal Council of the Brazilian Bar Association shall officiate at the Council.
§ 7º. The Union, including the Federal District and its Territories, shall create judicial grievance centers with jurisdiction to receive complaints and denunciations from any interested person against members or bodies of the Judiciary, or against their auxiliary services, reporting directly to the National Council of Justice.
Section III Superior Tribunal of Justice
Sole Paragraph. The Ministers of the Superior Tribunal of Justice shall be appointed by the President of the Republic, from Brazilians over thirty-five and under sixty-five years of age, with notable legal knowledge and unblemished reputations, upon approval by an absolute majority of the Federal Senate, with:210
I— one-third from the judges of the Federal Regional Tribunals and one-third from the magistrates of the Tribunals of Justice, nominated in a list of three names drawn up by the Tribunal itself;
II— one-third, in equal parts, from the lawyers and members of the Federal, State, Federal District, and Territorial Public Ministries, selected alternately, as set out in art. 94.
The Superior Tribunal of Justice has the power:
I— to hear and to decide as a matter of original jurisdiction:
a) for common crimes, the Governors of the States and Federal District; for common crimes and impeachable offenses, justices of the Tribunals of Justice of the States and Federal District, members of Tribunals of Accounts of the States and Federal District, members of the Federal Regional Tribunals, Regional Electoral and Labor Tribunals, members of the Councils or Tribunals of Accounts of the Counties, and the members of the Public Ministry of the Union acting before the tribunals;
b) writs of security and habeas data against the acts of a Minister of the Union, the Commanders of the Navy, Army and Air Force,211 or the Tribunal itself;
c) habeas corpus, when the constraining party or the constrained party is any person mentioned in subpart a, or when the constraining party is a tribunal subject to its jurisdiction, a Minister of the Union, or a Commander of the Navy, Army or Air Force, with the exception of the jurisdiction of the Electoral Tribunals;212
d) jurisdictional conflicts between any tribunals, except as provided in art. 102, I, o, as well as between a tribunal and judges not subordinated to it, and between judges subordinated to different tribunals;
e) criminal revisions and rescissory actions from its own decisions;
f) claims to preserve its jurisdiction and guarantee the authority of its decisions;
g) conflicts of authority between administrative and judicial authorities of the Union, or between judicial authorities of one State and administrative authorities of another State or the Federal District, or between those of the latter and those of the Union;
h) mandates of injunction when preparation of the regulatory rule is the responsibility of a federal agency, entity or authority of direct or indirect administration, with the exception of cases falling under the jurisdiction of the Supreme Federal Tribunal and the organs of Military Justice, Electoral Courts, Labor Courts and Federal Courts;
i) recognition (homologation) of foreign judgments and concession of requests for letters rogatory (exequatur);213
II— to decide on ordinary appeal:
a) denials of habeas corpus decided in sole or last instance by the Federal Regional Tribunals or by the tribunals of the States, Federal District, and Territories;
b) denials of writs of security decided originally by the Federal Regional Tribunals or by Tribunals of the States, Federal District and Territories;
c) cases in which the parties on one side are a foreign State or an international organization, and, on the other side, a County or a person resident or domiciled in the Country;
III— to decide on special appeal cases decided, in sole or last instance, by the Federal Regional Tribunals or by Tribunals of the States, Federal District and Territories, when the appealed decision:
a) is contrary to a treaty or federal law, or denies the effectiveness thereof;
b) upholds an [ … ] act of a local government challenged as contrary to federal law;214
c) interprets federal law differently from another tribunal.
Sole Paragraph. The following shall operate together with the Superior Tribunal of Justice:
I— the National School for Formation and Improvement of Judges, with responsibility, among other functions, for regulating official courses for entry and promotion in the career;
II— the Council of Federal Justice, with responsibility for exercising, as provided by law, administrative and budgetary supervision of Federal Justice in the first and second instances, as the central body in the system, with disciplinary powers, whose decisions shall have binding effects.215
Section IV Federal Regional Tribunals and Federal Judges
The following are components of the Federal Courts:
I— Federal Regional Tribunals;
II— Federal Judges;
Federal Regional Tribunals consist of at least seven judges, recruited, whenever possible, from their respective regions and appointed by the President of the Republic from Brazilians over thirty and under sixty-five years of age, with:
I— one-fifth from lawyers with more than ten years of actual professional activity and members of the Federal Public Ministry with more than ten years of career service;
II— the remainder through promotion of federal judges with more than five years of service, alternating between seniority and merit.
§ 1º. A law shall regulate removal or transfer of judges of the Federal Regional Tribunals and determine their jurisdiction and place to sit.
§ 2º. The Federal Regional Tribunals shall set up itinerant courts, which shall hold hearings and other jurisdictional functions within the territorial limits of their respective jurisdictions, utilizing public and community facilities.
§ 3º. The Federal Regional Tribunals may function in a decentralized fashion, constituting regional Chambers, in order to assure full access to justice at all phases of judicial proceedings.216
The Federal Regional Tribunals have power:
I— to hear and to decide as a matter of original jurisdiction:
a) for common crimes and impeachable offenses, federal judges from the area of their jurisdiction, including those of the Military and Labor Courts, as well as members of the Public Ministry of the Union, except for the jurisdiction of the Electoral Courts;
b) criminal revisions and rescissory actions from their own decisions and from those of federal judges of the region;
c) writs of security and habeas data against an act of the Tribunal itself or a federal judge;
d) habeas corpus, when the constraining authority is a federal judge;
e) jurisdictional conflicts between federal judges subordinated to the Tribunal;
II— to determine on appeal cases decided by federal judges and state judges exercising federal jurisdiction within the area of their jurisdiction.
The federal judges have the power to hear and to decide:
I— cases in which the Union, an autarchy or a federal public company has an interest as plaintiffs, defendants, privies, or intervenors, except for bankruptcy, work-related accidents and those subject to the Electoral and Labor Courts;
II— cases between a foreign State or international organization and a County or person domiciled or resident in Brazil;
III— cases based on a treaty or a contract of the Union with a foreign State or international organization;
IV— political crimes and criminal offenses detrimental to property, services or interests of the Union or its autarchies or public companies, excluding minor offenses (contravenções) and cases within the jurisdiction of the Military and Electoral Courts;
V— crimes covered in international treaties or conventions, when their commission has begun in the Country and their results have to take place or should have taken place abroad, or reciprocally;
VI— crimes against organization of labor and, in cases determined by law, against the financial system and the economic and financial order;
VII— writs of habeas corpus, in criminal matters subject to their jurisdiction or when the constraint stems from an authority whose acts are not directly subject to another jurisdiction;
VIII— writs of security and habeas data against an act of a federal authority, except for those cases subject to the jurisdiction of the federal tribunals;
IX— crimes committed aboard ships or aircraft, except for those subject to the jurisdiction of the Military Courts;
X— crimes of a foreigner’s irregular entry or stay, execution of letters rogatory after exequatur, enforcement of foreign court decisions after homologation, cases relating to nationality, including the respective options and naturalization;
XI— disputes over indigenous rights.
§ 1°. Cases in which the Union is the plaintiff shall be brought in the judicial section where the other party is domiciled.
§ 2°. Cases against the Union may be brought in the judicial section of the plaintiff’s domicile, where the act or fact causing the complaint occurred, or where the thing causing the complaint is situated or in the Federal District.
§ 3°. Cases in which the parties are a social security institution and its beneficiary, but no federal judge sits in the district, shall be tried and decided in the forum of the state court of the domicile of the insured or the beneficiary; the law may permit other cases to be tried and adjudicated in state courts.
§ 4°. In the case of the preceding paragraph, the appeal that may be taken shall always be to the Federal Regional Tribunal in the jurisdictional area of the judge of the first instance.
§ 5°. In cases of grave violations of human rights, for purposes of assuring compliance with obligations stemming from international human rights treaties to which Brazil is a party, the Procurator-General of the Republic shall suggest to the Superior Tribunal of Justice, at any phase of inquiry or proceeding, removal to the jurisdiction of the Federal Courts.218
Each State, as well as the Federal District, shall constitute a judicial section, which shall sit in the respective Capital, with courts of the first instance located as established by law.
Section V Labor Tribunals and Labor Judges
The Labor Court System consists of:
I— the Superior Labor Tribunal;
II— Regional Labor Tribunals;
III— Labor Judges.219
§ 3°.— [repealed].222
Art. 111-A 223.
The Superior Labor Tribunal shall be composed of twenty-seven Ministers, chosen among Brazilians between thirty-five and sixty-five years of age, nominated by the President of the Republic, after approval by an absolute majority of the Federal Senate, with;
I— one-fifth from lawyers with more than ten years of effective professional activity and members of the Public Labor Ministry with more than ten years of effective service, observing the provisions of art. 94;
II— the remainder from career judges of the Regional Labor Tribunals, indicated by the Superior Tribunal itself.
§ 2º. The following shall function together with the Superior Labor Tribunal:
I— the National School for the Formation and Improvement of Labor Judges, which, among other functions, shall be responsible for regulating official courses for entry and promotion in the career;
II— the Superior Council of Labor Justice, as the central body of the system, which shall be responsible for performing administrative, budgetary, financial and patrimonial supervision of Labor Justice in the first and second instances, as provided by law. The Council’s decisions shall have binding effects.
The law shall create Labor Courts. In districts not included within their jurisdiction, the law may confer this jurisdiction on state court judges, with an appeal to the respective Regional Labor Tribunal.224
The law shall provide for the constitution, investiture, jurisdiction, guarantees and conditions for performance for the organs of the Labor Courts [ … ].225
The Labor Court System has the power to hear and judge:
I— actions arising from labor relations, including foreign public law entities and those of direct and indirect public administration of the Union, States, Federal District and Counties;
II— actions involving exercise of the right to strike;
III— actions concerning syndical representation, between unions, between unions and workers, and between unions and employers;
IV— writs of security, habeas corpus and habeas data, when the challenged act involves matters subject to its jurisdiction;
V— jurisdictional conflicts among bodies with labor jurisdiction, except for the provision of art. 102, I, o;
VI— indemnification actions for moral or patrimonial damages stemming from labor relations;
VII— actions relating to administrative penalties imposed upon employers by bodies supervising labor relations;
IX— other controversies stemming from labor relations, as provided by law.226
§ 2º. If one party refuses collective bargaining or arbitration, the parties, by common accord, may file an economic collective labor dispute. This conflict may be decided by the Labor Courts, respecting the minimum legal provisions for protection of labor, as well as those previously agreed upon.
§ 3º. In case of a strike in an essential activity, with the possibility of injury to the public interest, the Public Labor Ministry shall bring a collective labor dispute, with the Labor Courts having jurisdiction to decide the conflict.227
The Regional Labor Tribunals shall be composed of a minimum of seven judges recruited, when possible, from the respective region and appointed by the President of the Republic from Brazilians between thirty and sixty-five years of age, with:
I— one-fifth from lawyers with more than ten years of effective professional activity and members of the Public Labor Ministry with more than ten years of effective service, observing the provision in art. 94;
II— the others, through promotion of labor judges, alternately by seniority and merit.228
§ 1º. The Regional Labor Tribunals shall install an itinerant justice, holding hearings and other jurisdictional functions within the territorial limits of their respective jurisdictions, utilizing public and community facilities.
§ 2º. The Regional Labor Tribunals may function in a decentralized manner, constituting regionalized Chambers to assure full jurisdictional access to justice at all phases of the proceedings.229
Sole Paragraph. [Repealed].230
Section VI Electoral Tribunals and Judges
The Electoral Justice System consists of:
I— the Superior Electoral Tribunal;
II— the Regional Electoral Tribunals;
III— the Electoral Judges;
IV— the Electoral Boards.
The Superior Electoral Tribunal shall be composed of at least seven members, chosen:
I— through election, by secret ballot, with:
a) three judges from among the Ministers of the Supreme Federal Tribunal;
b) two judges from among the Ministers of the Superior Tribunal of Justice;
II— by appointment of the President of the Republic, two judges from six lawyers of notable legal knowledge and good moral character, indicated by the Supreme Federal Tribunal.
§ 1°. The Regional Electoral Tribunals shall be formed:
I— through election, by secret ballot:
a) of two judges from the justices of the Tribunals of Justice;
b) of two judges from the state courts, chosen by the Tribunal of Justice;
II— by one judge of the Federal Regional Tribunal that sits in the Capital of the State or Federal District, or in the absence thereof, by a federal judge chosen in any case by the respective Federal Regional Tribunal;
III— by two judges appointed by the President of the Republic from six lawyers of notable legal knowledge and good moral character, nominated by the Tribunal of Justice.
The organization and jurisdiction of the electoral tribunals, state court judges and electoral boards shall be provided for by complementary law.
§ 1°. The members of the tribunals, the state court judges and the members of the electoral boards, while exercising their functions and to the extent applicable to them, shall enjoy full guarantees and shall be non-removable.
§ 2°. Except for a valid reason, judges of the electoral tribunals shall serve for at least two years and never for more than two consecutive two-year periods, and their alternates shall be chosen at the same time and through the same procedure, in equal numbers for each category.
§ 3°. Decisions of the Superior Electoral Tribunal are not appealable, with the exception of those contrary to this Constitution and those denying habeas corpus or a writ of security.
§ 4°. Decisions of the Regional Electoral Tribunals may only be appealed when:
I— they contravene an express provision of this Constitution or law;
II— a divergence exists in the interpretation of a law between two or more electoral courts;
III— they deal with ineligibility or issuance of certificates of election in federal or state elections;
IV— they annul certificates of election or decree the loss of federal or state elective offices;
V— they deny habeas corpus, writ of security, habeas data or a mandate of injunction.
Section VII Military Courts and Military Judges
The Military Justice System consists of:
I— the Superior Military Tribunal;
II— the Military Tribunals and Military Judges instituted by law.
The Superior Military Tribunal shall be composed of fifteen Ministers with life tenure, appointed by the President of the Republic after approval of their nominations by the Federal Senate, with three from admirals of the Navy, four from generals of the Army, three from generals of the Air Force, all in active service and in the highest career rank, and with five from among civilians.
Sole Paragraph. The civilian Ministers shall be chosen by the President of the Republic from Brazilians more than thirty-five years old, with:
I— three from lawyers of notable legal knowledge and unblemished conduct, with more than ten years of actual professional activity;
II— two, by equal choice, from military judges and members of the Military Public Ministry.
Section VIII State Tribunals and Judges
The States shall organize their Justice Systems, observing the principles established in this Constitution.
§ 1°. The jurisdiction of the courts shall be defined in the State Constitution, and the law of judicial organization shall be proposed by the Tribunal of Justice.
§ 2°. The States have the power to institute an action of unconstitutionality of state or county laws or normative acts contrary to the State Constitution, conferral of standing to act on only one agency being prohibited.
§ 3°. By proposal of the Tribunal of Justice, a state law may create a state Military Justice System, which shall consist at the first instance of state court judges and Councils of Justice, and at the second instance of the Tribunal of Justice itself, or a Tribunal of a Military Justice in those States in which the effective military [ … ] number more than twenty thousand members.232
§ 4°. State Military Justice shall have jurisdiction to charge and to try members of the State military […] for military crimes defined by law and in judicial actions against acts of military discipline, preserving the jurisdiction of the jury when the victim is a civilian. It shall be the responsibility of the appropriate court to decide upon loss of post, loss of rank of officers and loss of grade of servicemen.
§ 5°. State court judges in the military courts shall have jurisdiction to charge and to judge by themselves military crimes committed against civilians and judicial actions against acts of military disciplinary. It is the responsibility of the Council of Justice, under the presidency of a state court judge, to charge and to judge other military crimes.
§ 6°. The Tribunal of Justice shall operate in a decentralized fashion, constituting regional Chambers, in order to assure full access to justice at all phases of proceedings.
§ 7°. The Tribunal of Justice shall install an itinerant justice, holding hearings and other jurisdictional functions within the territorial limits of its respective jurisdiction, utilizing public and community facilities.233
In order to decide rural land conflicts, the Tribunal of Justice shall propose creation of specialized courts, with exclusive jurisdiction over agrarian questions.234
Chapter IV Positions Essential to Justice
Section I The Public Ministry
The Public Ministry is a permanent institution, essential to the jurisdictional function of the State, with responsibility for defending the legal order, the democratic regime and indispensable social and individual interests.
§ 1°. Unity, indivisibility and functional independence are institutional principles of the Public Ministry.
§ 2°. The Public Ministry is assured functional and administrative autonomy. Observing the provisions of art. 169, it may propose to the Legislature creation and abolition of its positions and auxiliary services; filling them through competitive public examinations, or such examinations and comparison of professional credentials; remuneration policy and career plans.235 The law shall provide for its organization and operation.
§ 3°. The Public Ministry shall draw up its budgetary proposal within the limits established in the law of budgetary directives.
§ 4°. If the Public Ministry does not deliver its respective budgetary proposal within the period established in the law of budgetary directives, the Executive shall consider, for purposes of consolidation of the annual budgetary proposal, the amounts approved in the current budgetary law, adjusted in accordance with the limits set out in the form of § 3°.
§ 5°. If the budgetary proposal referred to in this article is delivered in disregard of the limits set forth in § 3°, the Executive shall proceed with necessary adjustments in order to consolidate the annual budgetary proposal.
§ 6°. During execution of the budget for the current fiscal year, no expenditures or assumption of obligations that exceed the limits established in the law of budgetary directives shall be realized by opening supplemental or special credits, unless previously authorized.236
The Public Ministry includes:
I— the Public Ministry of the Union, which consists of:
a) the Federal Public Ministry;
b) the Labor Public Ministry;
c) the Military Public Ministry;
d) the Public Ministry of the Federal District and Territories;
II— the Public Ministries of the States.
§ 1°. The head of the Public Ministry of the Union is the Procurator-General of the Republic, appointed by the President of the Republic from career members over thirty-five years of age, after approval by an absolute majority of the members of the Federal Senate, for a term of office of two years. Re-appointment is permitted.
§ 2°. The Procurator-General of the Republic can be removed from office, on the initiative of the President of the Republic, subject to prior authorization of an absolute majority of the Federal Senate.
§ 3°. The Public Ministry of the States, Federal District and Territories shall make up a list of three names from career members, in the form of the respective law, for selection of their Procurators-General, who shall be appointed by Heads of the Executive Branch for a term of office of two years, permitting one reappointment.
§ 4°. The Procurators-General of the States and of the Federal District and Territories may be removed from office by an absolute majority of the Legislature, under the terms of a respective complementary law.
§ 5°. Complementary laws of the Union and States, which may be proposed by the respective Procurators-General, shall establish the organization, powers and by-laws of each Public Ministry, observing with respect to their members:237
I— the following guarantees:
a) life tenure after two years in office, capable of losing their positions only by a court judgment that has become final and unappealable;
b) non-transferability, except by reason of public interest, through a decision of the appropriate collegiate body of the Public Ministry, by an absolute majority238 vote of its members, assuring a full defense;
II— the following prohibitions:
a) receiving, on any account and under any pretext, fees, percentages or court costs;
b) practicing law;
c) participating in a commercial company, as provided by law;
d) performing, even when on leave, any other public function except teaching;
e) engaging in political [ … ] party activities [ … ];240
f) receiving assistance or contributions from individuals or public or private entities under any title or pretext, except as provided by law.
§ 6°. The provision of art. 95, sole paragraph, V, applies to members of the Public Ministry.241
The institutional functions of the Public Ministry are:
I— the exclusive power to bring public criminal prosecutions, as provided by law.
II— to safeguard effective respect by the Government and services of public relevance for rights protected by this Constitution, taking the necessary action to guarantee such rights;
III— to institute civil investigations and public civil actions to protect the public and social patrimony, the environment and other diffuse and collective interests;
IV— to institute direct actions of unconstitutionality or representation for purposes of intervention by the Union and States, in cases set out in this Constitution;
V— to defend judicially the rights and interests of indigenous populations;
VI— to issue notices in administrative procedures under its jurisdiction, requesting information and documents to guide them, as provided by the respective complementary law;
VII— to exercise external control over police activities, as provided by the complementary law mentioned in the preceding article;
VIII— to request investigations and institution of police investigations, indicating the legal basis for its procedural acts;
IX— to perform other functions conferred upon it, so long as they are compatible with its purpose, prohibiting judicial representation and legal advice to public entities;
§ 1°. The standing of the Public Ministry to bring civil actions provided for in this article shall not preclude standing of third parties in the same cases, as provided in this Constitution and by law.
§ 2°. Functions of the Public Ministry may only be performed by career personnel, who must reside in the judicial district of their respective assignments, except with the authorization of the head of the institution.
§ 3°. Entry into the Public Ministry career shall take place by means of public competitive examinations and comparison of professional credentials, assuring participation of the Brazilian Bar Association in such competition, and shall require a law degree and a minimum of three years of legal activities, observing the order of classification for appointments.
§ 4°. Where appropriate, the provisions of art. 93 [ … ] apply to the Public Ministry.242
§ 5°. Distribution of cases in the Public Ministry shall be immediate.243
Provisions of this section relating to rights, prohibitions and form of investiture apply to members of the Public Ministry attached to Tribunals of Accounts.
Art. 130-A. 244
The National Council of the Public Ministry shall consist of fourteen members appointed by the President of the Republic, after approval by an absolute majority of the Federal Senate, for a term of office of two years, permitting one additional term. It is made up by:
I— the Procurator-General of the Republic, who shall preside;
II— four members of the Union’s Public Ministry, assuring representation to each of its careers;
III— three members of the State Public Ministries;
IV— two judges, one selected by the Supreme Federal Tribunal and the other by the Superior Tribunal of Justice;
V— two lawyers appointed by the Federal Council of the Brazilian Bar Association;
VI— two citizens of notable legal knowledge and unblemished reputation, one selected by the Federal Chamber of Deputies and the other by the Federal Senate.
§ 1º. Members of the Council coming from the Public Ministry shall be appointed by the respective Public Ministries, as provided by law.
§ 2º. The National Council of the Public Ministry shall be responsible for control of the administrative and financial functioning of the Public Ministry and performance of its members’ functional duties. It is responsible for:
I— preserving the functional and administrative autonomy of the Public Ministry, being able to issue regulamentary acts in its area of jurisdiction, or to recommend measures;
II— observing art. 37 and appreciating, ex officio or upon demand, the legality of administrative acts practiced by members or organs of the Public Ministries of the Union and States. The National Council can vacate or revise these acts, or fix a period in which necessary measures for precise performance of the law shall be adopted, without prejudice to the jurisdiction of the Tribunals of Accounts;
III— receiving and hearing complaints against members or organs of the Public Ministry of the Union and the States, including against their auxiliary services, without prejudice to the disciplinary and correctional jurisdiction of the institution. The National Council may assume jurisdiction over ongoing disciplinary proceedings to determine removal, leave or retirement with salary or benefits proportional to time of service and to apply other administrative sanctions, assuring a full defense;
IV— revising, ex officio or upon demand, disciplinary proceedings of members of the Public Ministry of the Union or the States decided less than one year ago;
V— preparing an annual report proposing measures that it deems necessary with respect to the situation of the Public Ministry in the Country and the activities of the Council, which shall be part of the message provided for in art. 84, XI.
§ 3º. By secret ballot the Council shall choose a National Supervisor from among members of the Public Ministry to which it is a part. Reelection is prohibited. He shall have the following responsibilities, in addition to the powers conferred upon him or her by law:
I— to receive complaints and denunciations, from any interested person, with respect to members of the Public Ministry and its auxiliary services;
II— to perform executive functions of the Council with respect to general inspection supervision;
III— to requisition and to designate members of the Public Ministry, delegating powers to them, and to requisition employees of organs of the Public Ministry.
§ 4º. The President of the Federal Council of the Brazilian Bar Association shall officiate at the Council.
§ 5º. State and Federal laws shall create grievance centers for the Public Ministry, competent to hear complaints and denunciations by any interested person against members or organs of the Public Ministry, including against their auxiliary services, presenting them directly to the National Council of the Public Ministry.
Section II Public Advocacy245
The Advocacy-General of the Union is the institution that, either directly or through a subordinated agency, represents the Union, both judicially and extra-judicially. Under the terms of a complementary law providing for its organization and operations, it is responsible for the activities of legal consultation and counseling to the Executive.
§ 1°. The head of the Advocacy-General of the Union is the Advocate-General of the Union, freely appointed by the President of the Republic from among citizens over thirty-five years of age, of notable legal knowledge and unblemished reputation.
§ 2°. Entry into initial phases of the career of the institution referred to in this article shall be by competitive public examinations and comparison of professional credentials.
The Procurators of the States and the Federal District, career positions into which admission depends upon public competitive examinations and professional credentials, with participation by the Brazilian Bar Association in all phases, shall provide judicial representation and legal counseling to their respective federative units.
Sole paragraph. Procurators referred to in this article are assured tenure after three years of actual service, through performance evaluation by their own agencies, after a corroborating report from supervising judges.246
Section III The Practice of Law and the Public Defender’s Office
Lawyers are indispensable to the administration of justice, and they are immune for their acts and manifestations in the practice of their profession, within the limits of the law.
The Public Defender’s Office is an institution essential to the State’s jurisdictional function, and it shall be responsible for providing legal advice to the needy and defending them at all levels, as set out in art. 5, LXXIV.
§ 1°. A complementary law shall organize the Public Defender’s Office of the Union and of the Federal District and Territories and prescribe general rules for its organization in the States, with career positions, filled at the entry level through public competitive examinations and comparison of professional credentials, assuring its members the guarantee of non-transferability and prohibiting practice of law outside their institutional duties.247
§ 2°. State Public Defenders are assured functional and administrative autonomy and the right to initiate their own budget proposal within the limits established in the law of budgetary directives, subject to the provisions of art. 99, §2º.248
Title V Defense of the State and Democratic Institutions
Chapter I State of Defense and State of Siege
Section I State of Defense
After hearing from the Council of the Republic and the National Defense Council, the President of the Republic may decree a state of defense in specific restricted locations to preserve or promptly re-establish public order or social peace threatened by grave and imminent institutional instability or affected by large scale natural calamities.
§ 1°. The decree instituting a state of defense shall determine the period of its duration, specify the areas affected and indicate, within the terms and limits of the law, which of the following coercive measures will be in force:
I— restrictions on rights of:
a) assembly, even when held within associations;
b) secrecy of correspondence;
c) secrecy of telegraph and telephone communication;
II— occupation and temporary use of public property and services in the event of a public calamity, with the Union being liable for the resulting damages and costs.
§ 2°. The state of defense may not exceed thirty days, and it may be extended once for an identical period if the reasons justifying the respective decree persist.
§ 3°. When a state of defense is in force:
I— imprisonment for a crime against the State, determined by the party executing the measure, shall be communicated immediately by such party to the proper judge, who shall release the prisoner if the imprisonment is illegal; the prisoner may request examination of the corpus delicti from the police authority;
II— the communication shall be accompanied by a statement by the authority as to the physical and mental state of the detainee at the time of arrest;
III— no person shall be imprisoned or detained for more than ten days, unless authorized by the Judiciary;
IV— maintaining a prisoner incommunicado is prohibited.
§ 4°. When a state of defense has been decreed or extended, the President of the Republic shall submit the act with its respective justification within twenty-four hours to the National Congress, which shall decide on it by absolute majority.
§ 6°. The National Congress shall examine the decree within ten days of its receipt, and shall continue functioning while the state of defense is in force.
Section II State of Siege
After having heard from the Council of the Republic and the National Defense Council, the President of the Republic may request authorization from the National Congress to decree a state of siege in the event of:
I— a serious disturbance with national effects or occurrence of events that show the ineffectiveness of a measure taken during the state of defense;
II— declaration of state of war or response to foreign armed aggression.
The decree of a state of siege shall indicate the period of its duration, the rules required to implement it and the constitutional guarantees that are to be suspended. After publication, the President of the Republic shall designate the executor of the specific measures and the affected areas.
§ 1°. In the case of art. 137, I, a state of siege may not be decreed for more than thirty days, nor may each prolongation exceed a like period; in the case of subparagraph II, a state of siege may be decreed for the entire period of war or foreign aggression.
§ 2°. If authorization to decree a state of siege is requested during a legislative recess, the President of the Federal Senate shall immediately convoke the National Congress to meet within five days in extraordinary session in order to consider the act.
When a state of siege decreed under art. 137, I, is in effect, only the following measures may be taken against individuals:
I— obligation to remain in a determined place;
II— detention in a building not destined for persons accused or convicted of common crimes;
III— restrictions regarding inviolability of correspondence, secrecy of communications, providing information and freedom of press, radio broadcasting and television, as provided by law;
IV— suspension of freedom of assembly;
V— search and seizure in one’s domicile;
VI— intervention in public utility companies;
VII— requisitioning of property.
Sole Paragraph. Broadcasting pronouncements made by legislators in their Legislative Chambers, if authorized by the respective Executive Committee, is not included in the restrictions of subparagraph III.
Section III General Provisions
After hearing from party leaders, the Executive Committee of the National Congress shall designate a Committee composed of five of its members to monitor and supervise implementation of measures concerning a state of defense and state of siege.
When the state of defense or state of siege ceases, its effects shall also cease, without prejudice to liability for unlawful acts committed by its executors or agents.
Sole Paragraph. As soon as the state of defense or state of siege ceases, the measures applied during the period it was in force shall be reported by the President of the Republic in a message to the National Congress, specifying and justifying the actions taken, listing the names of those affected and indicating the restrictions applied.
Chapter II Armed Forces
The Armed Forces, made up of the Navy, Army and Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and intended to defend the Nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order.
§ 1°. A complementary law shall set out the general rules to be adopted for the organization, training and use of the Armed Forces.
§ 3°. Members of the Armed Forces are called the military, applying to them, as well as what comes to be provided by law, the following provisions:
I— ranks with the prerogatives, rights and duties inherent to them, are conferred by the President of the Republic and assured fully to active, reserve or retired officers, who shall have exclusive rights to military titles, posts, and jointly with other members, use of the uniforms of the Armed Forces;
II— a member of the military in active service who accepts a permanent civil service position or employment, except for the possibility provided for in art. 37, subparagraph XVI, line “c”, shall be transferred to the reserves, as provided by law;
III— a member of the military in active service who, as provided by law, assumes a temporary non-elective public office, employment, or position, even in the indirect administration, except for the possibility provided for in art. 37, subparagraph XVI, line “c”,251 shall remain part of his respective staff. So long as he remains in this situation, he may be promoted only through seniority, and his period of service shall be counted only for that promotion and transfer to the reserves. After two years away from active service, whether continuous or not, he shall be transferred to the reserves, as provided by law;
IV— military servicemen are prohibited from forming unions and striking;
V— while in active service, military servicemen may not be affiliated with political parties;
VI— an officer shall loose his position and rank only if adjudged unworthy or incompatible with being an officer, by a decision of a permanent military tribunal in peacetime or a special tribunal in wartime;
VII— an officer convicted in the ordinary or military courts and sentenced to imprisonment for more than two years by a final and non-appealable decision shall be submitted to the sentence provided for in the preceding paragraph;
VIII— the provisions of art. 7, subparagraphs VIII, XII, XVII, XVIII, XIX and XXV and of art. 37, subparagraphs XI, XIII, XIV and XV, apply to military servicemen, as provided by law, and with prevalence of military activity under art. 27, subparagraph XVI, line “c”;252
X— the law shall provide for entry into the Armed Services, age limits, tenure and other conditions for transfer of servicemen into inactivity, rights, responsibilities, compensation, prerogatives and other special situations of the military, considering the peculiarities of their activity, including those performed by force of international agreements and war.254
Military service is compulsory as provided by law.255
§ 1°. The Armed Forces shall have the power, as provided by law, to assign alternative service in peacetime to those who, after enlistment, allege that they are conscientious objectors, understood as having objections based on religious beliefs and philosophical or political convictions for exemption from activities of an essentially military character.
Chapter III Public Security
Public security, the duty of the State and the right and responsibility of all, is exercised for preservation of public order and security of persons and property, by means of the following agencies:
I— federal police;
II— federal highway police;
III— federal railway police;
IV— civilian police;
V— military police and military fire brigades.
§ 1°. The federal police, created by law as a permanent body, organized and maintained by the Union, structured into a career, is designed:256
I— to detect criminal offenses against the political and social order or detrimental to property, services and interests of the Union, its autarchies and its public enterprises, as well as other offenses with interstate or international repercussions, requiring uniform repression according to law;
II— to prevent and repress illegal traffic in narcotics and similar drugs, contraband and smuggling, without prejudice to action by the treasury and other government agencies in their respective areas of jurisdiction;
III— to perform the functions of maritime, airport257 and border police;
IV— to perform exclusively the functions of judicial police of the Union.
§ 2°. The federal highway police is a permanent body, organized and maintained by the Union, structured into a career and designed to patrol the federal highways openly, as provided by law.
§ 3°. The federal railway police, a permanent body, organized and maintained by the Union,258 structured into a career and designed to patrol the federal railways openly, as provided by law.
§ 4°. Excluding the jurisdiction of the Union, the civil police, directed by career police chiefs, has the duty to act as judicial police and to investigate criminal offenses, with the exception of military offenses.
§ 5°. The military police is responsible for ostensively policing and preserving public order; the military firemen, in addition to the duties defined by law, are responsible for carrying out activities of civil defense.
§ 6°. The military police and firemen, auxiliary forces and the Army reserves, together with the civilian police, are under the control of the Governors of the State, Federal District and Territories.
§ 7°. The law shall regulate the organization and operation of the agencies responsible for public security in such manner as to guarantee the efficiency of their activities.
§ 8°. The Counties may organize county guards in order to protect county property, services and facilities, as provided by law.
Title VI Taxation and Budget
Chapter I National Tributary System
Section I General Principles
The Union, States, Federal District and Counties may levy the following tributes:
II— fees, by virtue of exercise of police power or for effective or potential use of specific and divisible public services provided to taxpayers or made available to them;
III— assessments for public works.
§ 1°. Whenever possible, taxes shall be personal and shall vary with the economic capacity of the taxpayer. To make these objectives effective, the tax administration may identify the patrimony, income and economic activities of the taxpayer, respecting individual rights, as provided by law.
A complementary law shall:
I— deal with conflicts of taxing power among the Union, States, Federal District and Counties;
II— regulate the constitutional limitations on the taxing power;
III— establish general rules for tax legislation, particularly as to:
a) definition of tributes and their types, as well as, with respect to taxes specified in this Constitution, the definition of the respective taxable events, basis for calculation and taxpayers;
b) tax liability, assessment, credit, limitations periods and laches;
c) adequate tax treatment for the cooperative acts performed by cooperative entities;
d) definition of differentiated and favored treatment for micro-firms and small firms, including special or simplified regimes for the tax provided for in art 155, II; the assessments provided for in art. 195, I and §§ 12° and 13°; and the assessments referred to in art. 239.
Sole paragraph. The complementary law referred to with in subparagraph III, d, shall also institute a unified regime for collection of taxes and assessments of the Union, States, Federal District and Counties, observing that:
I— it shall be optional for the taxpayer;
II— a State may establish conditions for differentiated enrollment;
III— collection shall be unified and centralized, and distribution of the shares of funds belonging to the respective federative entities shall be immediate, prohibiting any retention or conditioning;
IV— collection, supervision and levying may be divided by the federative entities, adapting a unified national roll of taxpayers.260
In order to prevent competitive disequilibria, a complementary law may provide for special tax criteria, without prejudice to the Union’s power to establish by law rules for the same purpose.261
In federal territories, the Union has the power to levy state taxes and, if the territory is not divided into counties, county taxes as well. The Federal District has the power to impose county taxes.
The Union, through a complementary law, may impose compulsory loans:
I— to defray extraordinary expenditures resulting from public calamity, foreign war or imminence thereof;
II— in the event of a public investment of urgent character and relevant national interest, observing the provisions of art. 150, III, b.
The Union has the exclusive power to institute social contributions, an assessment for intervention in the economic domain, and assessments in the interest of professional or economic categories, as instruments of its activity in the respective areas, observing the provisions of arts. 146, III, and 150, I and III, and without prejudice to the provisions of art. 195, § 6°, with respect to the assessments mentioned in that provision.
§ 1°. The States, the Federal District, and Counties may institute a contribution, collected from their employees, for funding their social security regime referred to in art. 40, at a rate not less than the contribution of civil servants holding effective positions in the Union.262
§ 2°. The social assessments and the assessment for intervention in the economic domain referred to in the heading of this article:
I— shall not be levied on export proceeds;263
II— shall also be levied on the importation of foreign products or services;264
III— the rates may be:
a) ad valorem, based upon the invoice, gross receipts or the value of the transaction and, in the case of imports, the customs value;
b) specific, based upon the unit of measure adopted.
§ 3°. An individual importer may be treated as the equivalent of a legal entity, as provided by law.
§ 4°. The law shall define the situations in which assessments are incurred only once.265
Sole Paragraph. The assessment referred to in the heading may be assessed on the bill for consumption of electric energy.266
Section II Limitations on the Taxing Power
Without prejudice to other guarantees assured the taxpayer, the Union, States, Federal District and Counties are prohibited from:
I— imposing or increasing a tax without a law that does so;
II— instituting unequal treatment among taxpayers that are similarly situated, it being prohibited to make any distinction because of professional occupation or job performed by them, regardless of the legal denomination of income, securities or rights;
III— collecting taxes:
a) for taxable events that occurred before the law that instituted or increased them went into force;
b) in the same fiscal year in which the law that instituted or increased them was published;
IV— using taxes for purposes of confiscation;
V— establishing limitations on movement of persons or goods by means of interstate or inter-county taxes, except for collection of tolls for use of highways maintained by the Government;
VI— levying taxes on:
a) patrimony, income or services of one another;
b) temples of any religion;
c) patrimony, income or services of political parties, including their foundations, labor unions and non-profit educational and social assistance institutions, observing the requirements of the law;
d) books, newspapers, periodicals and paper intended for the printing thereof.
e) musical phonograms and video phonograms produced in Brazil containing musical or literary musical works by Brazilian authors and/or general works interpreted by Brazilian artists, as well as supporting materials or digital archives which contain them, except in the phase of industrial replication of optical media for leisure reading.268
§ 1°. The prohibition of subparagraph III, b, does not apply to the taxes provided for in arts. 148, I; 153, I, II, IV and V; and 154, II; and the prohibition of subparagraph III, c, does not apply to the taxes provided for in arts. 148, I; 153, I, II, III and V; and 154, II, nor to the fixing of the basis of calculation for the taxes provided for in arts. 115, III; and 156, I.269
§ 2°. The prohibition contained in subparagraph VI, a, extends to autarchies and foundations instituted and maintained by the Government with respect to the patrimony, income and services connected with their essential purposes.
§ 3°. The prohibitions contained in subparagraph VI, a, and in the preceding paragraph do not apply to the patrimony, income and services connected with the exploitation of economic activities governed by the rules that apply to private ventures or to ventures in which users provide a counter performance or pay prices or tariffs, nor exempt one who has agreed to buy property from the obligation to pay the tax thereon.
§ 5°. The law shall determine measures for consumer clarification about taxes levied on goods and services.
§ 6°. Any subsidy or exemption, reduction in the basis of calculation, concession of a presumed credit, amnesty or remission involving taxes, fees or assessments, may be granted only through a specific Federal, State or County law that exclusively regulates the above enumerated matters or corresponding tax or assessment, without prejudice to the provisions of art. 155, § 2°, XII, g.
§ 7°. A law may impose liability upon the taxpayer for payment of a tax or assessment whose taxable event may occur afterwards, assuring the immediate and preferential restitution of the amount paid should the presumed taxable event not occur.270
The Union is forbidden:
I— to levy taxes that are not uniform throughout the entire national territory or that imply a distinction or preference in relation to a State, Federal District or County, to the detriment of another; however, fiscal incentives may be granted to promote balance in socio-economic development among different regions of the Country;
II— to tax income from public debt obligations of the States, Federal District and Counties, as well as the remuneration and benefits of the respective public agents, at higher levels than those fixed for its own obligations and agents;
III— to grant exemptions from taxes within the jurisdiction of the States, Federal District or Counties.
Section III Taxes of the Union
The Union has the power to levy taxes on:
I— importation of foreign products;
II— exportation to other countries of national or nationalized products;
III— income and earnings of any nature;
IV— industrialized products;
V— credit transactions, foreign exchange operations, insurance or transactions relating to negotiable instruments or securities;
VI— rural property;
VII— large fortunes, as provided in a complementary law.
§ 2°. The tax provided for in subparagraph III:
I— shall be based on criteria of generality, universality and progressiveness, as provided by law;
§ 3°. The tax provided for in subparagraph IV:
I— shall be selective, based on the essentiality of the product;
II— shall be noncumulative, with an offset against the tax owed on each transaction of the amount charged on previous transactions;
III— shall not be imposed on industrialized products destined for export.
IV— shall have a reduced impact on the acquisition of capital goods by the taxpayer, as provided by law.
§ 4°. The tax provided for in subparagraph VI of the heading:
I— shall be progressive and its rates shall be fixed in a manner that is a disincentive to the maintenance of unproductive properties;
I— shall not be levied on small rural properties, as defined by law, when worked by the owner if he or she owns no other real property;
§ 5°. Gold, when defined by law as a financial asset or instrument of foreign exchange, shall be subject exclusively to the tax mentioned in subparagraph V of the heading of this article, which shall be owed on the original transaction; the minimum rate shall be one percent, ensuring transference of the amount collected in the following terms:
I— thirty percent to the State, Federal District or Territory, depending on the origin;
II— seventy percent to the County of origin.
The Union may impose:
I— by means of a complementary law, taxes not listed in the preceding article, provided they are noncumulative and have a specific taxable event or basis of calculation other than those specified in this Constitution;
II— in the case of foreign war or its imminent threat, extraordinary taxes, whether or not included in its taxing power, which shall be gradually repealed when the causes for their creation cease.
Section IV State and Federal District Taxes
The States and the Federal District have the power to impose taxes on:
I— transfers causa mortis and donations of any property or rights;
II— transactions relating to circulation of goods and the performance of services of interstate and inter-county transportation and communications, even when the transactions and performance begin abroad;
III— ownership of automotive vehicles;
§ 1°. The tax provided for in subparagraph I:
I— can be imposed, with respect to real property and its respective rights, by the State or Federal District where the property is located;
II— can be imposed, with respect to personalty, securities and credit instruments, by the State or Federal District where the inventory or schedule is probated, or the domicile of the donor;
III— shall have its jurisdiction regulated by a complementary law;
a) if the donor is domiciled or resident abroad;
b) if the deceased was a foreign resident or domiciliary, owned property abroad or had an inventory probated abroad;
IV— shall have its maximum rates fixed by the Federal Senate.
I— it shall be noncumulative, with an offset against the tax owed on each transaction of circulation of goods or performance of services by the amount charged on the previous ones by the same State, by another State or by the Federal District;
II— exemption or non-incidence, unless the contrary is determined in legislation:
a) shall not imply a credit to offset the amount due on subsequent transactions or performances;
b) shall carry with it annulment of credits for prior transactions;
III— may be selective, depending upon the essentiality of the merchandise or services;
IV— a resolution of the Federal Senate, on the initiative of the President of the Republic or of one-third of the Senators, approved by an absolute majority of its members, shall set the rates applicable to interstate and export transactions and performances;
V— the Federal Senate may:
a) set minimum rates for internal transactions, by resolution on the initiative of one-third and approved by an absolute majority of its members;
b) fix maximum rates for the same transactions to resolve specific conflicts involving interests of States, by a resolution on the initiative of an absolute majority and approved by two-thirds of its members;
VI— unless there is a decision to the contrary by the States and the Federal District, under the terms of subparagraph XII, g, the intrastate rates on circulation of goods and performing of services may not be lower than those established for interstate transactions;
VII— for transactions and rendering of goods and services to a final consumer located in another State, whether or not such consumer is the taxpayer, the interstate rate, is adopted, and it shall be up to the State where the recipient is located to collect the difference between the State’s internal rate and the interstate rate;275
VIII— Liability for collection of the tax corresponding to the difference between the internal rate and the interstate rate dealt with in subparagraph VII shall be attributed to:
a) the recipient when the taxpayer;
b) the sender when the recipient is not the taxpayer;276
IX— shall also be imposed:
a) on the entry of goods or merchandise imported from abroad by an individual or a legal entity, even though not a habitual taxpayer, regardless of purpose, as well as on services performed abroad, the tax being allocated to the State where the domicile or establishment of the recipient of the merchandise, goods or services is located;277
b) on the total value of the transaction, when merchandise is furnished with services not included in the taxing power of the counties;
X— shall not be imposed:
a) on transactions transferring merchandise abroad, nor on services rendered to those abroad, assuring maintenance and utilization of the amount of tax collected in prior transactions and services;278
b) on transactions transferring to other States petroleum, including lubricants, petroleum-derived liquid and gaseous fuels and electric energy;
c) on gold, in the situation defined in art. 153, § 5°;
d) on performing communication services in broadcasting sounds and images with sound for free and gratuitous reception;279
XI— shall not include in its basis of calculation the amount of the tax on industrialized products, when the transaction between taxpayers involves a product destined for industrialization or commercialization and constitutes the taxable event for both taxes;
XII— a complementary law shall:
a) define its taxpayers;
b) deal with tax substitution;
c) regulate the regime for offsetting taxes;
d) establish the location of transactions of circulation of goods and performance of services for purposes of collection of the tax and definition of the establishment responsible;
e) in exports abroad exclude from incidence of the tax services and products other than those mentioned in subparagraph X, a;
f) provide for maintenance of a credit for services and merchandise sent to other States and exported abroad;
g) regulate the way fiscal exemptions, incentives and benefits shall be granted and revoked by resolutions of the States and the Federal District.
h) define fuels and lubricants on which the tax shall be imposed only once, regardless of end use, in which case the provision in subparagraph X, b, shall not apply;
i) fix the basis for calculation so that the tax falls upon the entire amount, as well as upon the importation from abroad of the good, merchandise or service.280
§ 3°. Except for the taxes referred to in subparagraph II of the heading of this article and in art. 153, I and II, no other tax shall be imposed on transactions involving electric energy, telecommunication services, petroleum by-products, fuels, and minerals of the Country.281
§ 4°. In the case of subparagraph XII, h, the following shall be observed:
I— in transactions involving lubricants and fuels derived from petroleum, the tax shall be allocated to the State where the consumption occurs;
II— in interstate operations, between taxpayers, involving natural gas and its by-products and lubricants and fuels not included in subparagraph I of this paragraph, the tax shall be divided between the States of origin and destination, maintaining the same proportion that occurs in transactions involving other merchandise;
III— in interstate transactions involving natural gas and its by-products, and lubricants and fuels not included in subparagraph I of this paragraph, and destined to the non-taxpayer, the tax shall belong to the State of origin;
IV— the rates of the tax shall be defined by determination of the States and the Federal District, in accordance with § 21, XII, g, observing the following:
a) they shall be uniform in all national territory, but may be differentiated by product;
b) they may be specific by unit of measure adopted or ad valorem, levied on the value of the transaction or on the price for the product or its similar in freely competitive sales;
c) they may be reduced and re-established, the provision of art. 150, III, b, being inapplicable.
§ 5°. The rules necessary for application of the provisions of § 41, including those relating to the ascertainment and destination of the tax, shall be established by determination of the States and the Federal District in accordance with § 2°, XII, g.282
Section V County Taxes
The Counties shall have the power to levy taxes on:
I— urban buildings and land;
II— non-gratuitous inter vivos transfers of real property, by whatever instrument, whether by natural or by physical accession, and any in rem rights to real property, except for guarantees, as well as the assignment of rights for its acquisition;
I— be progressive in accordance with the value of the real property; and
II— have different rates in accordance with the location and use of the real property.286
§ 2°. The tax provided for in subparagraph II:
I— shall not be imposed on the transfer of property or rights incorporated into the patrimony of a legal entity to pay up its capital, nor upon the transfer of property or rights stemming from merger, incorporation, spin-off or dissolution of a legal entity, unless, in such cases, the preponderant activity of the acquiring party is the purchase and sale of such property or rights, the leasing of real property or commercial leasing;
II— goes to the County where the property is located.
§ 3°. With respect to the tax provided for in subparagraph II of the heading of this article, a complementary law shall:
I— set maximum and minimum rates;
II— exclude from its application exports of services;
III— regulate the form and conditions, as well as fiscal exemptions, incentives and benefits that shall be granted and repealed.287
§ 4°. [Repealed].288
Section VI Division of Tax Revenues
The following shall be allocated to the States and Federal District:
I— proceeds from collection of the federal tax on income and earnings of any nature, withheld from income paid, by whatever instrument, by them, their autarchies and by foundations they institute and maintain;
II— twenty percent of the proceeds from the collection of the tax that the Union institutes in the exercise of the power conferred on to it by art. 154, I.
The following shall be allocated to the Counties:
I— the proceeds from the collection of the federal tax on income and earnings of any nature, withheld from income paid, by whatever instrument, by them, their autarchies and by foundations they institute and maintain;
II— fifty percent of the proceeds from collection of the federal tax on rural property, relative to the real property situated therein, or the entire proceeds in the event [the Counties] elect the option referred to in art. 153, § 41, III;289
III— fifty percent of the proceeds from the collection of the state tax on ownership of automotive vehicles licensed in their territory;
IV— twenty-five percent of the proceeds from the collection of the state tax on transactions of circulation of goods and on performance of services of interstate and inter-county transportation and communication.
Sole Paragraph. The revenue portions belonging to the Counties as mentioned in subparagraph IV shall be credited according the following criteria:
I— at least three-fourths, in proportion to the value added in transactions of circulation of merchandise and performing services carried out in their territories;
II— up to one-fourth, as established by state law or, in the case of the Territories, by federal law.
The Union shall turn over:
I— forty-nine290 percent of the proceeds from the collection of taxes on income and earnings of any nature and on industrialized products, in the following manner:
a) twenty-one and one-half percent to the Revenue Sharing Fund of the States and the Federal District;
b) twenty-two and one-half percent to the Revenue Sharing Fund of the Counties;291
c) three percent, for application in programs to finance the productive sectors of the North, Northeast and Center-West Regions, through their regional financial institutions, in accordance with regional development plans, with the semi-arid area of the Northeast being assured half the funds intended for the Region, as provided by the law;
d) one percent to the Revenue Sharing Fund of the Counties, which shall be delivered during the first 10 days of the month of December of each year.292
e) 1% (one percent) to the Revenue Sharing Fund of the Counties, which shall be delivered during the first 10 days of the month of July of each year.293
II— ten percent of the proceeds from the collection of the tax on industrialized products to the States and Federal District, in proportion to the value of respective exports of industrialized products.294
III— twenty-nine percent of the proceeds from collection of the assessment on intervention in the economic domain provided for in art. 177, § 4°, to the States and the Federal District, distributed as provided by law, observing the destination referred to in subparagraph II, c, of [art. 177, § 4°].295
§ 1°. For purposes of calculating the amount to be turned over under subparagraph I, the portion of the collection of the tax on income and earnings of any nature belonging to the States, Federal District and Counties according to arts. 157, I, and 158, I, shall be excluded.
§ 2°. No unit of the federation may be allocated a share in excess of twenty percent of the amount referred to in subparagraph II, and any excess shall be distributed among the other participants, maintaining the apportionment criteria established therein.
§ 3°. The States shall turn over to the respective Counties twenty-five percent of the funds they receive under the terms of subparagraph II, observing the criteria established in art. 158, sole paragraph, I and II.
Retention or any restriction on remittance and use of the funds allocated under this section to the States, Federal District and Counties, including any tax additions and increases, is prohibited.
A complementary law shall:
I— define the value added for purposes of art. 158, sole paragraph, I;
II— establish rules for remittance of funds referred to in art. 159, especially the criteria for apportionment of funds provided for in its subparagraph I, seeking to maintain socio-economic balance between States and Counties;
Sole Paragraph. The Tribunal of Accounts of the Union shall calculate the quotas referring to the participation funds mentioned in subparagraph II.
The Union, the States, the Federal District and the Counties shall announce, by the last day of month following collection, the amounts of each of the taxes collected, the funds received, the value of the taxes remitted and to be remitted, and the numerical expression of the apportionment criteria.
Chapter II Public Finance
Section I General Rules
A complementary law shall provide for:
I— public finances;
II— the public debt, both foreign and domestic, including the debt of the autarchies, foundations and other entities controlled by the Government;
III— concession of guarantees by governmental entities;
IV— issuance and redemption of government bonds;
V— financial supervision of direct and indirect public administration;298
VI— foreign exchange transactions carried out by agencies and entities of the Union, States, Federal District and the Counties;
VII— compatibility of functions of the official credit institutions of the Union, safeguarding the full characteristics and operating conditions of those intended for regional development.
§ 1°. The Central Bank is prohibited from directly or indirectly granting loans to the National Treasury and to any agency or entity that is not a financial institution.
§ 2°. In order to regulate the money supply or interest rates, the Central Bank may purchase and sell securities issued by the National Treasury.
§ 3°. The cash balances of the Union shall be deposited in the Central Bank; the cash balances of the States, Federal District, Counties, governmental agencies or entities and companies controlled by the Government shall be deposited in official financial institutions, except for cases established by law.
Section II Budgets
Laws initiated by the Executive shall establish:
I— the multi-year plan;
II— the budgetary directives;
III— the annual budgets.
§ 1°. The law that institutes the multi-year plan shall establish, on a regional basis, the directives, objectives and targets of the federal public administration for capital expenditures and other expenses resulting therefrom and for those regarding continuing programs.
§ 2°. The law of budgetary directives shall contain the targets and priorities of the federal public administration, including the capital expenditures for the following fiscal year, shall guide preparation of the annual budget law, shall provide for changes in tax legislation and shall establish the investment policies for official developmental financing agencies.
§ 3°. The Executive shall publish, within thirty days after the closing of each two-month period, a report summarizing its implementation of the budget.
§ 4°. The national, regional and sectorial plans and programs provided for in this Constitution shall be prepared in accordance with the multi-year plan and shall be examined by the National Congress.
§ 5°. The annual budget law shall include:
I— the fiscal budget for the Branches of the Union, their funds, agencies, and entities of direct and indirect administration, including foundations instituted and maintained by the Government;
II— the investment budget for companies in which the Union directly or indirectly holds the majority of the voting capital;
III— the social security budget, covering all entities and agencies of direct or indirect administration connected with social security, as well as funds and foundations instituted and maintained by the Government.
§ 6°. The budget bill shall be accompanied by a regionalized demonstration of the effect on revenues and expenditures resulting from exemption, amnesties, remissions, subsidies and benefits of a financial, tax and credit nature.
§ 7°. The budgets established in § 5°, I and II, of this article, compatible with the multi-year plan, shall include among their functions reducing interregional inequalities according to population criteria.
§ 8°. The annual budget law shall not contain any extraneous provisions that do not represent a forecast of revenues and establishment of expenditures, but such prohibition does not include authorization to create supplementary appropriations and borrow money, even by anticipating revenues, as provided by law.
§ 9°. A complementary law shall:
I— determine the effectiveness and terms of the fiscal year, preparation and organization of the multi-year plan, the law of budgetary directives and the annual budget law;
II— establish rules of financial and property management by the direct and indirect administration, as well as conditions for the institution and operation of funds.
III— provide criteria for the equitable execution, as well as the procedures, that shall be adopted when there are legal and technical impediments, completion of what remains to be paid and limitations on mandatory programming, for realization of the provision in § 11° of art, 166.299
Bills regarding the multi-year plan, budgetary directives, annual budgets and additional credits shall be examined by both Chambers of the National Congress in accordance with their common internal rules.
§ 1°. A permanent Joint Committee of Senators and Deputies shall be responsible for:
I— examining and issuing its opinion on the bills referred to in this article and on annual accounts submitted by the President of the Republic;
II— examining and issuing its opinion on the national, regional and sectorial plans and programs provided for in this Constitution, and monitoring and supervising the budget, without prejudice to the activity of the other committees of the National Congress and of its Chambers, created in accordance with art. 58.
§ 2°. Amendments shall be submitted to the Joint Committee, which shall issue its opinion on them, and shall be examined, in accordance with internal rules, by the Plenary Session of the two Chambers of the National Congress.
§ 3°. Amendments to the annual budget bill or to bills that modify it may only be approved if:
I— they are compatible with the multi-year plan and with the law of budgetary directives;
II— they specify the necessary funds, which may only stem from elimination of expenditures, excluding those that deal with:
a) appropriations for personnel and their indirect costs;
b) debt servicing;
c) constitutional tax transfers to the States, Counties and Federal District; or
III— they are related:
a) to the correction of errors or omissions; or
b) to the provisions in the text of the bill.
§ 4°. Amendments to the budgetary directives bill may not be approved if they are incompatible with the multi-year plan.
§ 5°. The President of the Republic may send a message to the National Congress proposing modification of the bills referred to in this article so long as the Joint Committee has not started to vote on the part for which a change is proposed.
§ 6°. Bills on the multi-year plan, budgetary directives and annual budget shall be submitted by the President of the Republic to the National Congress in accordance with the complementary law referred to in art. 165, § 91.
§ 7°. So long as they do not conflict with the provisions of this section, the other rules on legislative procedure apply to the bills mentioned in this article.
§ 8°. Any funds which, as a result of a veto, amendment or rejection of the annual budget bill, have no corresponding expenditure, may be used, as the case may be, through special or supplemental appropriations, with prior and specific legislative authorization.
§ 9°. Individual amendments to the draft of the budget law shall be approved with a limit of 1.2% (one and two tenths percent) of the current net receipts projected in the draft sent by the Executive, but half of this percentage limit shall be destined for public health actions and services.
§ 10°. Execution of the amount destined for public health actions and services provided for in § 9°, including costs, shall be computed for the purpose of performance of subparagraph I of § 2° of art. 198, prohibiting use for payment of personnel or social charges.
§ 11°. Execution of the budgetary and financial programming referred to in § 9° of this article is mandatory, in an amount corresponding to 1.2% (one and two-tenths percent) of the net current receipts collected in the prior period, in accordance with the criteria for equitable execution of programming defined in the complementary law provided for in § 9° of art. 165.
§ 12°. Execution of the budgetary programming provided for in § 9° of this article shall not be mandatory in cases of impediments of technical order.
§ 13°. When the Union’s mandatory transference for execution of the programming provided for in § 11° of this article is destined for the States, Federal District, and Counties, such transference shall be independent of performance by the receiving federative entity and shall not be part of the basis for calculation of net current receipts for application of the limits on personnel expenses dealt with in the initial paragraph of art. 169.
§ 14°. In case of a technical impediment to the allotment of expense that makes up the programming, in the form of § 11° of this article, the following measures shall be adopted:
I— within 120 (one hundred-twenty days) after publication of the budget law, the Executive, Legislature, Judiciary, Public Ministry and the Public Defender shall send to the Legislature justifications for the impediment;
II— within 30 (thirty) days after termination of the period provided for in subparagraph I, the Legislature shall indicate to the Executive the re-management of the programming whose impediment cannot be overcome;
III— by the 30th of September or within 30 (thirty) days after termination of the period provided for in subparagraph II, the Executive shall send a draft of a law on re-handling the programming whose impediment cannot be overcome;
IV— if, by the 20th of November or within 30 (thirty) days after the end of the period provided for in subparagraph III, the National Congress does not consider the draft law, the re-handling shall be implemented by Executive act, in accordance with the terms provided for in the budgetary law.
§ 15°. After the period provided in subparagraph IV of § 14°, execution of the budgetary programming provided in § 11° shall not be mandatory in cases of impediments justified in the notification provided for in subparagraph I of § 14°.
§ 16°. What remains to be paid shall be considered for purposes of performance of financial execution provided for in § 11°, up to a limit of 0.6% (six-tenths of one percent) of the current net receipts realized in the prior fiscal period.
§ 17°. If verified that re-estimate of receipts and expenses may result in non-compliance with the fiscal target established in the law of budgetary directives, the amount provided for in § 11° of this article may be reduced up to the same proportion of the limitation on the total of discretionary expenditures.
§ 18°. Execution of mandatory programming shall be considered equitable if it deals with the amendments presented in an egalitarian and impersonal manner, regardless of authorship.300
It is prohibited to:
I— begin programs or projects not included in the annual budget law;
II— expend funds or assume direct obligations that exceed the budgetary or additional appropriations;
III— borrow funds in excess of the amount of capital expenditures unless authorized through supplemental or special appropriations for a precise purpose, approved by an absolute majority of the Legislature;
IV— bind receipt of tax revenues to an agency, fund or expenditure, except for apportionment of the proceeds from collection of taxes referred to in arts. 158 and 159, allocation of funds for public health activities and services, for maintenance and development of education and for carrying out tax administration activities, as determined respectively in arts. 198, § 2°, 212, and 37, XXII, and guaranteeing loans by anticipating revenues provided for in art. 165, § 8°, as well as the provisions of § 4° of this article;301
V— open a supplemental or special appropriation without prior legislative authorization and without indication of the respective funds;
VI— reclassify, reallocate or transfer funds from one programming category to another or from one agency to another without prior legislative authorization;
VII— grant or utilize unlimited appropriations;
VIII— utilize, without specific legislative authorization, funds from the fiscal and social security budgets to satisfy a need or cover a deficit of companies, foundations and funds, including those mentioned in art. 165, § 5°;
IX— institute funds of any nature without prior legislative authorization.
X— transfer resources voluntarily and concede loans, including by anticipation of revenues, by the Federal and State Governments and their financial institutions, for payment of the expenses of active, inactive and retired personnel of the States, Federal District and Counties;302
XI— utilize funds stemming from assessments referred to in art. 195, I, a, and II for payment of expenditures other than payment of benefits for the general social security regime referred to in art. 201.303
§ 1°. No investment whose execution extends beyond a fiscal year may be started without prior inclusion in the multi-year plan or without a law authorizing such inclusion, under penalty of an impeachable offense.
§ 2°. Special and extraordinary appropriations shall be in force in the fiscal year in which they are authorized, unless the act authorizing them is promulgated during the last four months of that fiscal year, in which case, the limits of their balances being reopened, they shall be incorporated into the budget of the subsequent fiscal year.
§ 3°. Opening of extraordinary appropriations shall only be permitted to meet unforeseeable and urgent expenses, such as those resulting from war, internal commotion or public calamity, observing the provisions of art. 62.
§ 4°. Binding one’s own receipts generated by the taxes referred to in arts. 155 and 156, and of the resources referred to in arts. 157, 158 and 159, I, a and b, and II, is permitted as a guarantee or counter-guarantee to the Union and for payment of debts owed to it.304
§ 5°. Reclassification, reallocation, or transference of resources from one programming category to another shall be permissible in the area of activities of science, technology, and innovation, for the purpose of making viable the results of projects restricted to these functions, via an Executive act, without need for the prior legislative authorization provided for in subparagraph VI of this article.305
One-twelfth of the funds corresponding to budgetary appropriations, including supplemental and special appropriations, destined for agencies of the Legislature, Judiciary, Public Ministry, and Public Defenders, shall be delivered to them by the twentieth day of each month, as provided by the complementary law referred to in art. 165, § 9°.306
Expenditures for active and inactive personnel of the Union, States, Federal District and Counties may not exceed the limits established by complementary law.307
§ 1°. Granting any advantage or increase in remuneration, creation of offices, jobs and positions, or changes in career structures, as well as the admission or contracting of personnel of whatever title, by agencies and entities of direct or indirect administration, including foundations created and maintained by the Government, may only be accomplished:308
I— if there is a prior budgetary appropriation sufficient to cover the estimated personnel expenditures and the increases resulting therefrom;
II— if there is specific authorization in the law of budgetary directives, with the exception of public companies and mixed-capital companies.
§ 2°. Once the period established in the complementary law referred to in this article for adoption of the parameters provided herein has run, all remittances of federal or state funds to the States, Federal District and Counties that do not observe the referred to limits shall be immediately suspended.
§ 3°. For compliance with the limits established as the basis of this article, during the period fixed in the complementary law referred to in the heading, the Union, States, Federal District and Counties shall adopt the following measures:
I— reduction by at least twenty percent in expenditures for commission offices and positions of confidence;
II— dismissal of non-tenured civil servants.309
§ 4°. If the measures adopted on the basis of the prior paragraph are insufficient to assure compliance with the determinations of the complementary law referred to in this article, tenured civil servants may lose their office, so long as the motivating normative act of each one of the Branches specifies the functional activity or administrative agency or unit that is the object of the reduction in personnel.
§ 5°. A civil servant who loses his or her office in accordance with the prior paragraph shall have a right to just compensation corresponding to one month’s remuneration for each year of service.
§ 6°. Offices eliminated in accordance with the prior paragraphs shall be considered extinct. Creation of offices, jobs or positions with equal or similar powers is prohibited for a period of four years.
Title VII Economic and Financial Order
Chapter I General Principles of Economic Activity
The economic order, founded on the appreciation of the value of human labor and free enterprise, is intended to assure everyone a dignified existence, according to the dictates of social justice, observing the following principles:
I— national sovereignty;
II— private property;
III— social function of property;
IV— free competition;
V— consumer protection;
VI— environmental protection, including through differentiated treatment in accordance with the environmental impact of the products and services and the processes by which they are elaborated and rendered;311
VII— reduction in regional and social inequalities;
VIII— pursuit of full employment;
IX— preferential treatment for small-scale firms organized under Brazilian law with their headquarters and management in the Country.312
The law shall regulate, on the basis of national interest, foreign capital investment, granting incentives for reinvestment and regulating remittance of profits.
With the exception of the cases provided for in this Constitution, direct exploitation of an economic activity by the State shall only be permitted when necessary for the imperatives of national security or a relevant collective interest, as defined by law.
§ 1°. The law shall establish the legal regime of public companies, mixed-capital companies and their subsidiaries that engage in economic activities of production or marketing of goods or services, dealing with:
I— their social functions and the forms of supervision by the State and by society;
II— subjection to the same legal regime as private enterprises, including their civil, commercial, labor and tax rights and obligations;
III— competitive bidding and contracting of works, services, purchases and transfers, observing the principles of public administration;
IV— organization and functioning of boards of directors and supervisory councils, with participation of minority shareholders;
V— offices, evaluation of performance and liability of administrators.314
§ 2°. Public companies and mixed-capital companies may not enjoy fiscal privileges that are not extended to private sector companies.
§ 4°. The law shall repress abuse of economic power seeking to dominate markets, to eliminate competition and to increase profits arbitrarily.
As the normative and regulatory agent of economic activity, the State, as provided by law, shall perform the functions of supervision, incentivation and planning, the latter being binding for the public sector and advisory for the private sector.
§ 1°. The law shall establish directives and bases for planning balanced national development, which shall incorporate and make compatible national and regional development plans.
§ 3°. The State shall favor organization of cooperatives for prospecting and placer-mining activity, taking into account protection of the environment and the socio-economic promotion of the prospectors and miners.
§ 4°. The cooperatives referred to in the preceding paragraph shall have priority in obtaining authorizations or concessions for prospecting and mining mineral resources and deposits in areas where they are operating and in those fixed in accordance with art. 21, XXV, as provided by law.
The Government is responsible for providing public utility services, either directly or under regimes of concessions or permits, always through public bidding, as provided by law.
Sole Paragraph. The law shall provide for:
I— the regime for companies that have concessions or permits to provide public utility services, the special character of their contracts and the extension thereof and conditions for lapse, supervision and termination of concessions or permits;
II— rights of users;
III— rate policy;
IV— obligation to maintain adequate service.
Mineral deposits, whether being worked or not, and other mineral resources and hydraulic energy sites constitute property distinct from the soil for the effects of exploitation or use, and belong to the Union, guaranteeing to the concessionaire ownership of the output of the deposit.
§ 1°. Prospecting and mining of mineral resources and use of hydraulic sites referred to in the heading of this article may only take place through authorization or concession by the Union, in the national interest, by Brazilians or by companies organized under Brazilian law and that have their headquarters and management in the Country, as provided by law, which shall establish specific conditions when these activities take place in frontier areas or on indigenous lands.315
§ 2°. The owner of the soil is assured a share in the results of working the deposit, in the form and in the value provided for by law.
§ 3°. Prospecting authorization shall always be for a limited period, and the authorizations and concessions provided for in this article may not be assigned or transferred, either in whole or in part, without prior legal consent from the granting authority.
The Union has a monopoly on the following:
I— prospecting and exploitation of deposits of petroleum, natural gas and other fluid hydrocarbons;
II— refining domestic or foreign petroleum;
III— importation or exportation of products and basic by-products resulting from the activities set forth in the prior subparagraphs;
IV— maritime transportation of crude oil of domestic origin or of basic petroleum by-products produced in the Country, as well as the pipeline transportation of crude oil, its by-products and natural gas of whatever origin;
V— prospecting, mining, enrichment, reprocessing, industrialization or commerce in ores and nuclear minerals and their by-products, with the exception of radioisotopes whose production, marketing and utilization may be authorized under a permit regime, in accordance with subparts b and c of subparagraph XXIII of the heading of art. 21 of this Federal Constitution.316
§ 1°. The Union may contract with state or private firms to perform the activities provided for in subparagraphs I to IV of this article, observing the conditions established by law.
§ 2°. The law referred to in § 1° shall provide for:
I— guarantee of furnishing petroleum by-products in the entire national territory;
II— the conditions of contracting;
III— the structure and powers of the agency regulating the Union’s monopoly.317
§ 3°. The law shall provide for the transportation and use of radioactive materials within the national territory.
§ 4°. The law that institutes an assessment for intervention in the economic domain relating to the activities of importation or marketing of petroleum and its by-products, natural gas and its by-products and fuel alcohol shall obey the following requirements:
I— the rate of assessment may be:
a) differentiated by product or use;
b) reduced and re-established by act of the Executive, without applying the provision of art. 150, III, b;
II— the proceeds collected shall be destined for:
a) paying subsidies for the prices or transportation of fuel alcohol, natural gas and its by-products and petroleum by-products;
b) financing environmental projects related to the petroleum and gas industries;
c) financing infrastructure programs in transportation.318
The law shall provide for the regulation of air, water, and land transportation, and shall observe the agreements signed by the Union as to the organization of international transportation, in accordance with the principle of reciprocity.
Sole Paragraph. In regulating water transportation, the law shall establish conditions under which foreign vessels may transport merchandise in the coastal trade and in internal navigation.319