Democracia e diálogo institucional: a relação entre os poderes no controle das omissões legislativas

Abstract

This study intends to identify the methodological diversity in the jurisprudence adopted by the Brazilian Supreme Court related to the effectiveness of the decisions in the area of controlling unconstitutional legislative omission. It is possible to see in the study of these cases that there is a standard in decision-making when addressing these issues: either the Court adopts multilateral dialogical approach with other powers, enabling emanation of the missing norms by the responsible agency, or it adopts a unilateral approach, justified by the guarantee of fundamental rights. It will be argued that the multilateral dialogical method is presented as an effective and legitimate technique, since it allows the political determination required for the emanation of an abstract normative act and the proper legislative process, strengthening the political and popular representation bodies. The case studies of the State Participation Fund (FPE) and the creation, merger and dismemberment of municipalities judged by the Brazilian Supreme Court reinforce the research hypothesis, for its complexity in the composition of the interests involved. In the case of legislative omission unconstitutional, the Brazilian Court action reinforces the maintenance of dialogue between the judiciary and other branches in search of effective, fair and legitimate solutions to all of society. Therefore, stands as imperative need for better discipline cases of legislative omission unconstitutional the legislative regulation of its main instruments, the direct action of unconstitutionality by omission and Writ of Injunction ("Mandado de Injunção"), for greater clarity and transparency as to the limits of the Court Brazilian and Parliament on these issues. In addition to supporting the activities of the Supreme Court, the rules in the validity of decisions by default judicial review allows predictability and control of these pronouncements.

A efetividade do Mandado de Injunção: investigação empírica sobre as decisões do Supremo Tribunal Federal e seus impactos na legislação

“…É esse o caso, dentre tantos outros, de estudos realizados acerca do MI porBONAVIDES, 2012;GALLO;FACHIN, 2012; MACEDO;MARTINS, 2011;PASCHOAL;BARBOZA, 2011;LIMA, 2011. 14 RAMOS, 2010MATTOS, 2015;PEREIRA, 2013;SABRA, 2008; ALVES et al, 2012; BARBOZA, 2014. 15 FALCÃO;CERDEIRA;ARGUELHES, 2011;FALCÃO et al, 2014; CHAVES, 2014.…”