The Unconstitutionality of Mandatory Parliamentary Amendments

Abstract

This article examines the constitutional compatibility of Brazil’s parliamentary amendment regime, with particular attention to individual and state delegation amendments subject to mandatory execution, as well as special transfers. It argues that legislative participation in the formulation of the budget is legitimate, but that the mandatory nature of parliamentary amendments violates the separation of powers by removing from the Executive Branch the administrative authority to decide on the opportunity and feasibility of their implementation. The budget does not constitute, in all of its appropriations, an automatic order to spend. A parliamentary amendment may impose upon the Executive a heightened duty to provide reasons, while non-execution may be justified on technical, fiscal, or planning grounds, provided that such reasons are made public and remain subject to oversight. In addition to the absence of mandatory execution, the constitutionality of parliamentary amendments depends on compliance with the following requirements, along the lines established by the Constitutional Court of Colombia in Judgment C-1168 of 2001: the absence of personal quotas or funds subject to discretionary allocation; integration with the goals of the multi-year plan and other public policies established through governmental planning; specificity of appropriations; equitable territorial distribution; objective selection of projects; and implementation by the responsible administrative authorities. The research combines doctrinal analysis, official data, and comparative law. It concludes that parliamentary amendments may be constitutional when understood as legislative proposals establishing spending priorities, but become unconstitutional when the Constitution or legislation mandates their automatic execution and transforms a political designation into a binding command imposed upon the administrative branch of government.