O mandado de injunção perante o Supremo Tribunal Federal: a reserva da jurisdição constitucional do Supremo Tribunal Federal para o suprimento  das omissões legislativas inconstitucionais

Abstract

The thesis deals with the process of constitutional adjudication in case of legislative omissions (legal gaps that violate constitutional determinations or unconstitutionality by legislative omission). It gives special attention to the constitutional remedy called writ of injunction ('mandado de injunção'), which allows citizens to directly access the Brazilian Constitutional Court in case of violation of constitutional rights and freedoms that result from the lack of an enabling legislation. The research seeks to provide a theoretical guidance to understand this problem and its possible solutions. It is argued that the problem of legislative omission is fundamentally a problem about the relationship between the legislative and the courts, and about the limits to constitutional adjudication. The challenge is to guarantee the effectiveness of constitutional rights without undermining democracy (and the powers of the legislative branch). It is argued that, within the Judiciary, only the Constitutional Court has the power to review legislative omissions. The techniques to judge legislative omissions should improve the institutional dialogue between the Constitutional Court, the Legislature and the ordinary courts. I argue that the control of legislative omissions is compatible with constrained judicial review (weak judicial review). Facing a case of unconstitutional legislative omission, the Constitutional Court has a privileged but not unlimited role in interpreting the Constitution. Ruling on constitutional questions about legislative omissions, the Constitutional Court should either call for legislative action or be open to legislative revision in the short run.

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

“…(FERNÁNDEZ RODRÍGUEZ, 2007, p. 18). 15 Como sugestão, os estudos de Cunha Júnior (2008); Piovesan (2003); Bernardes (2003); Quintas (2013).…”