Artigo 52, inciso X, da Constituição Federal de 1988: um caso brasileiro de mutação constitucional?

Abstract

In Brazil, constitutionality control emerges as a mechanism capable of safeguarding the compatibility of ordinary legislation with the constitutional text. With regard to diffuse constitutionality control, for the decisions rendered to have binding and erga omnes effects, the Constitution of 1988 brings requirements established in its article 52, item X. According to this provision, it is necessary that the decision in diffuse control be issued by the Federal Supreme Court determining the unconstitutionality of the law, as well as the declaration of the suspension of execution by the Federal Senate, through a resolution. Yet, since the judgment of Constitutional Complaint No. 4.335/AC7 by the Supreme Court, the thesis of the "abstractivization of the diffuse control of constitutionality" - which refers to the "constitutional mutation" of this provision - has been discussed. According to this thesis, the decisions issued in diffuse control by the Federal Supreme Court would now have erga omnes effectiveness, regardless of the declaration, by resolution, by the Federal Senate, due to the constitutional mutation of article 52, X, of the Constitution. Thus, the role of the Federal Senate becomes merely that of publicizing the decisions. However, there is intense criticism of the theory raised due to its historical origin and the way it has been developed in order to change the meaning of a constitutional rule. In this regard, this paper aims to analyze to what extent the theory of constitutional mutation of the aforementioned provision would be compatible with the Federal Constitution. As to achieve the objectives, the research method used was dialectical, through the confrontation of arguments in favor and against the thesis and the monographic procedure method. It is concluded, based on the research developed, that the theory at stake is not a wise decision on the grounds that it is not compatible with the Brazilian Constitutional Charter.