Bloco de constitucionalidade como fundamento para o controle judicial do processo legislativo

Abstract

This research turns to the control that the Judiciary exercises over the Legislative during the legislative process. The legitimacy of this controle is based on the existence of a Brazilian constitutional block, within which the parliamentary internal regiments are located, bringing provisions on the legislative process, which is a constitutional matter. The first part of the paper is dedicated to the origin of the constitutionality block and how the idea was radiated around the world, especially Brazil. It prevails the construction of a Material Constitution, made up of norms that, although infraconstitutional, contain constitutional content and, therefore, serve as a parameter of control against acts and normative dispositions that attempt against them. The second chapter discusses the legal nature of so-called parliamentary internal regiments and its main aspects, notably the so-called interna corporis rules that compose them, traditionally removed from any kind of control by the Judiciary. Also from a comparative analysis, it is proposed a more restrictive interpretation of what would be the interna corporis norms, in counterpart to the reading that extends them to any regimental disposition, and opening the possibility of taking the internal regiments as parameter of control, in order to legitimate the syndicability of the legislative process that disrespects them. The third chapter goes through the constitutional philosophy to find justification to judicial control of the legislative process. Turning to the issue of judicialization of politics as a consequence of deficient parliamentary action, the main notes of the proceduralist and substantialist currents are discussed in their disagreements on the possibility of the defended control. It is concluded that both leave exits that legitimize the judicial action on the legislative process. It is also worth noting a third way, the guarantor, which seems to be the best fit to justify the thesis here elaborated, since it defends the material legality of the normative acts when respecting the formal dispositions that sustain them. In this way, when acting on the process of the elaboration of the norm, the constitutional jurisdiction would be ensuring the material constitutionality of it. Lastly, the fourth chapter deals with the legal instruments that can be used to provoke the Judiciary. According to the dominant view, the writ of mandamus is an action capable of challenging the act of the authority in front of the legislative process that has incurred in some violation of the rules that lead it. Criticisms are raised regarding the limitations imposed by the writ of mandamus, and finally, considerations are made regarding the federal unfolding of control of the legislative process, concluding for its possibility, having in view the concrete diffuse character of this type of control.