Judicial Review of the Legislative Process in Brazil

Luis Otavio Barroso da Graca

Abstract


Judicial review of the legislative process has been a controversial topic in the case law of the Federal Supreme Court in Brazil. Issues regarding enacted statutes are not as controversial as those involving pending processes. On one hand, the Court has been scrutinising cases based on procedural legislative rules that are enshrined in the Constitution. On the other, the Court has been refusing to examine procedures based on provisions not enshrined in the Constitution, such as the internal ordinances of the parliament. In the former situation, the Court sees itself compelled to perform a kind of prior control of constitutionality. In the latter, it states that evaluating whether the process abides by the parliament’s own rules is an internal political (interna corporis) task, not a legal one. In this article, I argue that adherence to rules that govern the legislative process, regardless of their status, is not a matter of political discretionary choices, but a matter of compliance with the rule of law. Therefore, the Brazilian Federal Supreme Court should abandon the prior control of constitutionality rationale, and it should review pending legislative processes including those based on the internal ordinances of the parliament.

 

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