Diálogo constitucional entre o STF e o Congresso Nacional no controle de constitucionalidade por omissão na vigência da Constituição Federal de 1988

Abstract

This paper aims to analyze the functioning of the theory of constitutional dialogue, in the context of the system of control of unconstitutionality by omission created in the Federal Constitution of 1988. To achieve this objective, the research is based on a review of the literature on the theme of constitutionalism and democracy, especially on the legitimacy of judicial review. Thus, the research begins with a historical perspective, with the review of the work of the National Constituent Assembly of 1987-1988. A relevant theoretical issue, the theme of the directive constitution, is dealt with in view of the relationship between constitutional directionalism, the legislator's attachment and unconstitutional omission. The default constitutionality control model provided for in the Brazilian Constitution of 1988 is problematizing the traditional Kelsenian view of Constitutional Courts as negative legislators. In this sense, the procedural instruments to combat legislative omission created by the constituent, especially the injunction, caused widespread doctrinal and jurisprudential controversy by enabling the realization of constitutionally dependent constitutional rights, which would make the courts positive legislators. The possibility of judicial review to generate a problem of democratic legitimacy is a subject debated from the monological and dialogical theory. The monological ones start from the premise that there is a final decision regarding constitutional interpretation. The controversy on this topic is to define which state body would be responsible for the 'final word' on the interpretation of constitutional norms: the political bodies or the courts. The perspective theory of constitutional dialogue has been welcomed in Brazilian doctrine as a synthesis of the controversy over whom the primacy of constitutional interpretation belongs: judges or legislators. In the present work we defend the hypothesis that the theory of constitutional dialogue is viewed in a benign way, mystifying the conflicts between powers. Regarding the applicability of dialogical techniques in the control of constitutionality by omission, the existence of a formal method of dialogue between the powers in Brazil is argued, which operates in a non-deliberative manner, contrary to what many scholars argue. The low effectiveness of the dialogue between the Supreme Court and the National Congress in the supply of legislative omissions is also discussed.