Freios e contrapesos: a edição de medidas provisórias e a relação entre os poderes no Brasil

Abstract

This monographic paper focuses on verifying the dimensions of the legislative power of the Executive intervention – with especial attention on the edition of the provisory regulations -, in the relations with the other established Powers, and if the Legislative Power and the Judiciary Power utilize the checking instruments in order to impede the functional imbalance, restraining in this way the supremacy of one institution over the others. The theories of the partition of powers and of the checks and balances system remain updated in their concepts and applications. They are important instruments in delimitation of institutional functions and in the control of the power by the power. The Executive Power, making use of its legislative power constitutionally granted by editing provisory norms in an intense and continuous manner, reveal its supremacy before the Judiciary and the Legislative Power. The hypertrophy of that Power is confirmed by the formation of the so called coalition governments which have in the Legislative Power – in agreeing with the distribution of positions in the administration – a cooperative power par excellence in the legislative activity carried out by the Executive Power. The Judiciary Power with its focus centered in its Supreme Court – effective guardian of the constitution – must attenuate the litigations evolved from the addition of the referred norms, not seldom unconstitutional which hit head-on fundamental rights. The Judiciary Power performs an extremely important role in the institutional relation and it is gaining in magnitude as the responsible for the integrity of the constitution as an effective restrainer of the legislative abuse and, as a final analyses, the restrainer of the possible tyranny of one power.