A GJ Topics article.

Abstract

The recent judiciary reform in Brazil (Constitutional Amendment 45) added Paragraph (3) to Article 5 of the Brazilian Constitution. The new clause establishes that international human rights treaties if approved by three fifths of the members of the Parliament, in two readings in both Houses (Chamber of Deputies and Federal Senate), are to be incorporated into the Brazilian legal order as constitutional amendments. Contrary to what a significant number of Brazilian legal circles have asserted, the author argues that the judiciary reform, at least in regard to the matter of the status of human rights treaties in Brazilian domestic law, represents a backslide from the normative point of view when compared to what was originally established by the authors of the 1988 Constitution. This is so, because, from now on, rights established in treaties cannot be considered as equal in rank to rights originally established in the 1988 Brazilian Constitution, by the Constituent Power, but as rights originated from the Amending Power – a difference with substantial consequences from the Brazilian constitutional law point of view. Some controversial topics originated from the new Article 5 (3) are analyzed in order to stress the problems Brazilian legal profession will have to face to provide a stronger sense of openness of Brazilian law to the International Law of Human Rights.

Originally published in Global Jurist Topics.

Recommended Citation

Galindo, George R. B. (2006) "``That Is a Step on Which I Must Fall Down..." Brazilian Judiciary Reform As a Backslide in Terms of International Protection of Human Rights in Brazil," Global Jurist Topics: Vol. 6 : Iss. 3, Article 2.
Available at: http://www.bepress.com/gj/topics/vol6/iss3/art2