Principles, Limits and Applications
Brazilian federalism is a system that distributes power among different federated entities – the Union, States, and Municipalities – with the goal of guaranteeing political and administrative autonomy to each of them. However, there are situations in which this autonomy can be temporarily suspended through a constitutional mechanism called intervention.
In the case of states, state intervention is an exceptional measure adopted to restore legal order and protect the federal pact. In this article, we explore the principles, limits, and applications of state intervention in the context of Brazilian federalism.
What is State Intervention?
State intervention is the mechanism by which a state can intervene in a municipality to guarantee compliance with certain constitutional precepts or to address situations that compromise public order and social well-being. It is a temporary measure, of limited duration, and can only occur based on circumstances foreseen in the Federal Constitution.
Exceptionally, state intervention is applied only in extreme situations, when the municipality is unable or failing to fulfill its fundamental obligations. During the intervention, the municipality's autonomy may be temporarily reduced in order to preserve the balance of the federal pact and ensure the proper functioning of the local governance system.
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Hypotheses for State Intervention
The 1988 Federal Constitution, in its article 35, defines the situations in which a State can intervene in its municipalities. These hypotheses are exhaustive, meaning that intervention can only occur in the cases expressly provided for in the constitutional text. The main hypotheses include:
- Failure to pay a funded debt for two consecutive years without a compelling reason;
- If proper accounts are not rendered, as required by law;
- If the minimum required amount of municipal revenue has not been applied to the maintenance and development of education and to public health actions and services;
- The Court of Justice may grant a representation to ensure compliance with principles indicated in the State Constitution, or to provide for the execution of a law, order, or judicial decision.
These scenarios represent situations in which municipal administration is compromised, justifying corrective action by the State to ensure the fulfillment of essential obligations.
Types of State Intervention
State intervention can occur in two ways: spontaneously or by provocation.
1. Spontaneous Intervention
Spontaneous intervention occurs when the governor decides, on his own initiative, to intervene in a municipality. The circumstances that allow this type of intervention are provided for in items I, II and III of article 35 of the Constitution, such as non-payment of debts, failure to render accounts or non-compliance with constitutional minimums in health and education.
In this type of intervention, the governor issues a decree establishing the limits, conditions, and duration of the measure. This decree must be submitted to the Legislative Assembly within 24 hours for political oversight to be exercised. If the Assembly rejects the decree, the intervention must be immediately terminated.
2. Provoked Intervention
The intervention triggered depends on a court decision or a formal representation. Provided for in item IV of article 35, it occurs when there is non-compliance with state constitutional principles, laws or court decisions on the part of the municipality.
In this case, the process begins with a lawsuit filed by the State Attorney General, who forwards the request to the local Court of Justice. If the Court accepts, it issues a request to the governor, who is obliged to decree the intervention. In this type of intervention, control by the Legislative Assembly is dispensed with, since the process already involves the Judiciary.
The Intervention Process
State intervention is formalized through a decree issued by the governor. This decree must specify the scope, conditions, and duration of the intervention. In more complex cases, an intervener may be appointed, responsible for correcting the irregularities that prompted the intervention.
During the intervention period, municipal authorities may be removed from their positions. Once the causes that led to the intervention are resolved, the removed authorities resume their duties, unless there is a legal impediment.
Once the reasons that justified the intervention cease to exist, the municipality returns to administrative normalcy and the intervention decree loses its effectiveness.
Constitutional Limits and Legislative Oversight
Although a necessary tool, state intervention is subject to strict constitutional controls. In addition to the cases outlined in Article 35, the Constitution requires that any intervention decree be submitted to the Legislative Assembly for approval within 24 hours. If the Legislature does not approve the decree, the intervention must be immediately halted.
This political oversight is fundamental to preventing state intervention from being used arbitrarily or abusively. The Legislative Assembly has the function of overseeing the actions of the Executive Branch, ensuring that the measure meets legal and constitutional requirements.
In cases where intervention is triggered by judicial decisions, legislative oversight is dispensed with, since the process already involves the Judiciary.
Intervention in the Context of Brazilian Federalism
Brazilian federalism is characterized by the autonomy of the federated entities, with the Union, States, and Municipalities possessing their own independent powers. However, the system also provides for control and intervention mechanisms to ensure that no entity compromises the legal order and social well-being.
State intervention is one such tool, and it is fundamental to ensuring that municipalities fulfill their constitutional obligations. Its objective is to prevent mismanagement or non-compliance with laws from compromising local governance and the provision of essential public services.
Unlike federal intervention, which can be applied to both states and municipalities located within federal territories, state intervention is restricted to municipalities within a state. Furthermore, intervention is always a last resort, applied only when other means of resolution are ineffective.
Comparison with the Federal Intervention
Although this article deals with state intervention, it is interesting to draw comparisons with federal intervention, which is also provided for in the Federal Constitution. Federal intervention occurs when the Union intervenes in states, the Federal District, or municipalities within federal territories, as per articles 34 and 35 of the Constitution.
Federal intervention has broader implications, including situations such as:
- To maintain national integrity;
- To repel foreign invasion or invasion by one unit of the Federation into another;
- Putting an end to serious impairment of public order;
- To guarantee the free exercise of any of the Powers in the units of the Federation;
- V – to reorganize the finances of the federative unit that:
a) suspend payment of the funded debt for more than two consecutive years, except in cases of force majeure;
b) failing to deliver to the Municipalities tax revenues established in this Constitution, within the deadlines set by law;
- To ensure the enforcement of federal law, order, or court decision;
- To ensure compliance with the following constitutional principles:
a) Republican form, representative system and democratic regime;
b) Human rights;
c) Municipal autonomy;
d) Accountability of direct and indirect public administration;
(e) Application of the minimum required amount of revenue from state taxes, including that from transfers, to the maintenance and development of education and to public health actions and services.
Federal intervention can be decreed either spontaneously or as a result of judicial decisions. Like state intervention, the federal decree is also subject to political control, being evaluated by the National Congress.
Conclusion
State intervention is an indispensable tool for preserving the federal order in Brazil. By ensuring that municipalities fulfill their constitutional obligations, it guarantees the integrity of the governance system and protects the rights of the population.
However, because it is an exceptional measure, the intervention must be used cautiously and within constitutional limits, ensuring that the autonomy of municipalities is restored as quickly as possible.
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References
BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on: September 18, 2024.
LENZA, Pedro. Constitutional Law. 28th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (Outlined®). ISBN 9788553621958. Available at: https://integrada.minhabiblioteca.com.br/books/9788553621958. Accessed on: September 20, 2024.
MENDES, Gilmar Ferreira; BRANCO, Paulo Gustavo Gonet. Course on Constitutional Law. 19th ed. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). (IDP). ISBN 9786553629417. Available at: https://integrada.minhabiblioteca.com.br/books/9786553629417. Accessed on: September 22, 2024.
