Constitutional Separation of Powers: Brazil's 1988 Framework

Separation of Powers in the Brazilian Constitution (CF/88)

The Brazilian Constitution of 1988 (CF/88) consolidates the model of separation of powers established by philosophers like Montesquieu and John Locke in the seventeenth and eighteenth centuries. Consequently, the 1988 Charter sets out specific characteristics regarding the division of powers in the country, structured as follows:

Legislative Power

The Legislative Power, at the Federal level (Union/Brazil), is bicameral (two chambers) and exercised by the National Congress, which is composed of the Chamber of Deputies and the Federal Senate. This bicameral federal legislature is closely linked to the choice of the legislature and constitutes the federative form of the state.

The Legislative Power is responsible for:

• Drafting national laws (e.g., complementary law, statutory law, legislative decrees).
• Oversight of the Executive Branch.

As derived functions (atypical), the legislature also acts with:

• Powers of investigation through Parliamentary Committees of Inquiry (CPIs).
• The role to prosecute the Chief Executive for crimes of responsibility.
• The function to manage its own internal structure (administrative function).

Executive Power

The Executive Branch is the body whose typical function is to act as the Head of State, Head of Government, and manage the state administration.

Among its atypical functions, the Executive has the power to legislate (through provisional measures or delegated laws) and to judge its own administrative litigation.

Like members of Congress, the Chief Executive is elected by the people and possesses various privileges and immunities, which serve as guarantees for the independent and impartial exercise of their functions.

Judiciary

The Judiciary completes the classical tripartite division of powers. Its presence in a truly democratic State of Law constitutes a fundamental guarantee of democracy itself.

Precisely for this reason, the Constitution justifies the application of certain guarantees to its members, such as:

• Life Tenure (after a probationary period).
• Irremovability (or tenure).
• Irreducibility of earnings (salary).

Thus, citizens can count on an independent and robust system capable of upholding the law and ensuring order.

An atypical function of the Judiciary is the power to issue administrative rules and manage its own structure.