Understanding Legal and Administrative Norms in Brazil
Provisional Measure (MP)
A provisional measure is a legal rule established by the President of Brazil in cases of urgency and relevance. It has the force of law but is not technically law. Unlike delegated legislation, an MP does not require prior approval from the National Congress. It is published, enters into force immediately, and is then submitted to Congress for analysis.
Congress has 120 days to approve or reject the MP. If analysis doesn’t begin within 45 days, legislative activity is paralyzed. A constitutional amendment is being considered to allow Congress to unlock the agenda and continue its work.
Congress has three options regarding an MP:
- Approve it by a simple majority, transforming it into ordinary law.
- Reject it, rendering it ineffective from the outset.
- Take no action within the 120-day period.
In the last two cases, Congress has 60 days to draft a legislative decree to address issues arising during the MP’s term. If no decree is produced, the MP is considered valid for actions taken during its lifespan.
The Federal Constitution prohibits the use of MPs for certain topics, including:
- Matters requiring supplementary law
- Criminal law
- Procedural law
- Nationality
- Political rights
There is debate about whether state governors and mayors can also issue MPs. The majority view is that they cannot, as the Constitution only mentions the President. The minority view argues that, absent an explicit prohibition, governors and mayors can issue MPs if allowed by their state constitution or municipal organic law, respectively.
Finally, a rejected or unapproved MP cannot be reissued within the same legislative session.
Legislative Decree
A legislative decree is a legal standard established by the National Congress for matters within its exclusive jurisdiction. It is approved by a simple majority and enacted, promulgated, and published by the President of Congress. Common topics include regulating issues arising from rejected or unapproved MPs and ratifying international treaties.
Resolution
A resolution addresses internal disciplinary matters within the National Congress or one of its houses. It is approved by an absolute majority and enacted, promulgated, and published by the President of Congress or the relevant house. Examples include granting leave to a member or filling a vacant position.
Secondary Normative Species
Decree
A decree is the most important secondary normative species, produced by the head of the executive branch at the federal, state, and municipal levels. It details the contents of broad laws, providing practical tools for their application. For example, a law might impose a tax but not specify collection methods or payment dates. A decree would provide these details. Decrees are subordinate to law and cannot alter their essence.
Ministerial Statement
A ministerial statement is a rule established by a federal ministry. It provides detailed instructions for applying a law within the ministry’s purview. It resembles a decree but is issued by a minister instead of the head of the executive branch. For example, the generic drugs law was accompanied by a ministerial statement defining the relationship between these drugs.
Circular
A circular is a rule established by the head of a division to standardize existing procedures. It does not introduce new rules but clarifies and standardizes existing ones. For example, a circular might specify a uniform employee arrival time.
Ordinance
An ordinance has two distinct uses:
- It can be a rule issued by the head of a division to establish a new procedure or task, unlike a circular, which only standardizes existing ones.
- It can be an official document initiating administrative procedures, such as retirement or police investigations.
Order of Service
An order of service is a concrete, executive rule that assigns specific tasks to specific employees. For example, an order of service might be issued for resurfacing a public highway. It is automatically terminated upon completion of the task.