Constitutional grace and judicial review of acts of the Executive Branch: an analysis of Daniel Silveira’s case in the Brazilian Supreme Court

Abstract:

This article highlights the “constitutional grace” to address the limits of judicial review of acts of the Executive Branch, based on the concrete case starring by deputy Daniel Silveira. In addition to the initial discussions regarding the scope of parliamentary immunity and freedom of expression, the characteristics of the constitutional pardon as a private and discretionary act of the President are presented. Subsequently, in view of the filing of ADPFs before the Supreme Court, the study presents the possibility and eventual limits of the STF's action in the judicial review of acts of the Executive Branch by concentrated control of constitutionality. Through a bibliographic analysis, some of the classic debates of political constitutionalism are projected onto this specific case, from the limits of judicial review to the conflict over the holder of the final say in guarding the Constitution. Finally, despite the Court's decision on the unconstitutionality of clemency in this case, it is concluded that the grant of pardon decree only materialized a constitutionally conferred prerogative to the President, in a discretionary manner and under criteria of convenience and opportunity, which is why it is not up to the Judiciary to review the merits of this political judgment.

Keywords:
constitutional grace; individual pardon; judicial review; Brazilian Federal Supreme Court; Federal Deputy Daniel Silveira