A regulação do processo objetivo pela jurisprudência do Supremo Tribunal Federal: limites e possibilidades

Abstract

Generally, in the contemporary States, the Judiciary branch has the role of defending the supremacy of Constitution. One of the main apparatus for such exercise is the judicial review, which is a constitutional jurisdiction instrument used by the Constitutional Court to analyze the compatibility of certain political or legislative decisions regarding the Constitution. Since 1965, Brazil, as some European continental countries, adopted the Austrian system of judicial review, guided by an objective process. Based on the constitutional jurisdiction point of view, the expression objective process means a concern to ensure the respect to Constitution, not to ensure a specific part claim. Although such mechanism had been introduced in Brazilian legal system with the Constitution of 1946 and had been gained status of the main mechanism of constitutional supremacy controlling under the Constitution of 1988, this advance was not accompanied by a satisfactory and systematic regulation of objective process. This occurred because the rules which regulate it (Laws n. 9,868 and n. 9,882) entered into force only in 1999. During this period of legislative inaction, the Constitutional Court, moved by the need of ensuring the supremacy of the Constitution, constrained the procedure of the Austrian judicial review model. And such activism in regulating the objective process has been made through techniques of self-creation and hetero-reference. Even if the prerogative of creating procedural rules, and therefore the privilege of editing objective process, are under a legislative charge, the legal system does not prevent that the judiciary branch regulates the procedure of actions based in the Austrian model. The assumptions of Dworkinian theory of law as integrity lead to the claim that the Brazilian Supreme Court has the constitutional legitimacy to regulate case by case the rules of the objective process. However, such activity must observe certain limits, which are related to the construction of a objective process by the Brazilian Supreme Court case law. Such limits must observe, firstly, the law as integrity, which requires the assumptions of case by case law, the normative system harmony, and the use of arguments on principles, not on politics; and, secondly, following the theory of Jeremy Waldron, the judiciary branch has to observe the pre-existing legislation.