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Constitutionality Control in Brazil: Mechanisms and Impact on the Legal Order



This article addresses the form of constitutionality control in Brazil, investigating its mechanisms, legal basis and the impact that its decisions generate on the country's legal order. With both the Federal Constitution and jurisprudence as a backdrop, this study explores how constitutionality control acts as an essential pillar in guaranteeing constitutional supremacy and protecting fundamental rights, while maintaining the cohesion and concatenation of the analyzes carried out.

 

Constitutionality control, as a cornerstone of the Rule of Law, presents itself as a vital instrument to maintain the integrity of the Brazilian legal system. This article aims to dissect the different mechanisms through which constitutionality control occurs, evaluating the underlying legal support and exploring the repercussions that such decisions have on the country's legal order.

 

1. Constitutionality Control Mechanisms:

Brazil adopts a hybrid system of constitutionality control, encompassing diffuse and concentrated systems. In the diffuse system, any magistrate or court, upon finding the possible incompatibility of a law with the Constitution, can apply the principle of non-reception, ensuring that the unconstitutional rule is not applied in the specific case. In the concentrated system, through Direct Actions of Unconstitutionality (ADIs) and Declaratory Actions of Constitutionality (ADCs), the Federal Supreme Court (STF) assumes the prerogative of being the last instance to resolve issues of unconstitutionality, providing uniformity to decisions and avoiding jurisprudential heterogeneity.

 

2. Supremacy of the Constitution and Protection of Fundamental Rights:

The legal basis of constitutionality control rests on the premise of the supremacy of the Constitution, established in article 102 of the Federal Constitution of 1988. This principle, combined with article 5, which enshrines the rights and fundamental guarantees, gives rise to the declaration of unconstitutionality of rules that contradict these provisions. In this sense, constitutionality control plays a crucial role in the protection of fundamental rights, ensuring harmonization between normative acts and constitutional precepts.

 

3. Impact on Legal Relations:

Decisions made in constitutionality control processes have effects that transcend the parties involved in the litigation. The binding force of these decisions, as provided for in article 102, § 2, of the Constitution, extends to all bodies of the Judiciary and public administration, impacting the validity and effectiveness of the rules declared unconstitutional.

 

4. Constitution and Jurisprudence as Sources of Constitutionality Control:

The control of constitutionality, intrinsically linked to the Federal Constitution, finds a normative basis in article 102, section III, which gives the STF the competence to judge ADIs and ADCs. Furthermore, the STF's consolidated jurisprudence plays a fundamental role in establishing interpretative parameters, supporting the coherence and predictability of decisions.

 

5. Limits and Challenges of Constitutionality Control:

Despite its importance, constitutionality control also faces challenges, such as excessive judicialization and an overload of demands at the STF. The complexity of some cases can generate heated debates and interpretative disputes, demonstrating the need for a balance between legal stability and flexibility in adapting to social changes.

 

Conclusion:

 

The constitutionality control system in Brazil, anchored in the Constitution and supported by jurisprudence, plays a fundamental role in maintaining the legal order, safeguarding fundamental rights and preserving supremacy constitutional. Its mechanisms and decisions shape legal relations in the country, while contributing to the evolution of the Brazilian legal framework.

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