CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, 1988




ЗНАЕТЕ ЛИ ВЫ?

CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, 1988



CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL, 1988

PREAMBLE

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:
I - employment protected against arbitrary dismissal or against dismissal without just cause, in accordance with a supplementary law which shall establish severance-pay, among other rights;
II - unemployment insurance, in the event of involuntary unemployment;
III - severance-pay fund;
IV - nationally unified minimum wage, established by law, capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to use it as an index for any purpose;
V - a salary floor in proportion to the extent and complexity of the work;
VI - irreducibility of the wages, except when established in collective agreement or covenant;
VII - guarantee of wages never below the minimum one, for those receiving variable pay;
VIII - year-end one-salary bonus based on the full pay or on the amount of the pension;
IX - payrate for night-shift work higher than that for daytime work;
X - wage protection, as provided by law, with felonious withholding of wages being a crime;
XI - participation in the profits or results, independent of wages, and, exceptionally, participation in the management of the company, as defined by law;
XII - family allowance, to be paid on behalf of the dependents of the low income worker, as defined by law;
XIII - normal working hours not exceeding eight hours per day and forty-four hours per week, with the option of compensating working hours and reducing the length of the workshifts through an agreement or a collection bargaining covenant;
XIV - a workday of six hours for work carried out in continuous shifts, unless otherwise established by collective negotiation;
XV - paid weekly leave, preferably on Sundays;
XVI - rate of pay for overtime at least fifty per cent higher than that of normal work;
XVII - annual vacation with remuneration at least one third higher than the normal salary;
XVIII - maternity leave without loss of job and of salary, for a period of one hundred and twenty days;
XIX - paternity leave, under the terms established by law;
XX - protection of the labour market for women through specific incentives, as provided by law;
XXI - notice of dismissal in proportion to the length of service of at least thirty days, as provided by law;
XXII - reduction of work related risks by means of health, hygiene and safety provisions;
XXIII - additional remuneration for strenuous, unhealthy or dangerous work, as established by law;
XXIV - retirement pension;
XXV - free assistance for children and dependents from birth to six years of age, in day-care centres and pre-school facilities;
XXVI - recognition of collective bargaining agreements and covenants;
XXVII - protection on account of automation, as established by law;
XXVIII - occupational accident insurance, to be paid for by the employer, without excluding the employer's liability for indemnity in the event of malice or fault;
XXIX - legal action with respect to credits arising from employment relationships with a prescription of five years for urban and rural workers, up to the limit of two years after the end of the employment contract;

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;
XXXI - prohibition of any discrimination with respect to wages and hiring criteria of handicapped workers;
XXXII - prohibition of any distinction between manual, technical and intellectual work or among the respective professionals;
XXXIII - prohibition of night, dangerous or unhealthy work for minors under eighteen years of age, and of any work for minors under fourteen years of age, except as an apprentice;
XXXIV - equal rights for workers with a permanent employment bond and for sporadic workers.
Sole paragraph - The category of domestic servants is ensured of the rights set forth in items IV, VI, VIII, XV, XVII, XVIII, XIX, XXI and XXIV, as well as of integration in the social security system.

Article 8. Professional or union association is free, with due regard to the following:
I - the law may not require authorization of the State for a union to be founded, except for authorization for registration with the competent agency, it being forbidden to the Government the interference and the intervention in the union;
II - it is forbidden to create more than one union, at any level, representing a professional or economic category, in the same territorial base, which shall be defined by the workers or employers concerned, and which may not cover less than the area of one municipality;
III - it falls to the union to defend the collective or individual rights and interests of the category, including legal or administrative disputes;
IV - the general assembly shall establish the contribution which, in the case of a professional category, shall be discounted from the payroll, to support the confederative system of the respective union representation, regardless of the contribution set forth by law;
V - no one shall be obliged to join or to remain a member of a union;
VI - the collective labor bargainings must be held with the participation of unions;
VII - retired members shall be entitled to vote and be voted on in unions;
VIII - the dismissal of a unionised employee is forbidden from the moment of the registration of his candidacy to a position of union direction or representation and, if elected, even if as a substitute, up to one year after the end of his term in office, unless he commits a serious fault as established by law.
Sole paragraph - The provisions of this article apply to the organization of rural unions and those of fishing communities, with due regard for the conditions established by law.

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.
Paragraph 1. The law shall define the essential services or activities and shall provide with respect to the satisfaction of the community's undelayable needs.
Paragraph 2. The abuses committed shall subject those responsible to penalties of the law.

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:
I - by birth:
a) those born in the Federative Republic of Brazil, even if of foreign parents, provided that they are not at the service of their country;
b) those born abroad, of a Brazilian father or a Brazilian mother, provided that either of them is at the service of the Federative Republic of Brazil:

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:
a) those who, as set forth by law, acquire Brazilian nationality, it being the only requirement for persons originating from Portuguese-speaking countries the residence for one uninterrupted year and good moral repute;
b) foreigners of any nationality, resident in the Federative Republic of Brazil for over fifteen uninterrupted years and without criminal conviction, provided that they apply for the Brazilian nationality.
Paragraph 1. The rights inherent to Brazilians shall be attributed to Portuguese citizens with permanent residence in Brazil, if there is reciprocity in favour of Brazilians, except in the cases stated in this Constitution.

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.
Paragraph 3. The following offices are exclusive for born Brazilians:
I - those of President and Vice-President of the Republic;
II - that of President of the Chamber of Deputies;
III - that of President of the Federal Senate;
IV - that of Justice of the Supreme Federal Court;
V - those of the diplomatic career;
VI - that of officer of the Armed Forces.

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:
I - has his naturalization cancelled by court decision on account of an activity harmful to the national interests;

II - acquires another nationality, save in the cases:
a) of recognition of the original nationality by the foreign law;
b) of imposition of naturalization, under the foreign rules, to the Brazilian resident in a foreign State, as a condition for permanence in its territory, or for the exercise of civil rights.

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.
Paragraph 1. The national flag, anthem, coat of arms and seal are the symbols of the Federative Republic of Brazil.
Paragraph 2. The states, the Federal District and the municipalities may have symbols of their own.

CHAPTER II. THE UNION

 

Article 20. The following are property of the Union:
I - the property which presently belongs to it as well as that which may be attributed to it;
II - the unoccupied lands essential to the defense of the boundaries, the fortifications and military constructions, the federal routes of communication and the preservation of the environment, as defined by law;
III - the lakes, rivers and any watercourses in lands within its domain or that wash more than one State, that serve as boundaries with other countries or that extend into foreign territory or proceed therefrom, as well as bank lands and river beaches;
IV - the river and lake islands in zones bordering with other countries, the sea beaches, the ocean and off-shore islands, excluded the islands which are seats of municipalities, excepted those areas of interest to pubic service and federal environment unity, and those referred to in article 26, II;

Words in purple added by CA 46, May 5th 2005.

V - the natural resources of the continental shelf and of the exclusive economic zone;
VI - the territorial sea;
VII - tide lands and those added to them;
VIII - the hydraulic energy potentials;
IX - the mineral resources, including those of the subsoil;
X - the natural underground cavities and the archaeological and historic sites;
XI - those lands traditionally occupied by the Indians.
Paragraph 1 - In accordance with the law, the participation in the results of the exploitation of petroleum or natural gas, hydric resources for the purpose of generation of electric power and other mineral resources in the respective territory, continental shelf, territorial sea or exclusive economic zone, financial compensation for the exploitation thereof, is assured to the States, Federal District and the municipalities, as well as to agencies of the administration of the Union.
Paragraph 2 - The strip of land up to a hundred and fifty kilometers in width alongside the terrestrial boundaries, designated as boundary zone, considered essential to the defense of the national territory and its occupation and utilization shall be regulated by law.

Article 21. The Union shall have the power to:
I - maintain relations with foreign states and participate in international organizations;
II - declare war and make peace;
III - ensure national defense;
IV - allow foreign forces, in the cases provided for in a supplementary law, to pass through the national territory or to remain therein temporarily;
V - declare a state of siege, a state of defense and federal intervention;
VI - authorize and control the production and trade of military materiel;
VII - issue currency;
VIII - manage the foreign exchange reserves of the country and control financial operations, especially those of credit, exchange and capitalization, as well as insurance and private security;
IX - prepare and carry out national and regional plans for the ordaining of the territory and for economic and social development;
X - maintain the postal service and the national air mail;
XI - operate, directly or through authorization, concession or permission, the telecommunications services, as set forth by law, which law shall provide for the organization of the services, the establishment of a regulatory agency and other institutional issues;

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:
a) the services of sound broadcasting and of sound and image broadcasting;

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;
c) air and aerospace navigation and airport infrastructure;
d) railway and waterway services between seaports and national borders or which cross the boundary of a state or territory;
e) interstate and international highway passenger transportation services;
f) sea, river and lake ports;
XIII - organize and maintain the Judicial Power, the Public Prosecution and the Public Legal Defense of the Federal District and territories;
XIV - organize and maintain the civil police, the military police and the fire brigade of the Federal District, as well as providing financial assistance to the Federal District for the execution of public services, by means of an specific fund;

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;
XVI - classify, for indicative purposes, public entertainment and television programs;
XVII - grant amnesty;
XVIII - plan and promote permanent defense against public disasters, especially droughts and floods;
XIX - establish a national system for the management of hydric resources and define criteria for the concession of the right to their use;
XX - establish directives for urban development, including housing, basic sanitation and urban transportation;
XXI - establish principles and directives for the national transportation system;
XXII - perform the services of maritime, air, and border police;

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:
a) all nuclear activity within the national territory shall only be admitted for peaceful purposes and subject to approval by the National Congress;
b) under regime of permission, authorization is given for the utilization of radioisotopes in research and for medical, agricultural and industrial use;

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;
XXIV - organize, maintain and carry out inspection of working conditions;
XXV - establish the areas and conditions for the exercise of placer mining activities in associative form.

Article 22. The Union has the exclusive power to legislate on: I - civil, commercial, criminal, procedural, electoral, agrarian, maritime, aeronautical, space and labour law;
II - expropriation;
III - civil and military requisitioning, in case of imminent danger or in times of war;
IV - waters, energy, informatics, telecommunications and radio broadcasting;
V - the postal service;
VI - the monetary and measures systems, metal certificates and guarantees;
VII - policies for credit, foreign exchange, insurance and transfer of values;
VIII - foreign and interstate trade;
IX - guidelines for the national transportation policy;
X - the regime of the ports and lake, river, ocean, air and aerospace navigation;
XI - traffic and transportation;
XII - beds of ore, mines, other mineral resources and metallurgy;
XIII - nationality, citizenship and naturalization;
XIV - Indian populations;
XV - emigration, immigration, entry, extradition and expulsion of foreigners;
XVI - the organization of the national employment system and conditions for the practice of professions;
XVII - the judicial organization of the Public Prosecution and of the Public Legal Defense of the Federal District and of the territories, as well as their administrative organization;
XVIII - the national statistical, cartographic and geological systems;
XIX - systems of savings, as well as of obtaining and guaranteeing popular savings;
XX - consortium and lottery systems;
XXI - general organization rules, troops, material, guarantees, drafting and mobilization of the military police and military fire brigades;
XXII - the jurisdiction of the federal police and of the federal highway and railway polices;
XXIII - welfare;
XXIV - directives and bases of the national education;
XXV - public registers;
XXVI - nuclear activities of any nature;
XXVII - general rules for all types of bidding and contracting, with observance of the art. 37, XXI, in the case of the direct public administration, autarchies and foundations of the Union, States, Federal District and municipalities, and of the art. 173, paragraph 1, III, in the case of public companies and public corporations;

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.
Read comments about the bidding legislation in Brazil.

XXVIII - territorial defense, aerospace defense, maritime defense, civil defense, and national mobilization;
XXIX - commercial advertising.
Sole paragraph - A supplementary law may authorize the States to legislate upon specific questions related to the matters listed in this article.

Article 23. The Union, the States, the Federal District and the municipalities, in common, have the power:
I - to ensure that the Constitution, the laws and the democratic institutions are respected and that public property is preserved;
III - to provide for health and public assistance, for the protection and safeguard of handicapped persons;
III - to protect the documents, works and other assets of historical, artistic or cultural value, the monuments, the remarkable landscapes and the archaeological sites;
IV - to prevent works of art and other assets of historical, artistic and cultural value from being taken out of the country, destroyed or from being deprived of their original characteristics;
V - to provide the means of access to culture, education and science;
VI - to protect the environment and to fight pollution in any of its forms;
VII - to preserve the forests, fauna and flora;
VIII - to promote agriculture and cattle breeding and organize the supply of foodstuff;
IX - to promote housing construction programs and the improvement of housing and basic sanitation conditions;
X - to fight the causes of poverty and the factors leading to substandard living conditions, promoting the social integration of the unprivileged sectors of the population;
XI - to register, monitor and control the concessions of rights to research and exploit hydric and mineral resources within their territories;
XII - to establish and to implement an educational policy for traffic safety.
Sole paragraph - A supplementary law shall establish rules for the cooperation among the Union and the States, the Federal District and the municipalities aiming at the attainment of balanced development and well- being on a nationwide scope.

Article 24. The Union, the States and the Federal District have the power to legislate concurrently on:
I - tax, financial, penitentiary, economic and urbanistic law;
II - budget;
III - trade boards;
IV - costs of forensic services;
V - production and consumption;
VI - forests, hunting, fishing, fauna, preservation of nature, defense of the soil and natural resources, protection of the environment and control of pollution;
VII - protection of the historic, cultural and artistic heritage, as well as of assets of touristic interest and landscapes of outstanding beauty;
VIII - liability for damages to the environment, to consumers, to assets and rights of artistic, aesthetic, historical, and touristic value, as well as to remarkable landscapes;
IX - education, culture, teaching and sports;
X - establishment, operation and procedures of small claims courts;
XI - judicial procedures;
XII - social security, protection and defense of health;
XIII - legal assistance and public defense;
XIV - protection and social integration of handicapped persons;
XV - protection of childhood and youth;
XVI - organization, guarantees, rights and duties of the civil policies.
Paragraph 1 - Within the scope of concurrent legislation, the competence of the Union shall be limited to the establishment of general rules.
Paragraph 2 - The competence of the Union to legislate upon general rules does not exclude the supplementary competence of the States
Paragraph 3 - If there is no federal law or general rules, the States shall exercise full legislative competence to provide for their peculiarities.
Paragraph 4 - The supervenience of a federal law over general rules suspends the effectiveness of a state law to the extent that the two are contrary to each other.

CHAPTER VI - INTERVENTION

 

Article 34. The Union shall not intervene in the States or in the Federal District, except:
I - to maintain national integrity;
II - to repel foreign invasion or that of one unit of the Federation into another;
III - to put an end to serious jeopardy to public order;
IV - to guarantee the free exercise of any of the powers of the units of the Federation;
V - to reorganize the finances of a unit of the Federation that:
a) stops the payment of Its funded debt for more than two consecutive years, except for reasons of force majeure;
b) fails to deliver to the municipalities the tax revenues established in this Constitution, within the periods of time set forth by law;
VI - to provide for the enforcement of federal law, judicial order or decision;
VII - to ensure compliance with the following constitutional principles:
a) republican form, representative system and democratic regime;
b) rights of the human person;
c) municipal autonomy;
d) rendering of accounts of the direct and indirect public administration

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:
I - the funded debt is not paid for two consecutive years, without reasons of force majeure;
II - the due accounts are not rendered, in the manner prescribed by law;
III - the minimum required amount of the municipal revenues has not been applied in the maintenance and development of education and in public health services;

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:
I - in the case of article 34, IV, on a request from the coerced or impeded Legislative or Executive Power or on a requisition from the Supreme Federal Court, if the coercion is exercised against the Judicial Power;
II - in case of disobedience to a judicial order or decision, on a requisition from the Supreme Federal Court, the Superior Court of Justice or the Superior Electoral Court;
III - on the granting of a petition from the Attorney-General of the Republic by the Supreme Federal Court, in the case of article 34, VII, and in the case of refusal of enforcement of federal law;

Final words added by CA nr. 45, Dec. 8th 2004.

IV -

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.
Paragraph 2 - If the National Congress or the Legislative Assembly are not in session, a special session shall be called within the same twenty- four hours.
Paragraph 3 - In the case of article 34, VI and VII, or article 35, IV, when the consideration by the National Congress or the Legislative Assembly may be waived, the decree shall be limited to suspending the enforcement of the impugned act, if such measure suffices to restore normality.
Paragraph 4 - Upon cessation of the reasons that caused the intervention, the authorities removed from their offices shall return to them, unless there is some legal impediment.

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:
I - the nature, the degree of responsibility and the complexity of the offices which compose each career;
II - the requisites for investiture;
III - the peculiarities of the offices.

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.
The items of this paragraph refer, respectively, to the following rights: minimum salary; guarantee of salary; bonus (13th) salary; increase of salary of night shift; family allowance; limits of shift duration; paid weekly leave; increase of salary of overtime working; annual vacation; maternity leave; paternity leave; protection of labour market for women; reduction of work related risks; prohibition of difference in wages.

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:
I - handicapped;
II - who exercize activies of risk;
III - whose activities are conducted under special conditions, prejudicial to health or physical integrity.

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:
I - the amount of the total compensation of the deceased servant, up until the maximum limit established for the benefits of the general regime of social security mentioned by article 201, plus seventy percent of the amount which exceed this limit, if the servant is retired at time of deceasing; or
II - the amount of the total remuneration of the servant in the office held at time of deceasing, up until the limit established for the benefits of the general regime of social security mentioned by article 201, plus seventy percent of the amount which exceed this limit, if the servant is retired at time of deceasing.

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:
A civil servant shall go into retirement:
I - for permanent disability, receiving full pension if such disability results from a work accident, professional disease or a serious, contagious or incurable illness, as specified by law, and proportional pension in all other cases;
II - compulsorily, at seventy years of age, with a pension proportional to the period of service;
III - voluntarily:
a) upon thirty-five years of service, if a man, and upon thirty years, if a woman, with full pay;
b) upon thirty years of effective exercise in teaching positions, if a man, and upon twenty-five years, if a woman, with full pay;
c) upon thirty years of service, if a man, and upon twenty-five years, if a woman, with pay in proportion to this period;
d) at sixty-five years of age, if a man, and at sixty, if a woman, with pay in proportion to the period of service.
Paragraph 1 - A supplementary law may establish exceptions to the provisions of item III, a and c, in the case of the exercise of activities considered strenuous, unhealthy or dangerous.
Paragraph 2 - The law shall provide for retirement in temporary offices or positions.
Paragraph 3 - The period of federal, state or municipal public service shall be calculated in full for purposes of retirement and placement on paid availability
Paragraph 4 - The retirement pension shall be revised, in the same proportion and on the same date, whenever the remuneration of the servants in activity is changed, and any benefits or advantages subsequently granted to the servants in activity shall also be extended to the retired servants, including those resulting from the transformation or reclassification of the office or function from which they retired, as the law provides.
Paragraph 5 - The benefit of pension for death shall correspond to the full salary or earnings of the deceased employee, up to the limit established in law, complying with the provisions of the preceding paragraph.
Paragraph 6 - The retirement and pension benefits of the federal civil servants shall be financed by resources originating from the Union and from the contributions of the civil servants. under the terms of the law.

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:
I - by force of an unappealable judicial decision;
II - by means of an administrative process, in which he is assured ample defense;

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.
Paragraph 1 - A supplementary law shall provide for:
I - the conditions for the integration of developing regions;
II - the composition of the regional agencies which shall carry out, as provided by law, the regional plans included in the national social and economic development plans approved concurrently;
Paragraph 2 - The regional incentives shall include, besides others, as prescribed by law:
I - equality of tariffs, freight rates, insurance and other cost and price items which are within the responsibility of the Government;
II - favoured interest rates for the financing of priority activities;
III - exemptions, reductions or temporary deferment of federal taxes owed by individuals or by legal entities;
IV - priority in the economic and social use of rivers and dammed or dammable water masses in low-income regions subject to periodical droughts.
Paragraph 3 - In the areas referred to in paragraph 2, IV, the Union shall grant incentives to the recovery of arid lands and shall cooperate with small and medium-size rural landowners in the implementing of water sources and small-scale irrigation in their tracts of land.

«Title III Index Title V»

 

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 2 - The legislative session shall not be interrupted before the approval of the bill of budgetary directives .
Paragraph 3 - In addition to other cases provided for in this Constitution the Chamber of Deputies and the Federal Senate shall meet in a joint session to:
I - inaugurate the legislative session;
II - draw up the common regulations and regulate the creation of services common to both Houses;
III - take the oath of the President and of the Vice-President of the Republic;
IV - acknowledge a veto and resolve thereon.
Paragraph 4 - Each of the Houses shall meet in a preparatory session, beginning February 1 of the first year of the legislative term, for the installation of its members and the election of the respective Directing Boards, for a term of office of two years, the re-election to the same office in the immediately subsequent election being prohibited.

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.
Paragraph 6 - Special sessions of the National Congress shall be called:
I - by the President of the Federal Senate, in the event of a decree of a state of defense or of federal intervention, of a demand for the authorization to decree a state of siege and the taking of oath and inauguration of the President and the Vice-President of the Republic;
II - by the President of the Republic, by the Presidents of the Chamber of Deputies and of the Federal Senate or by request of the majority of the members of both Houses, in case of urgency or important public interest, in any case with the approval by the absolute majority of each of the Houses of the National Congress.

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.
It used to be the case that, to work in special legislative sessions, Congressmen were paid an 'indemnization' substiantially higher than normal salaries; CA 32 limited the indemnization to one normal monthly salary; CA 50 abolished the indemnization altogether (Congressmen receive only normal salaries).

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


Article 61. The initiative of supplementary and ordinary laws is within the competence of any member or committee of the Chamber of Deputies and the Federal Senate or the National Congress, the President of the Republic, the Supreme Federal Court, the Superior Courts, the Attorney-General of the Republic and the citizens, in the manner and in the cases provided for in this Constitution.
Paragraph 1 - It is the exclusive initiative of the President of the Republic to introduce laws that:
I - determine or modify the number of Armed Forces troops;
II - provide for:
a) creation of public offices, functions or positions in the direct administration and in autonomous Government agencies or increases in their salaries;
b) administrative and judicial organization, tax and budgetary matters, public services and administrative personnel of the territories;
c) civil servants of the Union and Territories, their legal statute, appointment to offices, tenure and retirement;

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;
e) creation and extinction of the Ministries and public administration agencies, with due regard to the article 84, VI;

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. In important and urgent cases, the President of the Republic may adopt provisional measures with the force of law and shall submit them to the National Congress immediately.

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:
I - relative to:
a) nationality, citizenship, political rights, political parties and electoral rights;
b) criminal laws, criminal process and civil process; c) organization of Judiciary Power, Public Prosecution, the career and guarantees of their members;
d) pluriannual plans, budgetary directives, annual budgetary law, aditional and supplementary credits, except what is mentioned on art. 167, paragraph 3;
II - which refer to levy or retetion of assets, popular savings or any other financial assets;
III - reserved to supplementary laws;
IV - already disciplined by a law approved by Congress and awaiting sanction or veto by the President;

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;
III - in bills concerning theca organization of the administrative services of the Chamber of Deputies, the Federal Senate, the Federal Courts and the Public Prosecution.

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.
Paragraph 1 - The President of the Republic may request urgency in the examination of bills of his own initiative.
Paragraph 2 - If, in the case of the preceding paragraph, the Chamber of Deputies and the Federal Senate fail to act, each one, successively on the proposition, within up to forty-five days, the deliberation upon other subjects shall be suspended, except for those which have specific Constitutional deadlines, in order that the voting may be concluded.

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.
Paragraph 4 - The periods of time referred to in paragraph 2 shall not be counted while the Congress is in recess and shall not apply to the bills of codes.

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.
Sole paragraph - If the bill is amended, it shall return to the House where it was proposed.

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 1 - If the President of the Republic considers the bill of law, wholly or in part, unconstitutional or contrary to public interest, he shall veto it, wholly or in part, within fifteen work days, counted from the date of receipt and he shall, within forty-eight hours, inform the President of the Senate of the reasons of his veto.
Paragraph 2 - A partial veto shall only comprise the full text of an article, paragraph, item or subitem.
Paragraph 3 - After a period of fifteen days, the silence of the President of the Republic shall be considered as sanctioning.
Paragraph 4 - The veto shall be examined in a joint session, within thirty days, counted from the date of receipt, and may only be rejected by the absolute majority of the Deputies and Senators, by secret voting.
Paragraph 5 - If the veto is not upheld, the bill shall be sent to the President of the Republic for promulgation.
Paragraph 6 - If the period established in paragraph 4 elapses without a decision being reached, the veto shall be included in the order of the day of the following session, and all other propositions shall be suspended until its final voting.

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.
Paragraph 1 - There shall be no delegation of acts falling within the exclusive competence of the National Congress, of those within the exclusive competence of the Chamber of Deputies or the Federal Senate, of matters reserved for supplementary laws and of legislation on:
I - the organization of the Judicial Power and of the Public Prosecution, the career and guarantees of their members; II - nationality, citizenship, individual, political and electoral rights, III - pluriannual plans, budgetary directives and budgets.
Paragraph 2 - The delegation to the President of the Republic shall take the form of a resolution of the National Congress, which shall specify its contents and the terms of its exercise.
Paragraph 3 - If the resolution calls for consideration of the bill by the National Congress, the latter shall do so in a single voting, any amendment being forbidden.





Последнее изменение этой страницы: 2016-08-12; Нарушение авторского права страницы

infopedia.su Все материалы представленные на сайте исключительно с целью ознакомления читателями и не преследуют коммерческих целей или нарушение авторских прав. Обратная связь - 3.239.236.140 (0.06 с.)