September 22nd, 2017

Legal Newsletter

Control of Constitutionality of Proposals

submitted to the Appreciation of the Commission of Constitution, Justice and Citizenship
by Daniella Barbosa Pereira

The Commission of Constitution, Justice and Citizenship has a relevant role in the preventive control of constitutionality, whose primary function is to analyze the compatibility of legislative bills with the text of the Federal Constitution.

Legal Newsletter

The Commission of Constitution, Justice and Citizenship has a relevant role in the preventive control of constitutionality, whose primary function is to analyze the compatibility of legislative bills with the text of the Federal Constitution.

Reference to a technical body, in the history of the Chamber of Deputies, aimed at analyzing the constitutionality of propositions, goes back to the Rules of Procedure of 1823, which referred to a "Constitution Commission". (according to Cascelli, 2001, p.38).

In following years, the Rules of Procedure of the House of Representatives even referred to a "Constitution Guard Commission”, “Commission of Constitution and Powers”, “Constitution, Legislation and Justice Commission" and "Commission, Legislation and Justice".
Only in 1920, however, the attributions of the Constitution and Justice Commission were established: "Art. 68. The Constitutional and Justice Commission must express its views on all subjects regarding its juridical, legal or constitutional aspects". (Cascelli, 2001).

According to Cascelli (2001), in 1949 its competence was extended, making the attribution for analysis of the formal legal control of all propositions explicit, on the one hand, and, on the other hand, the consideration of matters of interest to the Commission, that is to say , the merits of which were conferred to the Commission by the Rules of Procedure.

The 1972 Rules of Procedure introduced the terminating effect of the Commission's decisions: if two-thirds of any group of Courts members (”Turma”, in Portuguese) or if the absolute majority of the members considered a particular proposition or relevant part of it to be unconstitutional, the matter would be referred immediately to the Plenary of the House for prior discussion . If the Plenary confirmed the decision of the Commission, it would be sent to the archives. Otherwise, matter would return to its normal processing (Cascelli, 2001, p.41).

Years later the text was perfected and it was established that, from the decision of unconstitutionality, the proposition would be automatically filed by the president of the House. Another novelty was the possibility of an appeal by the proposer or a party Leader in up to fifteen sessions, with the intention of being considered by the Plenary, of the opinion of the Commission. In this case, if the opinion was maintained, the matter would go automatically to the archives. Otherwise, it would be processed again.
The first important aspect in relation to the Commission on Constitution and Justice and Citizenship is the so-called terminating opinion, provided for in art. 54 of the Rules of Procedure. An opinion may be considered conclusive as to the constitutionality or legality of the proposition.

The analysis of constitutionality in the Commission is carried out from a technical perspective, with the purpose of verifying that the propositions are in agreement with the precepts established in the Constitution. As far as legality is concerned, there is an analysis of the adaptation of principles that form the legal order to the Constitution.

The illegality of a proposition can be ascertained from the perception of a conflict with the principles enshrined in the legal system, which are explicitly positive. To this end, the proposition must contain illogical and unreasonable elements which, even in a more thorough observation, can be detected, since they are contrary to common sense. (Cascelli, 2001).

In addition to constitutionality and legality, one cannot ignore the political aspect used in the analysis of proposals by the Commission on Constitution and Justice and Citizenship. According to Cascelli (2001), the term "politics" has different meanings, and there is a tendency to highlight, when one speaks of politics within the parliament, a strictly partisan meaning, that is inseparable from it. And it is precisely in this political context that the interference of pressure groups emerges, which are also inseparable from the deliberations of the Commission.

At present, in any case, the CCJC presents the so-called terminating opinion, which, if negative (for the unconstitutionality or illegality or both), annihilates the proposition and refers it to the archives, unless there is an appeal. The presentation of an appeal motivates the preliminary assessment in the Plenary, according to art. 144 et seq. of the Rules of Procedure.

Among the standing committees, the CCJC is the only one that is competent to examine the constitutionality of the propositions. Even when the matter goes to the House Plenary, if there is no time for appreciation in the Committee, due to political circumstances, one of its members must still be appointed to draft an opinion on constitutionality, legality and legislative technique, replacing the collegiate organ.
In addition, the CCJC's reiterated decisions gradually consolidated the Commission's understanding of certain issues, and also the use of the regimental mechanism (Article 62, IX), which provides for the organization of the memorandum of understanding (in Portuguese, “Súmula de Entendimento”. The Commission can therefore offer technical support to the President of the Chamber in order to alleviate any political embarrassment, by returning the proposals that are flagrantly unconstitutional.

As stated earlier, in practice, the political aspect, when a certain matter is being assessed, can prevail over the constitutional aspects. The memorandums are just a reference for the activities of the House. Therefore, this constitutionality control is mitigated, since the decisions that come from the Commission are not tied to precedents, which weakens the legislative process. If they exist and were created, they should be taken into account at the time of deliberation and voting.

Despite the existence of guidelines on aspects of constitutionality and legality, the presence of pressure groups generates interference in the decisions. In fact, the problem is not the existence of these groups, considering the fact that, with the 1988 Constitution, a new perspective came to light, when it brought in its text ample popular participation in decision-making. Moreover, within the scope of the Constitution there are elements that legitimize the activity, as a lawful practice of fight for different concerns and needs in the scope of the creation of laws.

What we should be aware of is that interest groups are unofficial representations, which adopt a direct attitude of influence and pressure on public authorities, especially in the Executive and Legislative sphere. The problem is the way in which these interferences occur.

Therefore, in many cases the control of preventive constitutionality that must be exercised by the Commission on Constitution and Justice and Citizenship is relative, since the political issues end up prevailing over constitutional ones.

The impossibility of resourcing to favorable opinions produced by the Commission of Constitution and Justice and of Citizenship, that is, that recognize the constitutionality and legality of a proposal, weakens the control of constitutionality.

When the CCJC approves an opinion for the unconstitutionality or illegality of the subject considered, it will not be filed only if it is subject to an appeal, which will cause it to be submitted to the Plenary in a preliminary assessment.

The preliminary assessment only occurs if the CCJC's opinion is unfavorable. This is praxis and has been the interpretation of the majority of the House. There should be a possibility of appealing against the CCJC's final opinion, whether favorable or not.

If the CCJC concludes for the constitutionality, there would be no possibility of the matter being taken to Plenary, which ends the appreciation by the House. An appeal at this stage is of paramount importance in order to safeguard the constitutionality control. Only one resource is capable of subjecting the matter to the screening of parliamentarians in the Plenary. And, thus, solidifying a more democratic and efficient of control of constitutionality in the creation of laws and of the legislative sphere.

AZEVEDO, Luiz H. Cascelli de. O Controle Legislativo de Constitucionalidade. 1st ed. Porto Alegre: Sergio Antonio Fabris Editor, 2001.
BRAZIL. Constitution of the Federative Republic of Brazil. 31st edition. São Paulo. Saraiva, 2009.
BRAZIL. Congress. Chamber of Deputies. Internal Rules of the Chamber of Deputies. [electronic resource]: approved by Resolution No. 17 of 1989, and amended until Resolution No. 20, of 2016. - 18. ed. - Brasília: Chamber of Deputies, Editions Câmara, 2017.