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Brazil: Provisional Measures Must Follow Procedure Established in the Constitution

(Mar. 14, 2012) On March 8, 2012, the Brazilian Federal Supreme Court ruled that from now on, analysis and approval of provisional measures by the National Congress must follow the procedures provided in article 62, section 9, of the Constitution (Constituição da República Federativa do Brasil [C.F.], art. 62 § 9, PLANALTO.GOV.BR (last visited Mar. 13, 2012)). This article determines that a joint committee of Deputies and Senators has the duty to examine provisional measures and to issue an opinion about them prior to their consideration in separate sessions by the full membership of each House of the National Congress. According to the ruling, provisional measures can no longer be examined by the Parliament based on the reporting Member's opinion (parecer do relator) only, after the period for assessment by the joint committee has been exhausted.

To avoid problems with the provisional measures that were approved without adherence to the constitutional procedures, the Supreme Court decided that its ruling does not affect the provisional measures that have already been converted into law or that are pending in the legislature. (Tramitação de novas MPs no Congresso terá de obedecer rito previsto na Constituição, Supremo Tribunal Federal (Mar. 8, 2012).)

Background Information on Provisional Measures Under Article 62 of the Constitution

According to the Constitution, in “relevant and urgent cases” the President of the Republic may adopt provisional measures that have the force of law. Such measures must be submitted immediately to the National Congress for deliberation (C.F. art. 62). Provisional measures may not be enacted for certain matters that are listed in article 62, section 1.

Time Constraints on Conversion of Provisional Measures into Law

Except as provided for in sections 11 and 12 of article 62, provisional measures lose their effectiveness as of the day of their issuance if they are not converted into law within a period of 60 days, which may be extended once for an equal period of time (C.F. art. 62 §§ 3 & 7). It is the responsibility of the National Congress to regulate, by legislative decree, the legal relations stemming from such measures (C.F. art. 62 § 3). The 60-day period referred to in section 3 of article 62 runs from the date of publication of the provisional measure, not counting periods in which the National Congress is in recess (C.F. art. 62 § 4).

In addition, a provisional measure that involves the institution of a tax or an increase in existing taxes, except as provided for in articles 153(I), (II), (IV), (V), and 154(II) of the Constitution, may only have effect in the following fiscal year if it has been converted into law by the last day of the fiscal year in which it was issued (C.F. art. 62 § 2).

Deliberation and Voting on Provisional Measures

The deliberation of each of the Houses of the National Congress on the merits of a provisional measure is contingent upon the prior judgment of a mixed commission of Deputies and Senators as to the measure's compliance with constitutional requirements (C.F. art. 62 §§ 5 & 9). The commission has the duty to examine provisional measures and to issue an opinion about them prior to their consideration in separate sessions by the full membership of each House (C.F. art. 62 § 9).

If a provisional measure has not been considered within 45 days, counting from its publication date, the provisional measure enters into a “regime of urgency.” Subsequently, in each of the Houses of the National Congress, all other legislative deliberations of the House to which the measure was presented must be suspended until it is finally put to a vote (C.F. art. 62 § 6).

The effectiveness of a provisional measure may be extended once for 60 days, if during the 60-day period following its publication date it has not been submitted to a final vote in the two Houses of the National Congress (C.F. art. 62 § 7). Provisional measures must be voted on in the Chamber of Deputies before being considered by the Senate (C.F. art. 62 § 8).

Reenactment in the same legislative session of a provisional measure that has been rejected or that has lost its efficacy is forbidden (C.F. art. 62 § 10). If the legislative decree referred to in section 3 of article 62 on the legal relations stemming from provisional measures that have lost their efficacy is not issued within 60 days after the rejection or loss of efficacy of a provisional measure, the legal relations constituted under the provisional measure or stemming from acts practiced during the time it was in effect must remain in effect and must be governed by the provisional measure (C.F. art. 62 § 11).

If a bill to convert or modify the original text of a provisional measure has been approved, the provisional measure must be maintained in force in its entirety until the bill is signed or vetoed (C.F. art. 62 § 12).