Intervenção estadual no município: legitimidade democrática e crise de representação política

Abstract

This study approaches the theme of federal intervention from the federative model created by the Constitution of 1988. This theme is relevant because the Brazilian State, by including the Municipalities as entities of the Federation, demanded the constitutional legislator the introduction of two new characteristics to the study of Federalism, the tridimensionality of the Federation and the State intervention, making it a unique model. In this sense, the “intervention in the entity of the federation” – expression that is adopted given the singularity of the current Brazilian model – is an exceptional political act that confers the possibility of relativizing, for an indetermined period of time, the autonomy of the States, the Federal District, the Territories and the Municipalities. The lack of study about the “State intervention” and the unmoderated use by some states of the Federation confers the objective to this research, which is focused on the problem of assuring the Municipalities as entities of the Federal Republic of Brazil and, as such, aims to define the criteria that should be adopted when, in light of some factors, situations and circunstances that identify a material requisite that justifies the relativization of the Municipality´s autonomy emerge. As such, the research is a theoretical one and makes use of bibliographical and documental research. In relation to the bibliographical research, in addition to the historical facts on the intervention around the world and in Brazil, is based on the theoretical contribution of Luigi Ferrajoli and his theory of “constitutional democracy”, that proposes a new axis of constitutionalism, under a juspositivist conception, named “constitutional garantism”, in order to trace the substantial criteria that oblige and limit the use of the power of the State to intervene in the Municipality. In relation to the documental research, it is centered on the analysis of precedents and the State constitutions. In regards to the analysis of precedents, the cases of federal intervention were studied, the ones that were originally judged by the Federal Supreme Court, as well as the cases judged as juridical control of State interventions. In the ordinary precedents, we researched the cases judged primarily by the State Tribunals on State interventions on the Municipalities. In relation to the State constitutions, it was verified how each one of them treats the intervention, analyzing if the requisites brought by these State constitutions are consistent with what is in the Federal Constitution. The development of this study is centered on the deductive approach, keeping in mind the complex task of unveiling the adaptation of the new constitutional concept of Municipalities, turned into entities of the Federative pact and the obligation to protect its autonomy and, by derivation, secure the realization of public policies that are fundamental to the life of the Brazilian citizen. As a result, we currently live in a silent state of intervention in the federal entity, since the autonomy of the Municipalities is not being secured. On the contrary, it is being violated.