## Facts

- Article 62 of Brazil’s 1988 Constitution allowed the President to issue **provisional measures** in cases of **relevance and urgency**, subject to immediate submission to the National Congress and limited-duration renewal under the constitutional framework then in force.
- Following a national scandal involving **illicit transfers of money abroad**, the President issued **Provisional Measure No. 111/1989**.
- The provisional measure created a new regime of **temporary detention (prisão temporária)**, including for certain **financial crimes** and **heinous crimes**, and included related procedural and criminal-law provisions.
- The **Federal Council of the Brazilian Bar Association (OAB)** filed a **Direct Action of Unconstitutionality (ADI)** against the President, arguing that a detention regime of this kind should be established by **ordinary federal legislation** enacted by Congress, not by presidential provisional measure.
- In the interlocutory phase, the OAB sought a **precautionary measure (medida cautelar)** to suspend the effectiveness of the provisional measure pending final judgment in the ADI.
- The Supreme Federal Court’s ruling addressed only whether to grant interim suspension, not the final constitutionality of the challenged provisions.

## Issues

1. Whether the Constitution’s “relevance and urgency” prerequisites for issuing a provisional measure are subject to judicial review, and whether there was a clear excess of presidential lawmaking power justifying interim suspension of Provisional Measure No. 111/1989.
2. Whether the temporary detention regime created by the provisional measure was plainly inconsistent, on its face, with constitutional guarantees of liberty such that an injunction was warranted.
3. Whether provisions affecting a detainee’s communication with counsel were plainly incompatible with the Constitution, justifying immediate suspension.
4. Whether the creation of a criminal offense by provisional measure presented a sufficiently clear constitutional defect and risk of harm to justify interim relief.
5. Whether a procedural requirement for **24-hour judicial duty** presented a sufficiently serious constitutional problem to warrant injunction in abstract review.

## Decision

- The Supreme Federal Court, sitting en banc, **denied** the requested precautionary measure and **did not suspend** Provisional Measure No. 111/1989.
- The Court held that the President’s assessment of **relevance and urgency** is, as a rule, a matter of executive judgment, though **judicial control is possible** where there is an **excess of the power to legislate**; the Court found no such excess clearly shown at the interim stage.
- The Court reasoned that the provisional measure’s temporary detention was **not mandatory or automatic** because it required a **judicial order with reasons**, reducing the case for emergency suspension.
- At this procedural moment, the Court found no **manifest incompatibility** between the challenged communication restrictions and the constitutional guarantee of communication with counsel, considering the measure’s provisions allowing **access to the detainee’s lawyer**.
- The Court recognized that the argument against **creating a criminal offense by provisional measure** raised a serious constitutional question, but still denied interim relief because the challenged provision was aimed at restraining **abuses of authority** against individual liberty and did not show the required urgency for suspension.
- The Court also refused to suspend the 24-hour judicial duty provision, viewing it as lacking the legal weight required for an exceptional interim remedy in an ADI.
- **Justices Celso de Mello and Sepúlveda Pertence dissented**.

## Legal Principles

- The constitutional conditions for issuing provisional measures (relevance and urgency) are primarily assessed by the President, but courts may intervene when there is a clear, demonstrable excess of the executive’s lawmaking authority.
- Interim relief in abstract constitutional review is exceptional and generally requires a showing of **clear constitutional invalidity** together with a risk of **serious and immediate harm** from continued enforcement.
- A temporary detention scheme is less likely to justify emergency suspension when it depends on a **reasoned judicial decision** rather than operating as an automatic deprivation of liberty.
- When assessing an alleged conflict with the right to counsel at the injunction stage, the Court may consider the challenged provisions in context, including text that preserves **lawyer access**, before finding a clear constitutional clash.
- Even where a constitutional challenge is weighty (such as objections to creating crimes by provisional measure), interim suspension may be denied when the provision’s function is narrowly tied to preventing official abuse and the required immediacy of harm is not shown.

## Conclusion

In ADI No. 162-1’s precautionary phase, the Supreme Federal Court declined to suspend Provisional Measure No. 111/1989, holding that the President’s judgment of relevance and urgency is generally discretionary and that no clear excess of lawmaking power or immediate, facial constitutional violation was established to justify an injunction against the temporary detention regime and related provisions.


Federal Council of the Brazilian Bar Association v. the President of the Republic – Precautionary Measure, Direct Action of Unconstitutionality no. 162-1 (1989)