A (in)constitucionalidade da PEC 33 de 2011: a quem cabe a guarda da constituição?

Abstract

The idea of supremacy of the Constitution brings inculcated the necessity of performing a law control, reason why two major systems have been created, the one performed by diffuse/incidental pathway, originating in the United States, and the concentrated system, originated in Austria. The Austrian system, developed by the jurist Hans Kelsen in the early twentieth century, assigned the guard of the Constitution to a Constitutional Court parallel to the Judiciary Power, with exclusive jurisdiction to annul the laws incompatible with the Constitution. After World War II, this system has spread Europe apart, parallel to the phenomenon of constitutionalism. However, it was assigned to the Judiciary the competence to perform the abstract law control, as well as new instruments of interpretation were created, such as, for example, a conforming interpretation. In Brazil, the concentrated system was adopted by the Constitutional Amendment No. 16 of 1965, which created the institute of Representation of Inconstitutionality, under the exclusive jurisdiction of the General Attorney of the Republic. In the Federal Constitution of 1988, this mechanism has been enhanced, transforming itself in the Unconstitutionaly Direct Action, whose list of legitimated was expanded. Beside this, new law control tools were created, such as the Declaratory Action of Constitutionality, Direct Action by Omission and the accusation of breach of fundamental precept. Therefore, the actions that pugnavam the constitutionality of laws greatly increased after the advent of the new Constitution, which altered the institutional role of the Supreme Court. In this context, arises the Proposed Constitutional Amendment No. 33 of 2011 with the main goal of restoring the balance between the Powers. Among the proposed changes, the PEC 33/2011 aims to remove from the Praetorium Exalted the exclusivity of law control, subjecting the decisions of merit given by the Supreme Court that consider the Constitutional Amendments uncontitucionals to the National Congress and, secondarily, to the population. Thus, this study aims to analyze the constitutionality of this proposal in the actual juncture of law control established by the legal system.