08
2021
Members of the IDP Constitutional Observatory form a committee of jurists in the Chamber of Deputies
![Members of the IDP Constitutional Observatory form a committee of jurists in the Chamber of Deputies](https://wpcdn.idp.edu.br/idpsiteportal/2020/11/idp-na-midia.png)
Teachers Members of the IDP Constitutional Observatory make up Commission of Jurists in the House of Representatives to prepare a draft legislation that systematizes norms of the Brazilian constitutional process.
The House of Representatives instituted a jurist commission to prepare a draft legislation that systematizes the rules of Brazilian constitutional process [1] . The act of creation is justified by the need for consolidation, systematization and harmonization of the norms dealing with the process and judgment of the actions of abstract control of constitutionality, constitutional complaints, writ of mandamus, habeas data, injunction and appeals. Extraordinary, updating them with the jurisprudence of the Federal Supreme Court.
Jurists who have been participating in this Constitutional Observatory for many years also make up the committee, such as its illustrious president, teacher and STF Minister Gilmar Ferreira Mendes, as well as great constitutionalists such as Ingo Sark (Rapporteur of the Commission) and Lenio Streck, as well as the Colleagues Georges Abboud, Rodrigo Mudrovitsch and Victor Fernandes.
The Observatory, therefore, will closely monitor the work of this important commission and, therefore, I intend to leave some suggestions here (I will not be exhaustive), taking into account the specific limits of this column space.
The Brazilian constitutional process is characterized — and thus distinguishes itself from models of Comparative Law — by the quantity, diversity and originality of constitutional actions aimed at guaranteeing rights and protecting the Constitution. Unlike models found in other countries, the Brazilian system does not reserve the function of protecting fundamental rights to a single type of action or resource. Different constitutional actions are aimed at this objective, each with its own specificity, mainly the writ of mandamus — a genuine creation of the Brazilian constitutional system, inspired by the Mexican amparo court, as I have already explained in this same column [2] — Habeas Corpus, habeas data, writ of injunction, public civil action and popular action. This diversity of constitutional actions typical of the diffuse model is also complemented by a variety of instruments aimed at the exercise of abstract control of constitutionality by the STF, such as the direct action of unconstitutionality, the direct action of unconstitutionality by omission, the declaratory action of constitutionality and the allegation of non-compliance with a fundamental precept.
Perhaps the Brazilian system would not need so many actions to safeguard rights and protect the constitutional order with due effectiveness. In countries that also adopt mixed systems of constitutionality control, a specific (and reduced) set of constitutional writs and actions or resources for abstract control demonstrates that the existence of a distinct procedural instrument for each right that is sought to be guaranteed is unnecessary, thus as an action for each type of request and/or cause of action within the scope of control in the abstract. In most Latin countries, for example, the exclusivity of the court and the appeal for amparo (civil or criminal) is observed, in addition to few constitutionality control actions. [3].
In Brazil, at least in what corresponds to the abstract control of norms, it is observed that a system that has this quantity and diversity of actions ends up needing, to function with any effectiveness, standardization of procedural rites and decision techniques. Proof of this is that, since its initial normative conformation, especially in the 1990s (especially Laws No. 9,868 and 9,882, of 1999), the direct action of unconstitutionality (ADI) and the declaratory action of constitutionality (ADC) were treated by the doctrine as having a dual or ambivalent character, which makes them, practically, the same action "with a changed sign" [4] . And, subsequently, the STF itself ended up having to admit that between direct actions of unconstitutionality by action (ADI) and by omission (ADO) there must be procedural fungibility [5] , which is also applied in the relationship between the direct action of unconstitutionality (ADI) and the allegation of non-compliance with a fundamental precept (ADPF), in view of the subsidiarity relationship between these actions [6] .
Therefore, if it is not currently intended to develop proposals for reforming the constitutional text to simplify the list of actions for the abstract control of constitutionality, the legislative systematization of procedures and decision-making techniques is currently fundamental. It is on this aspect that the Commission needs to focus more carefully, even given the need to update the rites of existing actions with the STF jurisprudence.
Systematization and standardization do not mean the mischaracterization of the specificities of each action, taking into account the different types of requests and causes of action that each one entails. An effort to consolidate and standardize, with the maintenance of some specific rites, was fully possible when we prepared the bill on the direct action of unconstitutionality due to omission, which became, without any modification of our original text, Law No. 12,063 , of October 22, 2009, which included chapter II-A in Law nº 9,868/99. I had the opportunity to participate in the writing of that text and so I can say that, for example, the drafting of articles 12-E and 12-H, §2°, had the objective of providing the necessary systematization of the rites specific to the direct action of unconstitutionality by omission (ADO) with the rites and decision techniques of the direct action of unconstitutionality (ADI). This systematization is well explained in an article I published in this ConJur at the time of the advent of that law [7] .
In the field of precautionary measures, the fungibility of procedural rites, or even decision-making techniques, is an undeniable practical necessity. The Supreme Court, for example, has long ago adopted, for the precautionary measure in ADPF that determines the suspension of legal proceedings involving the application of the contested law, a period of 180 days for the definitive judgment of the merits of the action, provided for the ADC (article 21, sole paragraph, of Law 9,868/99). The STF has also agreed to apply, by analogy, the procedure of article 12 of Law 9,868/99, which governs the ADI, to the ADPF, which is subject to the procedure established in Law 9,882/99 [8].
When it comes to precautionary measures, it should be noted that the commission will also have the opportunity to propose normative solutions to the current problem of preliminary measures decided in a monocratic manner, especially in direct actions of unconstitutionality. Since 2012, including in articles published in this ConJur [9] , I have forcefully stated that these monocratic precautionary measures are generally illegal, due to violation of Law 9,868/99 (article 10), and unconstitutional, due to an affront to article 97 of the Constitution. In more recent studies, I have also been stating that, in addition to patent illegality and evident unconstitutionality, the practice of monocratic precautionary decisions in the abstract control of constitutionality constitutes a complete transgression of one of the fundamental components of the deliberation of a constitutional court: collegiality [10 ] .
The hypotheses, always extremely exceptional, for the monocratic granting of precautionary measures in the abstract control of constitutionality must be well delimited and normatively defined. The current situation requires it and, therefore, it is necessary to regulate the use of the general power of caution by the rapporteur in abstract control actions. As I have stated on other occasions, this is an imperative that arises from the functional division of powers itself. And, in this context, it could be proposed to completely repeal or substantially change the wording of the current §1 of article 5 of Law 9,882/99, which has been used, including by analogy, for the monocratic granting of injunctions in control actions abstract.
Still in the context of precautionary rites, the commission may also face what we previously called the phenomenon of "ordinarization" of the procedure in article 12 of Law No. 9,868/99, a patent distortion of its primary purpose [11] . As is known, the teleology of article 12 is to allow the court to make a definitive judgment on the merits quickly. Its application, therefore, must be conditioned on the effective fulfillment of this purpose required by the standard. However, in practice, due to a series of factors that we analyze in more depth in another work [12] , the processing of cases in accordance with article 12 commonly takes the same time as processing them using the ordinary procedure. It is therefore worth asking, given the permanent situation of excessive cases on the STF Plenary's judgment agenda, how could the rite of article 12 be rethought? What normative solutions could provide the court with the institutional capacity for a speedy final judgment?
Given the proposal to rethink the rite of article 12 of Law nº 9,868/99, what is necessary at this moment is to work with different alternative precautionary rites, which allow the court to act quickly in urgent cases, including the final judgment. merit, an objective always aimed at when the special rite of article 12 was instituted. In this aspect, it is currently necessary to have a normative provision for the possibility of converting the judgment to a precautionary measure in a definitive judgment on the merits, which the court itself has already admitted in some cases [13] . As practice has demonstrated, in certain circumstances, this conversion of judgment becomes inevitable.
In addition to paying attention to precautionary rites, the commission will also have the opportunity to work on the systematization of different decision-making techniques in the control of constitutionality, which have undergone several adaptations by the STF in the last decade. Some advances observed in jurisprudence have already been duly incorporated by some more recent laws, such as the Writ of Injunction Law (Law No. 13,300, of 2016) and the Law of Direct Action for Unconstitutionality by Omission (Law No. 12,063, of 2009), which provided important improvements in decision-making techniques for controlling unconstitutional legislative omission (total and partial). The distinct and innovative decision-making techniques now need to be subject to greater systematization, due to their potential to be applied to all abstract control actions.
An important topic, in this aspect, concerns the necessary normative distinction between the techniques of interpretation in accordance with the Constitution and the declaration of unconstitutionality without reducing the text, whose clear differentiation, which has long been established in theory [14] and suggested in The provision of article 28, sole paragraph, of Law No. 9,868/99, has not been adequately absorbed by the STF jurisprudence. This is another important point for the commission's analysis, which will be able to evaluate, in the field of theoretical distinction between text and norm, the possibilities of typifying different techniques for additive or substitutive interpretative decisions, widely recognized in Comparative Law [15] and already adopted by the STF itself in some cases.
As for the constitutional actions of the subjective process, there are also several interesting proposals for its improvement, but which cannot be exposed here, due to the space limit of this column. In any case, I cannot fail to take this opportunity to highlight an important aspect of the injunction writ action process, which ended up being left out of the definitive text of Law No. 13,300/2016. Although at the time we made proposals in this regard [16] , the Writ of Injunction Law did not provide for rites and decision-making techniques for granting injunctive measures, based on old STF jurisprudence. However, the legal provision for the preliminary injunction in the injunction order is something that, in the current development of the STF's jurisprudence and the legislation on unconstitutional omission (especially Law 12,063/2009), must be subject to consideration by the commission.
Anyway, these are just some suggestions for the necessary reform of the Brazilian constitutional process. It is now expected that the new presidency of the Chamber of Deputies (Biennium 2021/2022) maintain the work of the jurists commission and provide the institutional conditions for its full development.