The 1988 Federal Constitution was created to mark the redemocratization of the country after a long period of military dictatorship.
The Constitution established three independent and harmonious branches of government: Legislative, Judicial, and Executive.
The Legislative branch has the typical function of legislating, which is to create Brazilian legal regulations. This legislation is developed through what we call the legislative process.
What is the legislative process and what does it encompass?
According to General Legal Theory, a process is a mechanism composed of acts, in a certain order, that relate to each other to produce a final product. In the legislative process, this mechanism translates into the creation of legal norms.
In Brazilian law, the types of rules that result from the legislative process are outlined in Article 59 of the Federal Constitution.
Let's take a look at each of them from now on.
Amendments to the Constitution
These are norms of constitutional hierarchy, which means they are equivalent to the text of the Federal Constitution. Amendments aim to insert new provisions into the Constitution, modify existing ones, or even remove constitutional text.
To be approved, they must be voted on in two rounds in each House of the National Congress—that is, twice in the Chamber of Deputies and twice in the Federal Senate. In each vote, at least 3/5 of the total members of the House must vote in favor. This is what we call a qualified majority quorum.
In practical terms: if the Chamber of Deputies currently has 513 members, for it to be approved, it must have at least 308 votes in favor, in two separate votes. In the Federal Senate, considering that there are 81 senators, it must have at least 49 votes in favor, twice.
Complementary laws
Complementary laws, as the name suggests, complement constitutional norms. Article 59, sole paragraph, of the Constitution states that "Complementary law shall provide for the drafting, writing, amendment and consolidation of laws".
The Constituent Assembly preferred that certain matters of greater importance be regulated by supplementary law. One of the reasons is the quorum required for its approval: an absolute majority of members of the voting House is demanded.
An absolute majority refers to the majority of all members of each House. This means that in the Senate, the Supplementary Bill will be approved if there are 41 votes. In the Chamber of Deputies, there must be 257 votes in favor.
Ordinary laws
If the Constitution does not specify that a particular regulation must be made by a supplementary law, then it will be the subject of an ordinary law.
Here, the majority required for approval is called a simple, or relative, majority. It only requires that a majority of those present vote in favor.
This means that, in a given Senate session, if there are 50 people present, the law will be approved with only 26 votes in favor. In the Chamber of Deputies, if there are 400 people present, it will be approved with 201 votes in favor.
Delegated laws
These are normative instruments created by the President of the Republic, by delegation from the National Congress. The Presidency of the Republic drafts the instrument and requests special authorization from Congress.
This type of currency is so rarely used that, throughout the history of the Republic of Brazil, only 13 editions have been published, the last one in 1992!
provisional measures
These are forms of exceptional legislation issued by the Executive Branch in cases of relevance and urgency, with a validity period, and must be submitted to the National Congress.
Legislative decrees
These are normative acts issued by the National Congress. It is through decrees, for example, that Congress approves international human rights treaties and conventions as supralegal norms. Congress also uses decrees to regulate matters exclusively within its purview, often with external effects.
Resolutions
These are also normative acts issued by the Chamber of Deputies and the Senate. While Decrees generally have external effects, Resolutions have only internal effects, that is, within each House where they were issued.
What are the committees in the legislative process?
Now that we know the types of legislative norms provided for by the Constitution, we need to understand that the legislative process presupposes that Bills are processed by committees within each House of the National Congress.
In the Chamber of Deputies, we currently have 25 permanent committees and dozens of temporary committees. Each one has a different function, whether legislative or oversight.
These are the permanent ones:
- Agriculture, Livestock, Supply and Rural Development;
- Science and Technology, Communication and Informatics;
- Constitution, Justice and Citizenship;
- Culture;
- Consumer Protection;
- Defending Women's Rights;
- Defense of the Rights of the Elderly;
- Defense of the Rights of People with Disabilities;
- Economic Development, Industry, Commerce and Services;
- Urban Development;
- Human Rights and Minorities;
- Education;
- Finance and Taxation;
- Financial Oversight and Control;
- National Integration, Regional Development and the Amazon;
- Participatory Legislation;
- Environment and Sustainable Development;
- Mines and Energy;
- Foreign Relations and National Defense;
- Public Security and Combating Organized Crime;
- Social Security and Family;
- Labor, Administration and Public Service;
- Tourism;
- Roads and Transportation;
- Sport.
In the Federal Senate, there are 15 permanent members:
- Agriculture and Agrarian Reform;
- Economic Affairs;
- Social Affairs;
- Science, Technology, Innovation, Communication and Informatics;
- Constitution, Justice and Citizenship;
- Regional Development and Tourism;
- Human Rights and Participatory Legislation;
- Education, Culture and Sport;
- Environment;
- Foreign Relations;
- Public Safety;
- Infrastructure Services;
- Transparency, Governance, Oversight and Control, and Consumer Protection;
- Representative of the National Congress at the Inter-Parliamentary Forum of the Americas;
- Senate of the Future.
Temporary committees in the Chamber of Deputies or the Senate vary in purpose, as they are designed to address a specific issue. They are dissolved at the end of the legislative term or when they achieve the purpose for which they were created.
What are the steps in the legislative process and how do they work?
The ordinary legislative process begins with a proposal, or initiative, in either the Chamber of Deputies or the Federal Senate.
After the proposals are submitted, the discussion and deliberation phase begins. During the legislative process, it is very common for proposals to be modified (amended) within the debates of the Committees or in the Plenary of each of the Houses.
It is only at the end of the committee process that the proposal is put to a vote, which must comply with the quorums we referred to earlier, depending on the type of proposal.
If the proposal is approved in the first House (called the Initiating House), it goes to the second House (the Reviewing House) for debate and voting. If it is rejected in the first House, it is not sent to the other.
If approved in both instances, it will then proceed to the President of the Republic for review.
The President has the power to approve or veto (reject) a proposal, in whole or in part. Approval transforms the proposal into law. If approved, it proceeds to publication.
If the proposal is vetoed, it returns to Congress and can be overturned by an absolute majority of Deputies and Senators.
Why does understanding the legislative process help legal professionals?
It is important to have expertise in the Brazilian legislative process because of the impact this knowledge has on us as citizens and legal professionals.
In terms of citizenship, this knowledge allows us to focus on a necessary goal: to act as pressure groups within Parliament, and to be part of the legislative change that we understand to be necessary.
As legal professionals, we have a mission to understand the origin of the laws, the issues being debated in Congress, and the projects being discussed in the legislative bodies.
It is part of the conflict resolution possibilities offered by the Democratic Rule of Law, which we have an obligation to defend.
References
BRAZIL. Chamber of Deputies. Standing Committees. Available at: https://www.camara.leg.br/comissoes/comissoes-permanentes.
BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Brasília, DF: Federal Senate: Graphic Center, 1988.
BRAZIL. Federal Senate. Permanent Parliamentary Committees. Available at: https://www12.senado.leg.br/institucional/estrutura/orgaosenado?codorgao=4609
CAVALCANTE FILHO, João Trindade. Constitutional Legislative Process. 4th ed. Salvador: Ed. JusPodivm, 2020.
