The Rule of the Courts

Adriana Ancona de Faria

T HE R OLE OF C OURTS IN G UARANTEEING F UNDAMENTAL R IGHTS – C ONTEMPORARY I SSUES / T HE B RAZILIAN C ASE

Adriana Ancona de Faria 1

The Brazilian constitutional order clearly positions itself in favor of judicial review as a mechanism for the protection of fundamental rights, whether in relation to laws or normative acts, as well as actions or omissions by public authorities. With respect to fundamental rights, there is an explicit understanding that the Judiciary may exercise constitutional control over their observance, including within the sphere of private relations. It should also be emphasized that, under the Brazilian Constitution, fundamental rights are understood as entrenched clauses ( cláusulas pétreas ), meaning that they cannot be reduced or abolished – even by parliamentary majority or popular will – so long as the constitutional order established in 1988 remains in force. This implies that the final word on fundamental rights lies with the Brazilian Judiciary, which is expected to act in a counterma joritarian manner in their protection and may even review constitutional amendments that seek to undermine entrenched provisions. Another important aspect is that, in Brazil, constitutional review is not restricted to the centralized model exercised by the Federal Supreme Court ( Supremo Tribunal Federal – STF ). It may also be conducted by all judicial instances through diffuse constitutional review, whereby a court may recognize an individual right based on the unconstitutionality of norms, conduct, or omissions. While erga omnes effects are limited to centralized

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1 Ph.D. in Constitutional Law from the Pontifical Catholic University of São Paulo, Brazil.