First and foremost, the system of constitutional review gives lawyers and legal professionals great security in defending and guaranteeing constitutional norms.
Furthermore, the control of constitutionality is currently a highly relevant topic in public service exams and in the Brazilian Bar Association (OAB) exams.
Therefore, here, we will discuss in an easy, quick, and complete way the main points you need to know about the constitutional control system.
1. What is a system of constitutional control?
In summary, the system of constitutional control is a set of rules designed to verify whether legal acts comply with the Federal Constitution.
Uadi Lammêgo Bulos defines the concept of constitutional review as:
" The instrument for guaranteeing constitutional supremacy. It serves to defend the constitution from attacks by public authorities, and also from private acts that undermine the magnitude of its precepts. "
Therefore, the system of constitutional control is based on the combination of norms in order to verify both the conformity and the adequacy of the legal act in relation to the Constitution.
The impact of this, therefore, is to guarantee the effectiveness of the Federal Constitution.
Worth checking out: Marbury v. Madison: A case study of judicial review.
2. What is the purpose of constitutional review?
In short, constitutional review aims to analyze harm to the rights and guarantees of the Federal Constitution.
In other words, the objective is to certify compliance with constitutional norms , guaranteeing their stability , supremacy , and preservation.
Regarding this, Vicente Paulo and Marcelo Alexandrino discuss the purpose of constitutional review: to prioritize the constitutional stability of the State, guarantee constitutional supremacy in the face of acts of Public Power, preserve the constitutional framework of the Federal Constitution, and ensure fundamental rights and guarantees.
Now that the purpose has been detailed, let's look at the following systems of constitutional review.
3. What are the systems for controlling constitutionality?
In principle, there is a preventive and repressive system of constitutional control to prevent and suppress unconstitutional acts.
Constitutional review: preventive
First, preventive control aims to avoid the introduction of unconstitutional norms into a country's legal system.
Therefore, preventive control usually occurs when normative species are formed.
Constitutional review: repressive
Repressive control, on the other hand, is usually carried out after the introduction of the rule into the legal system.
In this way, the applicability of the unconstitutional rule is excluded in order to guarantee the integrity of the Constitution.
4. How to analyze constitutionality?
There are two types of methods based on the purpose of the control: diffuse and concentrated.
Diffuse control
In summary, diffuse control occurs within the scope of the subjective protection of rights.
In this way, it is a diffuse, distributed control, not only in relation to the legitimate party (any person), but also in relation to any judge or court.
Focused control
In summary, concentrated control is carried out within the scope of protecting the Federal Constitution.
It is also considered abstract because it does not involve subjective issues (related to subjects), that is, the sole purpose of the control is to protect the constitutional order.
5. What are the assumptions of the system of constitutional review?
The basic elements for the existence of constitutional review are: the existence of a written constitution, constitutional rigidity, and a review body, according to the legal scholar Calil Simão.
Now, let's look at each of them in detail.
Written Constitution
The first element is the existence of a written constitution; that is, the constitutional norms need to be included in text, a visible document.
Constitutional rigidity
The second element for constitutional control is the existence of structural rigidity. This rigidity aims to hinder the reform process and guarantee the stability of the constitution.
Rigidity is generally expressed by the need for a greater number of approvals, or quorum. There are also other factors such as restricted initiatives and material constraints.
Control body
The third and final element of constitutional control is the existence of control institutions.
Control bodies can be political, judicial, or mixed. In Brazil, however, what occurs is judicial control, which is exercised by judicial institutions.
In light of the above, it is clear that knowledge of the system of constitutional review was presented in an easy and quick way, through these 5 key points.
However, it is important that this knowledge of Constitutional Law is constantly refined, since laws are always subject to constitutional review.
Furthermore, being a good constitutional lawyer is the foundation for masterful performance in any other area of legal specialization.
Did you enjoy the content? Subscribe to the IDP Online newsletter to stay up-to-date on the main discussions in the legal world!