ÁLVARES, André de Carvalho Barbosa, CUNHA, Ricardo Henrique Alvarenga. Constitutional Process code: next step in the evolution of the Brazilian Constitutional Justice. Multidisciplinary Core scientific journal of knowledge. 03 year, Ed. 06, vol. 02, pp. 113-132, June 2018. ISSN:2448-095
On September 23, 2015 was presented to the Federal Council of the Bar Association of Brazil, the preliminary draft of the code of Constitutional Procedure, leading to debates in Brazilian academic world about your actual need. From a study of the creation, expansion and evolution of Constitutional Justice, and consequently the constitutional process itself, analyzed the possible advantages and risks that can bring such encoding. Overcome this step, a brief analysis of the Brazilian constitutional justice system and some relevant points of the draft submitted. Finally, it was mentioned other countries that have already edited your Constitutional Process code.
Keywords: Constitutional Justice, Constitutional Jurisdiction, Constitutional procedural law, Constitutional procedures.
The Brazil already has a draft of Constitutional procedures, proposed by the lawyer Paulo Bonavides and taken over by the Bar Association of Brazil. From the analysis of the evolution of Justice and the constitutional process sought to understand the concepts and aspects of this matter to, from there, to understand the possible advantages of an encoding and also its risks.
Many are the advantages: better systematization of institutes constitutional procedural, greater legal certainty, debugging and updating of standards; possibility of adjusting the jurisdiction of international human rights in the country, in addition to others that may be added by political choice.
The risks are also considered, and boil down into four: malpractice, regression, conflict and esclerotização. But if taken steps can be mitigated. The discussion involving this encoding must take into account the mixed system of constitutional justice, which will soon be analysed before starting to evaluate the draft.
Is it really necessary to a Constitutional Process code in Brazil? From a doctrinal and legislative research aims to answer this question.
1. Constitutional justice and constitutional procedural law
The Constitutional State of law arises from the crisis faced by the Legalistic State that in General, represented the own seizure of the supremacy of the Parliament, which as a result mainly of the abuse at issue exaggerated of laws that were interfering in areas previously protected, in addition to the loss of quality.
Similarly there was a hiperlegalidade, there was also a hipolegalidade, in so far as the legislative process could not keep up with social aspirations.
With the deepening of this crisis, whose symptoms were second, widespread disobedience Hespanha the law; the non-application or selective application of laws by official bodies and the inefficiency of the coercive application of the law to individuals, began to develop the welfare State, with striking features, regulatory intervention in the spheres individual and social life, the limitation of the power of legislators and the pluralism of normative sources.
So, the Constitution to be the fundamental source of law and regulate too much, being responsible as Callejón, the balance arising from the Constitutional Division of powers, which reflect how the socio-political pluralism A moment.
This supremacy of constitutional standard has its origins in American judicial review more clearly, which acknowledged for the first time the supremacy of the Constitution in case Holmes v. Walton, and then in the famous case Marbury vs. Madison, though there are some previous historical precedent. In Europe, this idea has just after the first world war.
This superiority of the Constitution is sometimes expressed, as in standard of Portugal, in your article 3°, 2. In other, emanating from own creation of Constitutional Justice, the process more difficult for the creation or modification of the constitutional requirements, or even the impossibility of removal of some devices, being deducted so implicitly, us the Constitution of 1988, for example, article 60. And in other countries, this superiority held judicial construction, exempli gratia the United States, as already mentioned, this rigidity has been the assumption for the birth of the Constitutional Court.
From this Constitutional State, went on to develop the Constitutional Justice. Fix-Zamudio to designs as a set of procedures of procedural character, by means of which certain organs of State order the forced imposition of the commandments supreme legal, those other bodies of public character which exceeded the limits for your activity on own Fundamental Charter.
Tremps States that the concept of Constitutional Justice must be understood as a material and substantive concept, as the set of techniques designed to ensure and interpret the Constitution by judicial mechanisms.
Other authors prefer to use the term Constitutional Jurisdiction. Baracho understands as "the part of the administration of Justice which has specific legal matters as a particular constitutional State". Tavares adopts a more restrictive concept, explaining that consists in your essence "the defense of the Constitution in all its aspects, since powered by a court (exercise of jurisdiction) as exclusive function[…]".
Although some authors treat the Constitutional Justice and Constitutional Jurisdiction expressions as synonymous, Alcalá (2005, p. 17-21) draws a distinction, emphasizing that the Constitutional Justice involves the activity of any judgment or court with the constitutional competence, which can make a constitucionalidades control standards, protect fundamental rights by means of mechanisms laid down in the Constitution and in legislation. Have the Constitutional Jurisdiction would be constitutional justice played by a specific court, with the purpose of defending the Constitution.
Already the constitutional process, is worthy of vague for Mac-Gregor, as the systematic study of the jurisdiction, organs and constitutional guarantees, and the latter as predominantly procedural instruments for the protection and defense of the values, principles and constitutional standards.
The Portuguese Canotilho defines in broad sense and strict:
"For Constitutional procedural law means the set of rules and principles in the Constitution and positivized other sources of law (laws, treaties) that regulate the procedures legally ordered to the solution of issues of nature constitutional law by the Constitutional Court. " [Sentido amplo] […]
"Have as object the constitutional process. The constitutional process is gradually returning to a complex of acts and formalities for prolacção of a court decision on the compliance or noncompliance of constitutional legislative acts. In this sense, the constitutional process is the process of monitoring the unconstitutionality of legislation. "[Sentido estrito].
Very objective, Singer believes that the constitutional process is the set of principles and standards enshrined in the Constitution and in the law, which regulate the procedures and constitutional processes, whatever the organs in charge of preserving the supremacy of the Constitution and the protection of human rights.
Cannot here confuse constitutional procedural law with constitutional law. This second, has as object the study of the principles and rules of a procedural nature positivized on Constitution. Complies to emphasize that it's recognized the autonomy of the Constitutional procedural law, that has features and principles.
2. Constitutional process code: advantages and risks
The processing of a Bill suffers from interference until you reach your approval or rejection. Will always be subject to possibility of suffering amendments to the point of being severely modified or even distorted. There are many interests involved and every parliamentary bench can interpret the project differently, each suffering pressure from your voter base. But also, if well conducted, with technical discussions, given the legitimate interests, can result in a law which causes a real democratic development. So it can also happen with a code project.
The encoding of the constitutional process in Brazil can bring many advantages to the growth of our democracy. Pandey, in your doctoral thesis before the Pontifical Catholic University of São Paulo, brought a number of them. According to him, the debate on the Constitutional Procedure Act involves necessarily the "interrelation between constitutional law, procedural law and human rights". Only this debate can contribute to the growth of brazilian democracy, insofar as that norms to ensure maximum effectiveness of the fundamental rights and guarantees and human rights may then arise, even if the encoding is not adopted .
With the encoding, Brazil would go on to have a better systematic treatment of the institutes constitutional procedural law, which today are sparse from different sources, different regulatory hierarchies, drawn up in historic moments different, even with previous laws to the Constitution of 1988. This would allow the host to a axiological line that elucubre the fundamental principles of the Constitution as well as international standards of human rights, of which Brazil is a signatory.
Another advantage cited by him with regard to legal certainty. Standards set in a clear and intelligible can bring a predictability to operators of the constitutional process, be they judges, lawyers or courts. With the phenomenon of constitutionalisation of rights, and the adoption by the Constitutional procedure of general clauses, the task to overcome legislative gaps and weighting of principles can be simpler and fairer results.
As MARTINS-COSTA, General Clauses transformed the traditional theory of sources, constituting real "Windows, bridges and avenues of modern codes". For them, can join the normative system encoded value principles haven't set out legislatively but members of "metajuridicos worlds" as those of constitutional principles or precepts of international human rights, allowing a constant transformation and upgrading of the system, without the need for legislative amendment.
This phenomenon occurs in the second phase of the process of encoding, that second Bonavides "in the theoretical sphere proclaimed the superiority of its values and on the normativeness of Supreme realised Praxis principles", so the Exegetical design the first phase of the encodings that implied in code closed. The code of Constitutional Procedure will emerge in this second phase.
Peixoto added that it would take to overcome the inconsistencies resulting from scattered laws and of the uncertainties of the judged that every commuting case oscillates for a given result. The encoding can also contribute to the selection and updates the existing rules, eliminating the wayward and devices that do not have more functions, implying also on perfecting constitutional procedural system, making it simpler, quickly and effectively.
Following this ideological line, the Brazilian Constitutional procedure code can serve to put our constitutional procedural system in the service of human rights, redefining the concept of citizenship extended by the exercise of these rights in the national and international plan, since the decisions of this international organs, are often ignored by constitutional judges, much due to the absence of regulatory norms and the lack of systematization of a standard procedure constitutional.
The encoding can also establish limits to constitutional interpretation of procedural rules, thereby creating a space of discretion for the constitutional judges, avoiding the so-called activism.
The adoption of a Constitutional procedure code can be also important to adjust the sources of this new branch of law, i.e. establishing your Foundation of validity on planning, establishing their degrees of hierarchy and the criteria for overcoming gaps, including bringing the resulting from international law relating to human rights, recognizing the importance of jurisprudence as a source and, finally, the standards suplementariam the code of Constitutional Procedure in cases of gap, and can even make the doctrine a source, how did the Peruvian.
The code of Constitutional Procedure may also regulate the organic constitutional process which, according to Mathew, initiating the control of constitutionality. Pandey said that the code of constitutional process must "hold and regulate the entire system of constitutionality control current Brazilian", noting the constitutional rules, common and internal regulations, including establishing rules for the control of constitutionality statewide.
You can adjust also the "constitutional processes liberties" instruments that protect fundamental rights in all their dimensions, such as habeas corpus, habeas data, search warrant, among several others. Always aligned with the protective norms of human rights at international level.
Can also integrate the code of Constitutional Procedure other constitutional processes by political choice, noting the historical peculiarities, sociological, political, economic and cultural rights. Suggests Peixotoo addition of solutions to Federal conflict, even including the possibility of reconciliation between them. Another possibility raised was the treatment of the impeachment process, "for the due observance of the due process of law and its consectários software".
In relation to the impeachment, it became clear that the absence of current, clear rules and agree to the systematic, can lead to different interpretations in various directions, which was causing the judicialization of preventing President Dilma Roussef, bringing numerous uncertainties and legal uncertainty throughout the process.
However, the encoding of the constitutional process also brings serious risks. Points Sagüés four of them: malpractice, regression, conflict and esclerotização. The malpractice can occur when bad legislators, incompetent or dubious intentions, hinder or complicate the existing constitutional processes.
The regression occurs when lawmakers instead of developing the constitutional processes, makes them more complex and bureaucratic, going backwards to the past and making little operational. It should be noted that it would not be the Suppression of rights and guarantees already consolidated, because it cannot be handled due to the principle of the fence to step backwards in relation to the constitutional rights and guarantees, but rather the adoption of measures that hamper your exercise.
The conflict can happen when resurrected old arguments have overcome or with the introduction of controversial mechanisms, capable of generating debates that hamper the application of the rules of procedure. This principle is directly related to the previous one.
The esclerotização stems from excessive regulation that prevents the development of new procedural variables or agile remodeling existing operators of the constitutional process, in particular the judges. Can occur, for example, with the adoption of a code closed and hermetic, too, as these do not allow for the inclusion of general clauses, which allow a constant transformation of land use, even without legislative change.
These risks can be avoided or reduced, if taken some measures. Defends Bazán that should be avoided simply importing a normative constitutional procedural system of another country, but must take into account the legal ideology, culture and local social reality, to draw up the encoding. It is also important to wait for the opportune moment for the filing thereof, as these disadvantages would be mitigated when there is a real political interest in the adoption of the code. Finally, you must understand the real intent of application of these provisions by jurists, because without your sincere willingness to comply with these devices, the encoding can have your effectiveness diminished.
Analyzing these three measures and the Brazilian historical moment, one realizes that this is not the best time for the progressing of the project code of Constitutional Procedure, given the political instability arising from corruption scandals and the interests several members of vested legislative power concerned only if save the various charges that incriminating. But this occasion can be very close, overcome this political turmoil and renewed the legislative houses in the next direct elections, it will be easy to demonstrate that the existence of a Constitutional Process code can help to make these moments less traumatic crisis and easier to overcome.
3. Brazilian constitutional justice and their sources
The Brazilian constitutional system initially followed the American system of Constitutional Justice, evolving into a mixed system and peculiar that combines the criterion of constitutionality control diffuse, by way of defence, with the concentrated criterion, via direct action. According to Tavares, "without prejudice to other institutes which also integrate the system".
Thus, all courts are part of the brazilian constitutional justice, since any judge or court may meet the damaging of unconstitutionality. In Brazil there is a pure Constitutional Court, although the Supreme Court stop the constitutional competence, is not the only organ responsible for this control, as well as to judge individual cases in addition to the constitutional questions.
Constitutional justice and the Brazilian constitutional process has as main source the Constitution of 1988, the "citizen's Constitution", named for Ulysses Guimarães. Several are the constitutional procedural devices present in the text. Include: art. 5° the FOLLOWING sections LXXIII; art. 60. art. 102; and art. 103.
The other sources are regulated in the constitutional text. Soon your article 5°, § 2° e 3° §, brings the international treaties in which Brazil is a party, and in relation to human rights, if approved by the National Congress, by three-fifths of its members, in two shifts, voting will have play standards status operational funds.
We also have several ordinary laws. And may be cited: law of writ of mandamus – 12,016/2009; Law of public Civil Action-7,347/1985; Law of Popular Action-4,717/1965; Law of direct action of Unconstitutionality and declaratory action of Constitutionality-9,868/1999, law of Complaint of breach of Fundamental precept-9,882/1999; among other.
You can tell that some of them are prior to the 1988 Constitution, drawn up in different times and on axiológicos principles, which undermines the unity of the Brazilian constitutional and procedural system brings legal uncertainty. Can also be pointed to as the internal regulations of the Supreme Court, as well as all other Brazilian courts (because of the diffuse control of constitutionality), binding precedents and judicial decisions. This complexity of sources could be better organized a Constitutional procedure code.
4. The draft code of Brazilian constitutional process 
The draft code of Brazilian constitutional process, was proposed by Paulo Bonavides by the Federal Council of the order of lawyers of Brazil, and second he is divided into two segments: the actions of defending human rights and Fundamental Guarantees and the defense of the Federal Constitution. It is composed of 167 articles and brings advances to the constitutional jurisdiction, however, it is important to be more apart at some points.
Complies to emphasize that it is only a draft and that until your presentation to Congress, and during your course until the approval may change. Let's see, some important points. In articles 1° and 2° establishes its objects, that is, adjust the constitutional processes, related to the actions of the defence of fundamental rights and collective-constitutional guarantees: Habeas Corpus, Warrant individual and collective security. Writ of injunction, Popular action, Habeas Data, as well as the actions of control of the Constitutionality of laws and normative acts-constitutional guarantees: direct action of Constitutionality-ADIN; Declaratory action of Constitutionality-ADC; Action of Unconstitutionality-ADCOM; by default; Complaint of breach of Fundamental precept-ADPF; Interventional Action-AI; and constitutional complaint-REC; and also the conflicts of jurisdiction provided for in article 102, paragraph "a" of CF/88.
Already in the first two articles are perceived some terminological and reference problems, that need to be fixed throughout your course. Mentioned-"direct action of Constitutionality-ADIN", when the correct, pursuant to law, 1999/9,868 would be direct action of Unconstitutionality-ADIN. We see also that there was no intention to change the name of this action, given that in his own draft, specifically to deal with this (articles 83 to 93), styled correctly.
Also made reference to "action of Unconstitutionality-ADCOM"; by default. Such action was called by law 12,063/2009, which amended the mentioned 9,868/1999, direct action of Unconstitutionality by Omission, in the same way that the draft when it regulated (articles 94 to 101).
In relation to the regulation of the conflict of competence between the Superior Court and all courts, between higher courts, or between these and any other court, the correct constitutional device is article 102, subparagraph (I), point (a), of the The Constitution of 1988, and no "article 102, subparagraph (a)" the "of CF/88".
In your article 3° establishes the purpose of the constitutional process, which is the guarantee of constitutional text and the realization of constitutional rights as fundamental rights, namely, the constitutional process should always protect Constitution, always seeking the maximum efficiency and effectiveness of the rights laid down therein. Later, in article 4, brings the principles of constitutional process: interpretation of the law according to the Constitution, speed, economy, gratuity and socialization.
The principle of interpretation according to the Constitution, according to Canotilho, an understanding, the rules which admit more than one reading (plurissignificativas or polissêmicas), that most closely matches the Constitution should always take into consideration some dimensions: must always prevail in interpreting not contrary the Constitution; whenever possible, the standard should be maintained, avoiding your withdrawal planning; one should not adopt an legem against exegesis, i.e. Unlike your literality or normative sense, for compliance with the Constitution; interpretation is not possible as when the analysis of standard import in precept contrary to the Constitution, and that in this case should be declared unconstitutional; and finally, this principle cannot import in creation of new standard, that is, the interpreter cannot use him to act as positive legislator.
In this sense, to the interpretation as Enterría Constitution is the result derived from the supremacy of Constitution as interpretive principle and technique of decision. Hesse adds that must also be considered the additional principle of interpretation of the Constitution as the law, i.e., interpretation of the constitutional standard, whenever possible, in the sense that the legislature the materialized, along with the presumption of constitutionality of laws, thus confirming the close relationship between them (law and Constitution).
The principle of rapid procedure aims to ensure the effective jurisdictional provision in a time not exceeding the absolutely necessary, removing and simplifying the process. The speed should not imply in a hurry, speedy resolution at any cost, but to avoid wasting time on processing of the process.
Procedural economy is directly related to the efficiency of the jurisdictional provision, since "there are trying to get, always with the least effort possible, the desired results" by the process. Whenever possible and without prejudice to the parties or due process, acts and procedures must be avoided that don't will add nothing new to the process.
The principles of swiftness and economy are directly related and under the principle of reasonable duration of the process, included in both the American Convention on human rights, the Pact of San José, Costa Rica in art. 8, 1, as in item LXXX, art. 5° of the CR/1988.
The fourth is of gratuity. Provides the draft there will be the advance of costs and any other costs, in the first degree of jurisdiction, or order the part author, unless proven bad faith, in attorney fees, costs and charges will apply, in the actions of constitutional guarantees (art.. 9 of the draft); only the payment of costs and prepare the end (art. 69 of the draft); even the author of deal may be condemned to pay reckless of me tenfold of the costs (art. 72 of the draft). As can be noted, the draft provides for the recovery of costs and expenses in the constitutional process, relativising your principle of gratuity.
It turns out that the Constitution of 1988 provides for in your article 5°, item LXXVII, gratuitousness of habeas corpus and habeas data, as well as any acts necessary for the exercise of citizenship. So, given the importance of the defense of the Constitution and of the fundamental rights and guarantees for the exercise of citizenship, would be very welcome that the Constitutional Procedure Act establish the grace of all costs and charges will apply , the example of gratuity of Justice to the Civil Process Code determined to people with insufficient resources, in your article 98. So, we'd have a real principle of gratuity in the constitutional process.
The fifth principle established is the socialization, whereby the Constitutional Justice must assure all the integral protection of their rights, promoting the protection of diffuse and collective interests by modulating the effects of decisions when necessary, and, whenever possible, the interests of society.
The Brazilian Constitutional Procedural Code draft Bill, in its articles 5°, 6° and 7°, brings the rules of jurisdiction, which are established by the Constitution, i.e. is competent for the constitutional process the Judiciary; and then establishes the Constitutional Justice Brazilian mixed type, namely direct control by the Supreme Court and indirect to any Judge in any Instance; and determines application of precedents relating to materials in constitutional demands focus.
Then begins the section of the constitutional guarantees of fundamental rights (art. 8° to 82 of the draft). "Mean by constitutional guarantees the instruments made available to the individuals and legal entities, which, having constitutional seat intended for guardianship, preventive or repressive of fundamental rights" (art.. 8 of the draft), and then bring a sample list of these instruments: Habeas Corpus, Habeas Data, Popular Action, public Civil action, constitutional complaint, writ of mandamus, writ of injunction and right of petition ".
Of these, tackles later, habeas corpus, the writ of mandamus, habeas data and the popular action. Also, the constitutional complaint and writ of injunction, but disciplined within the section of the control Actions of laws and normative acts, which can be considered a misnomer, and that to ensure better structuring of the code should be shifted for this part.
It is not intended here talk about each one of these actions, but we can mention some important devices. These constitutional guarantees will have priority processing in all Judicial and administrative bodies (art. 10), having the habeas corpus priority over the other. Will also be governed by the official impulse, i.e. can the Judge, ex officio, checked some irregularity, determine the restatement in no less than 15 days (arts. 11 and 12).
Then brought the rules concerning the control of the constitucionalidades of the laws and normative acts, namely: direct action of unconstitutionality; direct action of unconstitutionality by omission; declaratory action of constitutionality; and the complaint of breach of fundamental precept (art. 83 art. 130). Continues with the Interventional Action, social guarantee warrant (warrant of injunction), and constitutional complaint (art. 131 to art. 146). In this respect, it has been recommended to offset the writ of injunction and the constitutional complaint for the part which deals with constitutional guarantees.
Then, bring provisions relating to public prosecution (art. 147), which will act at all stages of the process, with ten days to deliver an opinion; the fulfilment of the decisions (art. 148), which will have immediate application and period of 90 days to be prolatadas, functional responsibility; and the legal certainty of the decisions, which may have modulated effects (art. 149). Also addresses the filing of these lawsuits in the State courts (art. 150 art. 158), establishing general guidelines to State jurisdiction.
Then determines the creation of the Center for Constitutional Studies, with the Ministry of Justice (art.. 159). Mentions that the legitimized for the bringing of actions of constitutionality control, are the art. the CR 103/88. Imposes the need to advocate for the filing of these actions (art. 162).
Features also rules on the Supranational Jurisdiction (art. 163), allowing "any person who has a lesion in his constitutional rights, may appeal to the international courts, with the scope to obtain revocation of judicial decisions relating to constitutional rights and guarantees"; the effectiveness of international decisions (art. 164), which should be "carried out immediately by the national powers"; and the international jurisdiction (arts. 164 and 165), according to which the UN, the OAS and others with whom Brazil has signed international treaties shall have jurisdiction in Brazil and will have access to all information necessary for the fulfilment of their decisions.
We have a breakthrough in relation to supranational jurisdiction and the compliance with its decisions in national territory. It turns out that it's still very incipient and for bringing indeterminate legal concepts such as "national powers", may not produce the desired effects.
It would be a great opportunity to determine how these international decisions would be completed in Brazil, in what way, why specific organ, and even determining penalties for non-attendance, your evolving more in the protection of human rights in the Brazil. Concludes by determining a vacatio legis of three months.
5. Constitutional procedures in other countries.
Three countries have already created a Constitutional Process code: Costa Rica (1989), Peru (2004) and Bolivia (2012). The province of Tucumán (1999), in Argentina, also enacted the your.
Does not fit here speak about each existing code, but show that they exist and can serve as inspiration for the Constitutional code of Civil procedure.
Defend a Constitutional procedure code is required, means that he is indispensable, cannot be dismissed, for the proper functioning of the Brazilian constitutional system.
Maybe the country is passing through the worst institutional crisis of your history and constitutional organs are achieving, as far as possible, overcome the problems with a certain stability. Analyzing how the code of Constitutional Procedure is not necessary. But if he existed, with the advances needed, maybe this moment could be less turbulent.
It is undeniable that the encoding can bring numerous benefits, the main one being the search for effectuation of the rights and fundamental guarantees and human rights.
However, you must wait for the right time to move forward in your processing. As stated before the political crisis faced, the design can be modified to serve illegitimate interests, thus losing your reason for being.
This moment might be next. And when you arrive, you should be prepared for your approval represents a real breakthrough for brazilian democracy.
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 Notary and Registry Law specialist by the University Anhanguera-UNIDERP. Master's degree in Social function of law from FADISP.
 Notary and Registry Law specialist from the Pontifical Catholic University of São Paulo (PUC/SP-COGEAE). Master's degree in Social function of law from FADISP.
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 Ibid., p. 131
 Ibid., p. 133-136
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