Barroso da Graca, Luis Otavio;
(2018)
Judicial Review of the Legislative Process in Brazil.
UCL Journal of Law and Jurisprudence
, 7
(1)
pp. 55-81.
10.14324/111.2052-1871.096.
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Abstract
Judicial review of the legislative process has been a controversial topic in the case law of the Federal Supreme Court in Brazil. Issues regarding enacted statutes are not as controversial as those involving pending processes. On one hand, the Court has been scrutinising cases based on procedural legislative rules that are enshrined in the Constitution. On the other, the Court has been refusing to examine procedures based on provisions not enshrined in the Constitution, such as the internal ordinances of the parliament. In the former situation, the Court sees itself compelled to perform a kind of prior control of constitutionality. In the latter, it states that evaluating whether the process abides by the parliament’s own rules is an internal political (interna corporis) task, not a legal one. In this article, I argue that adherence to rules that govern the legislative process, regardless of their status, is not a matter of political discretionary choices, but a matter of compliance with the rule of law. Therefore, the Brazilian Federal Supreme Court should abandon the prior control of constitutionality rationale, and it should review pending legislative processes including those based on the internal ordinances of the parliament.
| Type: | Article |
|---|---|
| Title: | Judicial Review of the Legislative Process in Brazil |
| Open access status: | An open access version is available from UCL Discovery |
| DOI: | 10.14324/111.2052-1871.096 |
| Publisher version: | https://doi.org/10.14324/111.2052-1871.096 |
| Language: | English |
| Additional information: | © 2018, The Author(s). This is an Open Access article distributed under the terms of the Creative Commons Attribution License (CC-BY) 4.0 https://creativecommons.org/licenses/by/4.0/ which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10049899 |
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