Recent Constitutional Amendments

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Below, comments about the most recent Constitutional Amendments, starting from Amendment 45, of December 8th 2004.
All the amendments were already included in the proper paragraphs of the text of the Constitution.

Constitutional Amendment 45, December 8th 2004.
This CA became known as the Reform of Judiciary Power; several articles about the Public Prosecution were also changed/added.
The CA changed articles 5, clause LXXVIII, 36, 52, 92, 93, 95, 98, 99, 102, 103, 104, 105, 107, 109, 111, 112, 114, 115, 125, 126, 127, 128, 129, 134 and 168; also, this CA created articles 103-A, 103-B, 111-A and 130-A.
Some comments on the amendments:

  • The Brazilian Justice is one of the slowest in the world; there are anedoctal stories of cases lasting more than 50 years. For example, the aiport Tom Jobim, most important in Rio de Janeiro, was inaugurated in 1952, but until today the ex-owners are disputing the expropriation in Justice (read other cases in Portuguese here). Now, by force of the clause LXXVIII of article 5, celerity of Justice, with a reasonable duration of proceedings, is an individual right. However, as with many other Constitutional individual rights (e.g., free legal assistance, decent minimum salary), there is no indication of when/how/by whom the right will be in fact exercized.

  • The CA created the National Council of Justice; because the NCoJ was assigned with responsibilites which rested formerly with the other Brazilian Courts, several articles were amended to adapt to the new situation. Also, new rules apply to admission, promotion and training of judges, as well as the administrative, budgetary and financial management of Courts.

  • Article 103-A created the binding summary (in Portuguese, súmula vinculante). In Brazil, in the name of the independence of the Judiciary, any judge could, in most cases, ignore decisions by the Superior Courts (the only exception was in the cases of Declaratory Acts of Constitucionality, which could not be contradicted); this meant that a significative number of cases would go all the way up to the Superior Courts, only to have the individual decisions by judges revoked. Now, in special circumstances, at discretion of the Justices of the Supreme Federal Court, a binding summary may be issued; once the binding summary is issued, all Judges and the Public Administration must abide to it.

  • Article 103-B instituted the external control of the Judiciary Power (much criticized by Judges), by creating the National Council of Justice. In the composition of the NCoJ, there are Justices, Judges, Prosecutors, lawyers and citizens; many Judges protested against this, claiming this was "undue interference in the autonomy of the Judiciary". The NCoJ can not dispute the merit of the decisions, but must hear complaints about conduct of Judges. The NCoJ has powers to evaluate the legality of administrative acts of the Justice; in 2005, the NCoJ determined that employment of relatives is prohibited (read here).

  • Article 111-A changed the composition of the Superior Labour Court; the Labour Justice in Brazil is the one which has been gone through more changes in recent times; one of the reasons for this is that the Labour Justice was created by a Labour Law which is more than 60 years old.

  • Article 130-A created the National Council of Public Prosecution, to exercize the external control of the Public Prosecution.

    Constitutional Amendment 47, May 5th 2005.
    Changes article 20, clause IV.
    The article lists the properties of the Union. Before this CA, all maritime islands belonged to the Union, including, e.g., the islands where the cities of Florianópolis and São Luís were constructed. The amendment excluded islands which are seats of municipalities from the list of properties of the Union, unless such islands are of public or environmental interest.

    Constitutional Amendment 47, July 5th 2005.
    The most important amendments were:

  • Changed article 37 (Public Administration).
    The clause 11 of this article imposed limits to the salaries which can be paid to civil servants. The amendment 47 added paragraph 12 to the article, which establishes another limit (inferior to the limit defined by clause 11) which may be applied to the States; this sub-limit is equal to 90.25% of the Federal limit.

  • Changed article 195, paragraph 9, to allow small sized companies to pay lower social security taxes.

  • Amended article 201, to include housekeepers into the social security system. Before the amendment, housekeepers who spent the life working at home reached elderly without any social security assistance; the amendment determines the payment of one minimum wage to housekeepers of low income.
    A law must be passed before this amendment is enforced; such law is not in Congress yet.

    Constitutional Amendment 48, August 10th 2005.
    Added paragraph 3 to article 215, creating the National Plan of Culture and listing their functions.

    Constitutional Amendment 49, February 8th 2006.
    Changed article 21, clause XXIII.
    Brazil is definitely competing (and winning) for the title of most detailed Constitution in the world.
    Before the amendment, the handling of radioisotopes could be authorized by concession or permission of the Union; after the amendment, only by permission. The difference is that the concession is materialized by a contract, with rights and duties of both parties; in the permission, the authorization is given and may be revoked by the Union at any time (the permissionary has very few rights).
    This amendment also included specific normatizatin regarding isotopes with half-life equal or shorter than two hours.

    Constitutional Amendment 50, February 14th 2006.
    In 2005, the images of the Government and of the Congress were stained by a huge corruption scandal.
    This CA 50 was discussed and passed very quickly, in an attempt to improve the image of Congress.
    The CA changed article 57.

  • The vacation of members of Congress was shortened. Former text obliged Congress to meet from February 15th to June 30th and from August 1st to December 15th; now, Congress must meet from February 2nd to July 17th and from August 1st to December 2nd.
    Still, they have official 75 vacation days. On top of that, they may only suffer some kind of punishment if they don't attend the sessions in which there is voting, and these happen only from Tuesday to Thursday. That means that most Congressmen and Congresswomen fly away from Brasília every Thursday and only return next Tuesday.

  • In special circumstances, the Congress may be called to meet during the vacations. In some recent occasions, there were disagreements between Senate and Chamber about the convenience of such callings; to circumvent this problem, an amendment established that only with the agreement of both Houses will the Congress be called during vacations.
    During such special calls, the members of the Houses received extra payments; until CA 32, of 2001, they were paid two monthly salaries (on top of normal salary) for each call (this is one of the reasons to explain why there were so many calls from 1996 to 2000). CA 32 determined that the extra payment could be no more than one monthly salary. Now, CA 50 abolished the extra salary altogether (only normal salary is paid).
    This CA didn't change the fact, though, that every member of Parliament (in the Union and most of the States) is paid fifteen salaries: twelve montly salaries, the 13th salary paid to every worker, and two extra salaries, one in the beginning and one in the end of the year.

    Constitutional Amendment 51, February 14th 2006.
    Amended article 198.
    This CA is all about the communitary health agents and endemy combat agents. These agents have a peculiarity with distinguish them from other health servants: they are much needed for some time, and then become unnecessary (for example, after an endemy is controlled).
    Right before the last elections, in 2002, candidate José Serra, who was then Minister of Health, dismissed several agents who had combated dengue in Rio de Janeiro. This fact gained the hedlines first because dengue would return a few months later, and second because President Lula used the images of several ex-agents suffering unemployment in his campaign.
    The CA determined that a special labor regime must be created, regarding specifically the above agents.

    Constitutional Amendment 52, March 8th 2006.
    This CA amended article 17.
    Before this CA, a controversial interpretation of the electoral law by the Superior Electoral Court determined that if Parties A and B adjusted a coalition for the Presidential elections, Parties A and C could not adjust a coalition for State elections (Parties A and B could repeat the coalition in the States, but were not obliged to).
    Some Parties were affected by this. For example, PMDB, the largest Brazilian Party, has affiliates of several ideologies; at federal level, PMDB may want to support leftist PT, but in some States it may be more convenient to joint forces with PFL. This was forbidden, not it is permitted.
    However, the Superior Electoral Court determined that this amendment (like any other regarding the elections) can be enforced only one year after its enactment; so, in the 2006 elections, coalitions are still vinculated.

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