Despite the debate surrounding the (non-)existence of a normative hierarchy in law, as established by Kelsen's pyramid, for the didactic purposes of this article we will proceed from the premise that the Brazilian legal system is structured hierarchically, such that different norms have distinct levels of authority and specific requirements for their approval and legislative modification.
Among the main types of normative acts are Constitutional Amendments, Complementary Laws, and Ordinary Laws, each performing its respective function and possessing its own characteristics within the legal system. Understanding the differences between these normative instruments is essential for legal professionals, legislators, and citizens interested in the functioning of Brazil's democratic institutions.
The 1988 Federal Constitution is the fundamental law of the country, serving as a guide for the entire legal system. However, it is not immutable. When necessary, it can be modified through Constitutional Amendments, provided that the entrenched principles and clauses are respected. Complementary and Ordinary Laws regulate sub-constitutional matters, but differ in their content, legislative process, and normative hierarchy.
CONSTITUTIONAL AMENDMENT: MODIFYING THE CONSTITUTION
The Brazilian Constitution can be classified in the following ways: promulgated, analytical, dogmatic, eclectic, rigid, written, codified, and directive. Of these characteristics, we will focus solely on its rigidity.
According to the doctrine of Gilmar Mendes and Paulo Gonet, " the rigidity or flexibility of the Constitution is determined according to the degree of formality of the procedure required to change the Fundamental Law. The stability of constitutional norms, in a rigid Constitution, is guaranteed by the requirement of a special, solemn, difficult procedure, demanding high parliamentary majorities, for them to be altered by the constituent power of reform ."
Given this scenario, it is possible to observe the importance given to the Brazilian constitutional text, which depends on a specific procedure for promulgation, the details of which will be fully outlined later.
A Constitutional Amendment is a mechanism that allows for the alteration of the text of the Federal Constitution, ensuring that it can evolve and adapt to the social, political, and economic changes in the country. However, because it is the highest-ranking norm within the legal system, given that it alters the constitutional text, it cannot be changed by just any type of norm, nor in a simple way. For this, there is a rigorous legislative process established by Article 60 of the Constitution itself.
For this change in the constitutional paradigm to occur, the proposed Constitutional Amendment (PEC) may be presented by: (i) at least one-third of the members of the Chamber of Deputies or the Federal Senate; (ii) the President of the Republic; or (iii) more than half of the State Legislative Assemblies, each with the approval of a relative majority of its members.
After being introduced, the proposed constitutional amendment must be discussed and voted on in two rounds in each house of the National Congress (Chamber of Deputies and Senate), requiring the approval of at least three-fifths of the parliamentarians in each round (308 deputies and 49 senators). If approved, the amendment is promulgated by the presiding officers of the Chamber and the Senate, without the need for presidential sanction.
Limits to Constitutional Amendments
Although the Constitution can be amended, there are express restrictions known as entrenched clauses, which are matters that cannot be abolished or reduced through Constitutional Amendments. Article 60, §4, of the Constitution establishes as entrenched clauses (i) the federative form of the State; (ii) direct, secret, universal and periodic suffrage; (iii) the separation of Powers; and (iv) individual rights and guarantees.
This means that any attempt to abolish or undermine these fundamental principles will be unconstitutional, even if it obtains sufficient political support for its approval.
SUPPLEMENTARY LAW: REGULATION OF SPECIFIC ISSUES
A Complementary Law is a type of sub-constitutional norm that aims to detail and regulate express provisions of the Constitution that require special normative discipline. Its name stems from the fact that it complements the Constitution in matters that the Constitution expressly determines should be regulated by this type of law.
Unlike ordinary law, a supplementary law cannot deal with any subject, so its existence requires a prior express provision in the Constitution itself, determining its existence for the purpose of regulating specific topics, such as (i) the organization of public administration and state finances; (ii) general rules for the preparation of budget laws; (iii) the definition of crimes of responsibility of the President of the Republic; (iv) the national tax system; and (v) the organization of the Public Prosecutor's Office and the Public Defender's Office.
If the Constitution requires that a certain subject be regulated by a Complementary Law, then it cannot be addressed by an Ordinary Law. Any attempt to do so would result in the formal unconstitutionality of the norm.
For its approval, there is a specific legislative procedure, which requires a quorum of an absolute majority of the members of the legislative body (that is, more than half of the total number of parliamentarians and not just those present at the session). Currently, the Chamber of Deputies has 513 members, so at least 257 votes would be needed for the approval of a Complementary Law.
Unlike a Constitutional Amendment, a Supplementary Law needs to be sanctioned or vetoed by the President of the Republic after approval in the National Congress. In the case of a presidential veto, Congress can override it through a qualified vote.
Ordinary Law: The Most Common Rule in the Legal System
Ordinary Law is the most common type of legislation and serves to regulate matters within the competence of the Legislative Branch that do not require a Complementary Law. As a general rule, all matters can be addressed by Ordinary Law, except those that the Constitution explicitly reserves for other types of legislation.
Matters Regulated by Ordinary Law
Ordinary Law deals with various topics, including:
- Civil, criminal, procedural and administrative law;
- Rules for public policies and government programs;
- Creation and elimination of public positions;
- Regulation of public services;
- General rules of consumer and environmental law.
The legislative process for Ordinary Law is less rigid than that for Constitutional Amendments and Complementary Laws. For a Bill to be approved, it only needs a simple majority of those present at the legislative session, provided there is a minimum quorum for deliberation. This means that if there is a quorum to vote and only 100 deputies are present, it will only take 51 votes to approve the matter for the Law to be validated.
After being approved by Congress, the Ordinary Law goes to the President of the Republic for approval or veto. The veto can be overturned by Congress, provided there is an absolute majority in both houses.
MAIN DIFFERENCES BETWEEN THE THREE TYPES OF STANDARDS
The main differences between a Constitutional Amendment, a Supplementary Law, and an Ordinary Law can be summarized in three main aspects:
Subject: A Constitutional Amendment alters the Constitution; a Complementary Law regulates specific matters required by the Constitution; and an Ordinary Law deals with general topics.
Quorum for Approval: The Amendment requires three-fifths of the votes in two rounds in each house of Congress; the Complementary Law requires an absolute majority; and the Ordinary Law only needs a simple majority of those present at the vote.
Hierarchy: The Constitutional Amendment is at the top of the legal system, given that it is equivalent to a constitutional norm; the Complementary Law and the Ordinary Law are at the same hierarchical level, so they perform distinct functions, but one does not take precedence over the other.
CONCLUSION
The distinction between Constitutional Amendment, Complementary Law, and Ordinary Law is fundamental to understanding the dynamics of the Brazilian legal system. Each of these norms plays a specific role in the country's legislative structure and has distinct approval requirements.
A Constitutional Amendment is an instrument for modifying the Constitution and has a rigorous legislative process. A Complementary Law, in turn, regulates specific matters determined by the Constitution and requires a qualified quorum for approval. An Ordinary Law, on the other hand, deals with broader issues and follows a simpler legislative procedure.
Understanding these differences is essential for exercising citizenship and for professional practice in the fields of law, legislative policy, and improving government relations.
