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CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, 1988
Стр 1 из 19Следующая ⇒
CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, 1988
We, the representatives of the Brazilian People, convened in the National Constituent Assembly to institute a Democratic State, for the purpose of ensuring the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, founded on social harmony and committed, in the internal and international orders, to the peaceful settlement of disputes, promulgate, under the protection of God, this CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL.
CHAPTER II - SOCIAL RIGHTS
Article 6. Education, health, work, habitation, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute, are social rights, as set forth by this Constitution.
The word "habitation" was included by CA nr. 26, Feb. 146h. 2000.
Article 7. The following are rights of urban and rural workers, among others that aim to improve their social conditions:
This clause was changed by CA nr. 28, May 25th 2000. The original text established that the limitation of rural workers was just 'two years counted from the end of the contract'.
XXX - prohibition of any difference in wages, in the performance of duties and in hiring criteria by reason of sex, age, colour or marital status;
Article 8. Professional or union association is free, with due regard to the following:
Article 9. The right to strike is guaranteed, it being the competence of workers to decide on the advisability of exercising it and on the interests to defended thereby.
Article 10. The participation of workers and employers is ensured in collegiate bodies of government agencies in which their professional or so security interests are subject of discussion and resolution.
Article 11. It is ensured, in companies with more than 200 employees, the election of a representative of the employees for the exclusive purpose of furthering direct negotiations with the employers.
CHAPTER III - NATIONALITY
Article 12. The following are Brazilians:
c)those born abroad, of a Brazilian father or a Brazilian mother, provided that they come to reside in the Federative Republic of Brazil and opt for the Brazilian nationality at any time;
Letter 'c' included by CA of Revision nr. 3, June 7th 1994.
II - naturalized:
Letter 'b' and Paragraph 1 : CA of Revision nr. 3, June 7th 1994.
Paragraph 2. The law may not establish any distinction between born and naturalized Brazilians, except in the cases stated in this Constitution.
VII - Minister of Defense.
Clause VII included by CA nr. 23, September 2nd. 1999.
Paragraph 4. Loss of nationality shall be declared for a Brazilian who:
II - acquires another nationality, save in the cases:
Clause II added by CA of Revision nr.3, June 7th 1994.
Article 13. Portuguese is the official language of the Federative Republic of Brazil.
CHAPTER II. THE UNION
Article 20. The following are property of the Union:
Words in purple added by CA 46, May 5th 2005.
V - the natural resources of the continental shelf and of the exclusive economic zone;
Article 21. The Union shall have the power to:
Clause XI added by CA 15, August 15th 1995. The former text was more detailed; the present text remits several matters to the law.
XII - operate, directly or through authorization, concession or permission:
Clause XII added by CA 15, August 15th 1995. Original text included the expression 'and other broadcasting means'.
b) the electric power services and facilities and the energetic exploitation of watercourses, jointly with the states wherein those hydro-energetic potentials are located;
Clause XIV amended by CA 19, June 4th 1998.
XV - organize and maintain the official services of statistics, geography, geology and cartography of national scope;
Clause XIV amended by CA 19, June 4th 1998.
XXIII - operate nuclear energy services and facilities of any nature, exercise state monopoly over research, mining, enrichment and reprocessing, industrialization and trade in nuclear ores and their by-products, taking into account the following principles and conditions:
Letters b, c, and of this clause were amended by CA 49, February 8th 2006. The CA supressed the regime of concession from letter b, removed the expression "as well as for other analogous activities" from letter b, added text of letter c, and turned former letter c into letter d.
c) under regime of permission, authorization is given for production, commercialization and utilization of radioisotopes with half-life equal to or shorter than two hours;
d) civil liability for nuclear damages does not depend on the existence of fault;
Article 22. The Union has the exclusive power to legislate on: I - civil, commercial, criminal, procedural, electoral, agrarian, maritime, aeronautical, space and labour law;
Clause XXVII amended by CA 19, June 4th 1998. The former text made no distinctions between the Administration and the public companies; as consequence, a big company like Petrobrás had to face the same restrictions as a public hospital to sign their contracts.
XXVIII - territorial defense, aerospace defense, maritime defense, civil defense, and national mobilization;
Article 23. The Union, the States, the Federal District and the municipalities, in common, have the power:
Article 24. The Union, the States and the Federal District have the power to legislate concurrently on:
CHAPTER VI - INTERVENTION
Article 34. The Union shall not intervene in the States or in the Federal District, except:
e) the application of the mandatory minimum of the income resulting from State taxes, including those originating from transfers, in the maintenance and development of education and in public health services.
Letter 'e' : CA nr. 29, September 13th 2000, added the words "and in public health services". Notice that this letter had been added to the original text by CA nr. 14, September 12th 1996.
Article 35. The state shall not intervene in its municipalities, neither the Union in the municipalities located in a federal territory, except when:
The words "and in public health services" were added by CA nr. 29, September 13th 2000.
IV - the Court of Justice grants a petition to ensure observance of the principles indicated in the state Constitution or to provide for the enforcement of the law, judicial order or decision.
Article 36. The issuance of a decree of intervention shall depend:
Final words added by CA nr. 45, Dec. 8th 2004.
Clause IV revoked by CA nr. 45, Dec. 8th 2004. Former text of clause IV established the Superior Tribunal of Justice as competent body to decree intervention in cases of refusal of enforcement of federal law; the CA nr. 45 assigned that competence to the Supreme Court.
Paragraph 1 - The decree of intervention, which shall specify the extent, the period and the conditions of enforcement and which, if pertinent, shall appoint the intervenor, shall be submitted to the National Congress or the State Legislative Assembly for consideration, within twenty-four hours.
SECTION II - CIVIL SERVANTS
Article 39. The Union, the States, the Federal District and the municipalities shall institute a council for policy of administration and remuneration of personnel, composed by civil servants appointed by the respective Powers.
Paragraph 1 - The definition of levels of salaries and other components of remuneratory system shall observe:
Paragraph 2 - The Union, the States and the Federal District shall maintain schools of government for the formation and improvement of the civil servants, the participaticion in courses being one of the requisites for promotion in the career, being allowed, for such, the signing of covenants or contracts between the entities of the Federation.
Caput, paragraphs 1 and 2: CA nr. 19, June 4th 1998.
Paragraph 3 - The provisions of article 7, IV, VII, VIII, IX, XII, XIII, XV, XVI, XVII, XVIII, XIX, XX, XXII, XXIII and XXX shall apply to these employees.
CA nr. 19, June 4th 1998, removed the item VI (irreducibility of salaries) from this paragraph.
Paragraph 4 - The member of a Power, the holder of elective office, the Ministers of State and the Secretaries of the States and municipalities shall be remunerated exclusively by subside determined in sole parcel, it being phohibited the addition of any gratification, additional, bonus, premium, representation allowance or any other kind of remuneration, with compliance, in any case, to the provisions of art. 37, X and XI.
Paragraph 5 - Law of the Union, States, Federal Distric of municipalities may establish a ratio between the highest and the lowest remuneration of civil servants, with compliance, in any case, to the provisions of art. 37, XI.
Paragraph 6 - The Executive, Legislative and Judiciary Powers shall publish annually the values of the subsides and remunerations of all public offices and positions.
Paragraph 7 - Law of the Union, States, Federal Distric of municipalities shall discipline the application of budgetary resources derived from savings with current expenses of each body, autarchy and foundation, for application in the development of programs of quality and productivity, training and development, modernization, refurbishment and rationalization of public service, including by means of an additional or bonus for productivity.
Paragraph 8 - The remuneration of civil servants organized in careers may be established in accordance to the provisions of paragraph 4.
Paragraphs 4, 5, 6, 7, and 8 added by CA nr. 19, June 4th 1998.
Article 40.Civil servants holding effective offices of the Union, the States, Federal District and municipalities, including autarchies and foundations, shall have rights to a social security regime, in a solidaire and contributive system, by means of contributions from the respective public entity, the active and retired servants and the pensionists, observing criteria to preserve the financial and long term balances and the dispositions of this article.
Article 40 and paragraphs were radically changed by CA 20, December 15th 1998, and CA 41, December 19th 2003. This article covers the social security system of the civil servants. The deficit of this system is the main cause of deficit in public budgets. Before CA 41, the system was participative, meaning that, regardless of how much the servant had contributed, the benefits were the same; only after CA 41 did the system become contributive, meaning that the benefits would be proportional to the contributions. Notice that CA 20 also made significant amends to article 201 of this Constitution, which regulates the social security of the employees of the private sector.
Paragraph 1. The servants included in the social security system subject of this article shall retire, with pensions calculated according to the provided for in paragraphs 3 and 17:
Paragraph 1 amended by CA 41, December 19th 2003.
I - for permanent disability, with pensions proportional to time of contribution, except in the cases of work accident, professional disease or a serious, contagious or incurable illness, as specified by law;
Clause I amended by CA 41, December 19th 2003.
II - compulsorily, at seventy years of age, with a pension proportional to the period of service;
Clause II amended by CA 20, December 15th 1998.
III - voluntarily, provided that a minimum term of ten years of effective office in public service and five years in the office in which the retirement will take place had been served, with observance of the following conditions:
Clause III amended by CA 20, December 15th 1998.
a) at age of sixty and upon thirty-five years of service, if a man, and at age fifty-five and upon thirty years, if a woman;
Text in purple added by CA 20, December 15th 1998.
b) at age of sixty-five, if man, and sixty, if woman, with pensions proportional to the period of contribution;
Letter b added by CA 20, December 15th 1998. The entire Clause III aimed at delaying the retirement of servants. Minimum ages were introduced, as well as minimum terms in public offices. Also, the CA changed the conditions for retirement of teachers (see paragraph 5 below). Read more at the end of this article.
Paragraph 2. The retirement compensation and the pension, at time of granting, shall not exceed the remuneration of the servant, in the office in which the retirement occurred or which was reference for the granting of the pension.
Text in purple added by CA 20, December 15th 1998.
Paragraph 3. The assessment of the retirement compensation, at time of granting, shall consider the remunerations used as reference to assess the contributions by the servant to the social security regime subject of this article and article 201, as prescribed by law.
Paragraph 3 added by CA 41, December 19th 2003.
Paragraph 4. The adoption of different requirements and criteria for granting of retirement to the participants of the regime subject of this article is prohibited, except in the cases, as prescribed by supplementary law, of servants:
Paragraph 4 added by CA 20, December 15th 1998 (introduced clause III), and amended by CA 45, July 5th 2005 (introduced clauses I and II).
Paragraph 5. The requirements of age and time of contribution established by paragraph 1, III, a, shall be reduced in five years, in the case of teachers who served exclusively in effective offices with educational functions in infant education and elementary and intermediary teaching.
Paragraph 6. Except in the cases of retirement of offices with permitted accumulation as determined by this Constitution, the granting of more than one retirement in account of the social security regime established by this article is prohibited.
Paragraphs 4, 5 and 6 amended by CA 20, December 15th 1998. Accumulation of offices: see article 37, XVI.
Paragraph 7. The law shall provide for the granting of pension benefits by death, which shall be equal to:
Paragraph 7 amended by CA 41, December 19th 2003.
Paragraph 8. The readjustment of benefits in order to preserve, in a permanent way, its real value, is mandatory, following criteria determined by law.
Paragraph 8 amended by CA 41, December 19th 2003.
Paragraph 9. The period of contribution to Federal, State or municipal entities shall be considered for retirement effects, and the respective periods of office shall be considered for disponibility effects.
Paragraph 9 amended by CA 20, December 15th 1998.
Paragraph 10. The law shall not establish any means of ficticious time of office.
Paragraph 10 amended by CA 20, December 15th 1998.
Paragraph 11. The limit set forth by art. 37, XI, shall be imposed to the total remuneration of retirement, including those derived from accumulation of public offices or positions, as well as other activities subject to contribution to the general regime of social security, and to the amount resultant from the addition of retirement benefits with the remuneration of office accumulated as permitted by this Constitution, offices declared by law as of free appointment and dismissal, and elective offices.
Paragraph 11 amended by CA 20, December 15th 1998. Article 37, XI, attempts to establish a limit to payments by public coffers. In the past, the lack of clarity allowed double interpretation (particularly by Judges, a party interested in the matter, as their salaries are among the highest in Brazil) which caused that limit to be frequently disobeyed. In an attempt to close these leap holes, all the norms regarding this matter became very detailed. See also article 37, XI.
Paragraph 12. In addition to the provisions of this article, the regime of social security of the civil servants holders of effective offices shall respect, when applicable, the requirements and criteria established for the general regime of social security.
Paragraph 12 amended by CA 20, December 15th 1998.
Paragraph 13. The servant holding, exclusively, comissioned offices declared by law as of free appointment and dismissal, as well as those holding other temporary offices or public positions, shall be submitted to the general regime of social security.
Paragraph 13 amended by CA 20, December 15th 1998.
Paragraph 14. The Union, States, Federal District and municipalities, provided that they institute a regime of supplementary social security for their servants holders of effective offices, shall be allowed to establish, for the payment of retirements and pensions granted under the regime subject of this article, the maximum limit set forth for the benefits of the general regime of social security in accordance with article 201.
Paragraph 14 amended by CA 20, December 15th 1998.
Paragraph 15. The regime of supplementary social security mentioned in paragraph 14 shall be instituted by law of initiative of the respective Executive Power, observing, when applicable, the provisions of art. 202 and paragraphs, by means of restricted entities of supplementary social security, of public nature, which shall offer to the respective participants only benefit plans of the kind of defined contribution.
Paragraph 15 amended by CA 41, December 19th 2003. Very controversial. This paragraph, for the first time, instituted the figure of a private social security system for public servants. See also paragraph 18.
Paragraph 16. In the case of servants who entered public service before the date of publication of the act which instituted the regime of supplementary social security, the provisions of paragraphs 14 and 15 shall be applicable only after previous and express concordance of the servant.
Paragraph 16 amended by CA 20, December 15th 1998.
Paragraph 17. All amounts of remuneration considered for the assessment of benefits as described in paragraph 3 shall be readjusted, as prescribed by law.
Paragraph 15 amended by CA 41, December 19th 2003.
Paragraph 18. A contribution to the social security shall be levied on the payments of retirements and pensions granted by the regime subject of this article which exceed the maximum limit established for the payments of the general regime of social security mentioned in art. 201, the percentage of the contribution being equal to that establishe for the servants holding effective offices.
Paragraph 18 amended by CA 41, December 19th 2003. Very controversial. This article determined that retired servants whose payments were above a treshold should pay contributions to the security system. The threshold, around R$ 2,700 or about ten minimum wages, was so high that the vast majority of servants was exempt from the contribution; the higher classes of servants, however, vocally protested against this paragraph and paragraph 15, which they considered to be "the privatization of social security in Brazil".
Paragraph 19. The servant who had met the requirements for voluntary retirement set forth by paragraph 1, II, a, and opt for continuing in office shall receive a bonus equal to the amount of his contribution to the social security system, until he meets the conditions for compulsory retirement set forth by paragraph 1, II.
Paragraph 19 amended by CA 41, December 19th 2003.
Paragraph 20. It is prohibited the existence of more than one regime of social security for servants holders of effective offices, as well as the existence of more than one managing institution for the respective regime in each government level, excepted the provisions of the article 142, paragraph 3, X.
Paragraph 20 amended by CA 41, December 19th 2003.
Original text of this article:
Paragraph 21. In case the beneficiary suffers of disabiliting disease, as provided by law, the contribution provided for by the paragraph 18 of this article shall levy only the portions of payments of retirement and pension which exceed the double of the maximum limit established for the payments of the general regime of social security subject of article 201 of this Constitution.
Paragraph 6 added by CA 47, July 5th 2005.
Article 41. Civil servants employed by virtue of public entrance examinations acquire tenure after three years of actual service.
CA nr. 19, June 4th 1998, changed original text from 'two years' to 'three years'.
Paragraph l - A tenured civil servant shall only lose his office:
III - by means of a periodical proceeding of performance evaluation, according to provisions seth forth by complementary law, ample defense being assured.
Item III added by CA nr. 19, June 4th 1998.
Paragraph 2 - If the dismissal of a tenured civil servant is voided by a judicial decision, he shall be reinstated, and the occupant of the vacancy, if tenured, shall be led back to his original office, with no right to indemnity, taken to another office or placed on paid availability with remuneration proportional to time in service.
Paragraph 3 - If the office is declared extinct or unnecessary, a tenured civil servant shall remain on paid availability,with remuneration proportional to time in service, until he is adequately placed in another office.
Paragraphs 2 and 3 altered by CA nr. 19, June 4th 1998.
Paragraph 4 - As condition for acquisition of tenure, it is mandatory the special evaliation of performance by a comission created with this finality.
Paragraph 4 added by CA nr. 19, June 4th 1998.
SECTION IV - THE REGIONS
Article 43. For administrative purposes, the Union may co-ordinate its action in one same social and geo-economic complex, seeking to attain its development and to reduce regional inequalities.
SECTION VI - THE SESSIONS
Article 57. The National Congress shall meet each year in the Federal Capital, from February 2nd to July 17th and from August 1st to December 2nd.
Article 57 amended by CA 50, February 14th 2006. This CA extended the period the Parliament should meet. Former text read: "The National Congress shall meet each year in the Federal Capital, from February 15th to June 30th and from August 1st to December 15th."
Paragraph 1 - If sessions scheduled for these dates fall on a Saturday, a Sunday or a holiday, they shall be transferred to the subsequent workday.
Paragraph 4 amended by CA 50, February 14th 2006. Original text read "Both Houses", meaning that Deputies and Senators should meet jointly; with the new text, the members of each House will meet independently.
Paragraph 5 - The Directing Board of the National Congress shall be presided by the President of the Federal Senate and the remaining offices shall be held, alternately, by the holders of equivalent offices in the Chamber of Deputies and in the Federal Senate.
Words in purple added by CA 50, February 14th 2006.
Paragraph 7 - In a special legislative session, the National Congress shall deliberate only upon the matter for which it was called, excepted the hypothesis of paragraph 8, the payment of indemnization on account of the calling being forbidden.
Text in purple added by CA 32, September 11th 2001, and later altered by CA 50, February 14th 2006.
Paragraph 8 - If provisional measures are in force during the period of special legislative session of the National Congress, they shall be automatically included in the voting list.
Paragraph 8 added by CA 32, September 11th 2001.
SUBSECTION III - THE LAWS
Letter c amended by CA 18, February 5th 1998. The original text contained references to the militaries, which are now referred to in the letter f.
d) organization of the Public Prosecution and of the Public Legal Defense of the Union, as well as general rules for the organization of the Public Prosecution and the Public Legal Defense of the states, the Federal District and the territories;
Letter e amended by CA 18, February 5th 1998. The original text read "creation, structuring and duties of the Ministries and public administration agencies;"
f) military of the Armed Forces, their legal statute, appointment to offices, promotions, tenure, remuneration, retirement, and transfer to the reserve.
Letter f added by CA 18, February 5th 1998.
Paragraph 2 - The initiative of the people may be exercised by means of the presentation to the Chamber of Deputies of a bill of law subscribed by at least one percent of the national electorate, distributed throughout at least five states, with not less than three-tenths of one percent of the voters in each of them.
Article 62 entirely changed by CA 32, September 11th 2001. Read comments at the end of the article.
Paragraph 1. No provisional measures should treat about matters:
Paragraph 2. Provisional measures which institute or increase taxes, except for the cases mentioned on arts. 153, I, II, IV, V and 154, II, will produce efects in the following financial exercize only if converted into law until the last day of the year in which it was issued.
Paragraph 3. Provisional measures, except for those mentioned on articles 11 and 12, will loose eficacy, since back to the issuing date, if not converted into laws within sixty days, extendable, once, according to the disposed on paragraph 7, for the same period of time, being up to the Congress to discipline, by means of a Legislative Decree, the juridic relations resulting of them
Paragraph 4. The period mentioned on paragraph 3 will be counted from the date of publication of the provisional measure, being suspended during the periods of recess of the Congress.
Paragraph 5. The deliberation of each House of Congress about the merit of provisional measures will depend on previous judgement on the meeting of the constitutional pre-conditions of admissibility;
Paragraph 6. If the provisional measure is not appreciated in the 45 days after publication, it will gain urgency regime status, subsequently, in each of the Houses of Congress, being postponed, until the end of its appreciation, all the other legislative deliberations of the House in which it is being examined.
Paragraph 7. The validity of a provisional measure will be extended once, for the same period, if, after sixty days counted from the publication, its appreciation is not concluded on both Houses of Congress.
Paragraph 8. Provisional measures will be voted first by the Chamber of Deputies.
Paragraph 9. It will be up to a Committee composed by Deputies and Senators to examin the provisional measures and to issue an opinion about them, before being voted, in separated sessions, by the plenarium of each House of Congress.
Paragraph 10. Provisional measures which were rejected or had lost efficacy can not be reissued in the same legislative session.
Paragraph 11. If the legislative decree mentioned on paragraph 3 is not edited within sixty days after rejection or decay of provisional measure, the juridic relations constituted and consequential of acts practiced during its validity will remain regulated by them.
Paragraph 12. If the draft of law of conversion changing the original text of provisional measure is approved, the measure will remain in full force until being sanctioned or vetoed by the President.
Article 62 entirely changed by CA 32, September 11th 2001. This article used to have only the caput and one short paragraph; the CA changed the caput and original paragraph, and added eleven paragraphs. However, it became a consensus that the Executive Power had been given excessive powers to use Provisional Measures, and was misusing those powers. It became a common practice, for example, that the President of the Republic issued a provisional measure and, on expiration, re-issued it with exactly the same text; the measure which instituted the Real Plan, for example, was re-issued over eighty months; in practice, the Executive was legislating, withouth the participation of the Legislative. The CA 32 intended to rectify these problems.
Article 63. An increase in expenditure proposals shall not be admitted: I - in bills of the exclusive initiative of the President of the Republic, except for the provisions of article 166, paragraphs 3 and 4;
Article 64. The discussion and voting of the bills of law which are the initiative of the President of the Republic, the Supreme Federal Court and of the Superior Courts shall start in the Chamber of Deputies.
Text in purple added by CA 32, September 11th 2001.
Paragraph 3 - Amendments of the Federal Senate shall be examined by the Chamber of Deputies within a period of ten days, in accordance, otherwise. with the provisions of the preceding paragraph.
Article 65. A bill of law approved by one House shall be reviewed by the other in a single reading of discussing and voting and sent for sanctioning or promulgation, if approved by the reviewing House, or it shall be dismissed, if rejected.
Article 66.The House in which voting is concluded shall send the bill of law to the President of the Republic, who, if he concurs, shall sanction it.
Paragraph 6 was changed by CA 32, September 11th 2001. The original text contained the expression: "except for the matters referred to in article 62, sole paragraph."
Paragraph 7 - If, in the cases of paragraphs 3 and 5, the law is not promulgated within forty-eight hours by the President of the Republic, the President of the Senate shall enact it and if the latter fails to do so within the same period, the Vice-President of the Senate shall do so.
Article 67.The matter dealt with in a rejected bill of law may only be the subject of a new bill during the same legislative session, upon proposal of the absolute majority of the members of either House of the National Congress.
Article 68. Delegated laws shall be drawn up by the President of the Republic, who shall request delegation from the National Congress.
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