When we study Constitutional Law, in addition to gaining in-depth knowledge of fundamental rights and guarantees, and the structure and organization of the state, we also delve into some important functions for democracy.

In this article, I want to present to you the powers of the President of the Republic, as outlined in Article 84 of the Federal Constitution.

In the text of the law, we find more than 20 constitutional powers directed to the Head of State. It is important to note, however, that this is an illustrative list, because there may be other powers that are not listed in the aforementioned article.

The enactment of the Laws 

It is known that, after a bill is approved by both houses of the National Congress, it will be sent to the President of the Republic who, if he agrees with the normative text, will sanction it. 

It is worth mentioning that, if the President of the Republic does not agree with the project, he can veto it on grounds of unconstitutionality or because it does not serve the public interest.

This is what is stipulated in Article 66, § 1 of the Constitution:

"If the President of the Republic considers the bill, in whole or in part, unconstitutional or contrary to the public interest, he shall veto it in whole or in part within fifteen working days from the date of receipt, and shall communicate the reasons for the veto to the President of the Federal Senate within forty-eight hours."

Regarding vetoes, professors of Constitutional Law make the following distinction:

• If the President vetoed the bill because he believes it is unconstitutional, we are talking about a legal veto. 

• If the President vetoed the bill because he believes it is contrary to the public interest, we are talking about a political veto.

Finally, it's worth mentioning that a bill approved by Congress only becomes law after the President of the Republic signs it into law.

The Regulatory Power of the President of the Republic

Professor José Afonso da Silva teaches that the President of the Republic has the administrative power to issue regulations for the implementation of laws.

According to Professor Nelson Nery's teachings, the function of a decree is not to repeat the law, literally copying its terms, but rather to provide the elements and conditions necessary for the faithful execution of the law.

Therefore, according to the jurisprudence of the Supreme Federal Court, the President of the Republic cannot exceed the limits of what should be regulated, under penalty of violating the principle of legality. 

This is what can be inferred from ADIn 4.176 : "regulatory acts whose content exceeds what is contained in the regulated law may be tainted with illegality."

Finally, it is worth noting that a regulatory decree is a secondary normative act, since its force emanates from the law, so that any offense by a regulatory decree to the Constitution is a reflexive/indirect offense; consequently, as a rule, there is no constitutional review applicable to regulatory decrees.

Granting of pardon by the President of the Republic

A pardon consists of the collective forgiveness of a sentence, and is formalized through a decree issued by the President of the Republic.

Several issues relating to this institution have already been the subject of discussion in the Supreme Federal Court. Among them, two judgments stand out:

The first of these is the impossibility of an Ordinary Law restricting the power of the President of the Republic to issue pardons.

According to the Supreme Court, "in theory, ordinary law cannot restrict the constitutional power of the President of the Republic to 'grant pardons and commute sentences, after hearing, if necessary, the bodies established by law' (CF 84 XII), by imposing material prohibitions not arising from the Constitution" (HC 81565-SC).

In the second ruling, the Supreme Court declared "unconstitutional the possibility of granting pardons to those convicted of heinous crimes, torture, terrorism, or illicit trafficking of narcotics and related drugs, regardless of the length of time since the conviction" (MCADIn 2795-DF).

That is to say, the President of the Republic is free to extend the terms of the decree, provided that the prohibition on granting immunity for heinous and equivalent crimes is observed (STF, ADI n. 5.874).

Furthermore, it is worth mentioning that a pardon means the forgiveness of the sentence, with its consequent extinction, considering the fulfillment of certain requirements.

But, as mentioned, it will be the Presidential Decree that establishes the conditions for granting the pardon, indicating which prisoners can and cannot be considered for this benefit.

Important distinctions: pardon and amnesty 

The concepts of pardon, clemency, and amnesty should not be confused.

This is because, while a pardon consists of the collective forgiveness of a sentence, clemency is also a form of forgiveness, similarly granted by the President of the Republic. The difference is that clemency is granted to the prisoner individually, while a pardon is collective.

Amnesty, on the other hand, is granted by the Legislative Branch, not the President of the Republic, and to be formalized, a law must be enacted that erases the sentence and all its consequences.

Regarding amnesty, if it involves crimes, only the National Congress is authorized to grant it, since it is the exclusive responsibility of the Union to legislate on criminal law, as per article 22, item I, of the Constitution.

However, in accordance with the decision of the Supreme Federal Court, due to the autonomy granted to the States, the Legislative Assembly may grant amnesty to public servants, provided that it relates to administrative punishments (STF, ADI n. 104).

Celebration of International Treaties 

When the topic is the signing of international treaties, you need to know that both the Executive and Legislative branches of government will be involved.

This is because, as stipulated in the Constitution, it is the responsibility of the President of the Republic, in his role as Head of State, to conclude treaties with other countries or international organizations.

Once the treaty is signed, the Legislative Branch will be responsible for its implementation, as expressly provided for in Article 49, I, of the Federal Constitution. 

The text of the law refers to the exclusive competence of the National Congress to "definitively resolve on treaties, agreements or international acts that entail burdensome charges or commitments to the national patrimony".

Thus, once the treaty has been signed by the Executive Branch, and with the agreement of the Legislative Branch, the President of the Republic will incorporate the content of the international treaty into Brazilian law by issuing a decree.

Possibility of delegating the powers of the President of the Republic.

Finally, it is important to highlight that the sole paragraph of Article 84 of the Constitution states that the President of the Republic may delegate the following powers to the Attorney General of the Republic, the Solicitor General of the Union, and the Ministers of State:

• To provide, by decree, for (i) the organization and functioning of the federal administration, when it does not imply an increase in expenditure or the creation or extinction of public bodies; and (ii) the extinction of public functions or positions, when vacant;

• To grant pardons and commute sentences;

• To fill federal public positions, as prescribed by law.

Specialize in Constitutional Law here at IDP!

Finally, I'll leave you with this tip if you want to delve deeper into the study of Constitutional Law! Without a doubt, there are countless issues to be discussed and developed regarding the topics surrounding constitutional debate.

With IDP Online's postgraduate program, you can study from anywhere in Brazil, including exchanging ideas live with the country's most renowned professors. This will greatly facilitate your learning journey, as you will have the support of the leading professionals in the field. 

Also, if you enjoyed this article, be sure to subscribe to our newsletter! 

By subscribing to our newsletter, you'll have first-hand access to IDP articles, including the latest news from the legal world, free IDP materials, and recommendations from market experts!