O acesso à justiça no âmbito do controle de constitucionalidade: a OAB como catalisadora da participação social no STF

Abstract

This study examines the privileged role occupied by the Brazilian Bar Association (Ordem dos Advogados do Brasil, or OAB) following Brazil’s 1988 Federal Constitution, with the objective of determining whether it may be regarded as a representative of the public and social interest — collective in nature — and assessing whether its activities, as a “universal” standing entity for constitutional review, have effectively democratized access to justice and spurred social participation in the Federal Supreme Court (Supremo Tribunal Federal, STF), as envisioned throughout the constitutional drafting process. The central justification for this research stems from the prominence the OAB assumed in the new constitutional order as a sui generis entity vested with both legal and political power, yet without being subject to significant external oversight. Another motivation is the paucity of empirical studies focused on the OAB’s role within this context. The methodology combines a literature review with documentary analysis, encompassing official documents from the National Constituent Assembly (Assembleia Nacional Constituinte, ANC), the OAB Federal Council, and the Federal Supreme Court. The work begins by engaging with the theoretical framework of access to justice through rights (Marona, 2013; Avritzer, Marona & Gomes, 2014; Orsini, 2020) and the dimension of social participation therein, situating the role assigned to the OAB within that conceptual approach. The dissertation then reconstructs the debates in the National Constituent Assembly (1987–1988), particularly regarding the inclusion of the OAB among those granted standing for constitutional review under Article 103, and explores the political, legal, and social functions historically performed by the OAB in the formation of the Brazilian state. It also investigates how the OAB’s role was — and continues to be — reconfigured by the STF’s jurisprudence in the decades following the constitutional process. In the final chapter, an empirical examination of the 375 lawsuits brought by the OAB in the last thirty-six years provides insight into how the Association has employed the prerogatives conferred by the 1988 Constitution. More specifically, the research evaluates how the OAB Federal Council decides which claims merit pursuit in constitutional review, while identifying the principal interests and subject matters at stake. Contrary to the initial hypothesis, the study concludes that the OAB does not act purely in a corporatist manner. A majority of its cases fit into a “Mixed” category of interests, particularly in the Judicial-Political dimension: although these actions include issues of special concern to the legal profession, they also implicate the public interest and the broader community, insofar as they relate to the functioning of the judiciary itself. Nevertheless, the internal deliberative processes within the OAB remain largely opaque and do not incorporate institutional channels for popular participation; moreover, the Sociopolitical dimension of its litigation—focused on the defense of fundamental rights in a broader sense—comprises a proportionally smaller share of its overall docket. From this perspective, the promise of expanded access to justice through constitutional review is not yet fully realized in the OAB’s work, largely because there are no clear mechanisms by which its universal standing might engage and accommodate civil society’s demands.