Restrições ao controle difuso da constitucionalidade das leis e ao poder geral e de cautela do judiciário no Brasil

Abstract

This dissertation has by central theme the restrictions who were imposed to exercitation of diffuse control of constitutionality in Brazil, specially in period after of 1988, and institutional consequences, the stop suffered by the diffuse control, principally on laws directly linked to Executive Power which have implications with the reformulation of costs in Public Administration. Among several examples that show the decrease of diffuse control there are the process about privatizations of public enterprises, servants, and the reformulation of tributary and social security systems. After the publication of law nr. 9.494/97 and the decision of the Declaratory Action of Constitutionality nr. 4-6/97 by the Supreme Federal Court whose subject was the consideration about the constitutionality of verdicts by the judges of first jurisdiction degree, in Federal Justice, specially on processes against Public financials. So, in the political and jurisdictional senses, judges were considered forbidden to decide using, in these cases, their general power of caution. So, is not possible for judges of 1st Instance neither the concession of provisional measures nor the preliminary decision, as much as to give proffer sentences against State, same when efficacy of this decisions is dependent of appreciation by 2nd degree of Jurisdiction because several institutes and appellations were created by Executive Power using the provisory act. This traditional form of constitutional control of laws and normative acts of State is considerate as the structure of the legal democratic state. The diffuse control of constitutionality of laws by Judges of first Instance of Judicial Power become the most demonstrative example of the necessity of its full actuation and free exercise, without concentration.