The current Brazilian constitutional jurisdiction is characterized by the originality and diversity of the available legal actions, either to dispute the constitutional character of an act of the public power, or to protect the fundamental rights. Among these actions are “mandado de segurança” – a Brazilian innovation on the constitutional field -,“mandado de injunção”, “habeas corpus”, “ação civil pública” and “ação popular”. In addition to these forms of diffuse constitutional control, there are other constitutional actions related to the abstract constitutional control by the Supreme Court, such as direct action of unconstitutionality, direct action of unconstitutionality by omission, declaratory action of constitutionality and allegation of disobedience of fundamental precept.
In the Brazilian system, the abstract constitutional control is concentrated in the Supreme Federal Court, which is responsible for the process and ruling of the autonomous actions involving constitutional controversies (direct action of unconstitutionality, declaratory action of constitutionality, direct action of unconstitutionality by omission and allegation of disobedience of fundamental precept, which are typical of the abstract constitutional control, as defined in article 103 of 1988`s Federal Constitution).
According to the Constitution, the following authors are legitimate to file the cited actions: the President of the Republic, the Executive Committee of the Federal Senate, the Executive Committee of the Chamber of Deputies, the Executive Committee of the Legislative Assemblies of the States or of the Legislative Chamber of the Federal District, the Governors of the States and of the Federal District, the Advocate-General of the Union, the Federal Council of the Brazilian Bar Association, political parties with representation in the National Congress and trade union confederations or national class entities.
The direct action of unconstitutionality is an instrument to declare the unconstitutionality of law or federal norms, with respect to the current Constitution.
The legislation that regulates the institute of the direct action of unconstitutionality (Law 9.868/99) gives the reporter of a case the power to admit “amicus curiae” in the process, as well as to hold public hearings to listen to members of the society, mainly those with expertise on the subject under discussion.
The decisions in the direct action of unconstitutionality have “ex tunc”, “erga omnes” and binding effects on the whole Judiciary Power and on the direct and the indirect public administration. It is important to highlight that these binding effects do not reach the Legislative Power.
The legislation that regulates the direct action of unconstitutionality (Law 9.868/99) also gives the Plenary of the Court the power to module the effects of the decisions regarding the abstract control of norms.
The usage of this technique of effects modulation allows the Supreme Federal Court to declare the unconstitutionality of a norm: a) once the decision has passed into “res judicata” (declaration of unconstitutionality “ex nunc”); b) from a given moment after the decision has passed into “res judicata”, to be assigned by the Court (declaration of unconstitutionality with “pro futuro” effects); c) without the norm being pronounced null and void; and d) with retroactive effects, except for specific situations.
The declaratory action of constitutionality is an instrument destined to the declaration of constitutionality of law or federal norms. It has been considered a kind of direct action of unconstitutionality in reverse. It is an action designed to solve relevant doubts and controversies on the interpretation of the Constitution.
As in the case of the direct action of unconstitutionality, in the declaratory action of constitutionality, the Justice that reports such a case can admit “amicus curiae” in the process and hold public hearings. Moreover, the decisions pronounced in a declaratory action of constitutionality also have “ex tunc”, “erga omnes” and binding effects for the whole Judiciary Power and for the direct and the indirect public administration. It is also possible to modulate the effects of a decision reached in a declaratory action of constitutionality.
Law 9.868/99 enables the Supreme Federal Court, through temporary injunction, to order Judges and Courts to suspend the judgement of the cause involving the application of the law or the norm object of the declaratory action of constitutionality, until its definite decision.
The Constitution of 1988 granted particular significance to the constitutional control over what is called omission of the legislator, introducing in article 103, § 2, the direct action of unconstitutionality by omission. This instrument is destined to assess whether a federal or a state – administrative or legislative – entity responsible for regulating a constitutional precept is jeopardizing the effectiveness of the Constitution by not actively using its power.
The same rules of Law 9.868/1999, regarding direct action of unconstitutionality, are valid for the direct action of unconstitutionality by omission, which has no specific regulation. The participation of “amici curiae” and the holding of public hearings are also admitted in this case.
The Plenary of the Court has adopted the understanding that, in a prolonged period of omission, it is possible that the decision pronounced by the Supreme Federal Court is capable of regulating the subject, in a case of omission, during a given period or until the regulation is edited to fill the gap. In these cases, the Court, without assuming an exercise typical of the Legislative, has accepted the possibility that the Judiciary can temporarily regulate the matter.
Changes occurred in the Brazilian system of control of constitutionality after 1988 radically altered the relation between the concentrated and the diffuse systems. The amplification of the right to institute a direct action and the creation of the declaratory action of constitutionality strengthened the concentrated control. However there was still an expressive residual space for the diffuse control regarding subjects not susceptible to concentrated control examination, such as direct interpretation of constitutional clauses by judges and courts, pre constitutional law, constitutional controversy on revoked norms and control of constitutionality of municipal law before the Constitution. In terms of the Law 9.882/99, the allegation of disobedience of fundamental precept is suited to avoid or repair grievance to a fundamental precept, as a result of an act of the public power.
As a typical instrument of concentrated constitutional control, the allegation of disobedience of fundamental precept can be used, either directly or indirectly, to impugn or challenge a law or a regulation issued by a municipality, a state or the Federation. In the first but not in the second case, the action is original. That means that in the second case the action is given rise by a previous legal dispute or a concrete situation (it has an incidental character).
Law 9.882/99 imposes that the allegation of disobedience of fundamental precept can only be admitted if there is no other efficient way to sane the grievance (article 4, § 1). The decision of a case of allegation of disobedience of fundamental precept can also show modulation of effects.
The sole paragraph of article 1 makes explicit that the allegation of disobedience of fundamental precept is also suited to cases of relevant constitutional controversy in federal, state or municipal law, including the ones prior to the Constitution (pre constitutional laws).
Similarly to the other instruments of abstract control, the reporter of an allegation of disobedience of fundamental precept can admit “amici curiae” and is able to hold public hearings. In fact, one of the most important public hearings held in the Court occurred in the case of the Allegation of Disobedience of Fundamental Precept 54, in which the subject was the abortion of anencephalic fetus.
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