The Influences Models of Constitutionality Control in Brazil.

Today I will make a brief explanation about the influence models of constitutionality control in Brazil. I do not want to get into the subject, but I will show you how the control models in Brazil have been influenced.

The form of government and state will determine the importance of the Constitution for its internal ordering system. Brazil, since the 1988 Constitution, has adopted the Democratic State of Law with a Presidencialism government, which means that the State is made by the people and for the people, subjecting everyone, including the State to the Law. In Brazil, the Federal Constitution has supremacy on all other laws, they must be subordinated to the Constitution that can not be confronted.

The U.S. Federal Constitution of 1787 had an important influence when it consecrated the creation of the supremacy of the Constitution. From that moment, it was established that the judges of all the United States obey the Federal Constitution. Thus, the judiciary is the only one that can carry out such control.

The US system has incidental or indirect control characteristics applicable to the specific case. Thus, it must be proposed by the party to the Judiciary Branch that will decide on that procedural incident and will determine to the parties on the Constitutionality of the laws and the acts of the public power. For this reason, it is said that it is a diffuse control (diffuse to the other judges to appreciate the constitutionality), that is, the judge does not annul, only declares an unconstitutional nullity that concrete case. It is up to the Supreme Court to annul erga omnes.

Already in Austria, through the contribution of the thinker Hans Kelsen, there was the emergence of a new system. Unlike the American system, Kelsen devised a special court, known as the Constitutional Court. This organ is responsible for attracting all the competence of the Constitutional Judgment.

For the intellectual Kelsen, there is a need for concentrated constitutional jurisdiction. Unlike the US system, the constitutionality control can not be exercised by any judge or judge, but only by the Constitutional Court. So here, the exercise of this control will be made by principal, direct route, or will be offered a special action that will have overall effectiveness against all.

Brazil adopted the combination of the two models, it is possible the application of the Austrian-Kelsenian system and the American model as well, as it attributed to the other Branches of the Federal Republic (Legislative and Executive) of Brazil. So, it is legitimate to exercise judicial review: the Supreme Court, the guardian of the Constitution (concentrated control); judges and justices (abstract control); and the other branches of government.

By: Rodrigo Lessa Tarouco - OAB/PE n. 43.931