O controle de constitucionalidade político repressivo de tratados e convenções internacionais

Abstract

It seeks to understand whether the National Congress has the legitimacy to carry out repressive political control over the constitutionality of international treaties. The hypothetical-deductive method was used, through the confrontation of opposing theories and the identification of the predominant one in Brazil or the most adequate to the Ordering. We sought to identify in the doctrine and jurisprudence if the treaties could undergo constitutionality control, through the analysis of their position in the staggered system of norms, reaching the conclusion that it would be possible. We sought to analyze the role of the main legitimate bodies to carry out judicial and political control: organs of the Judiciary and National Congress, from the perspective of pre-1988 positivism, neoconstitutionalism, Dworkin's post-positivism and the state of Parliament's lethargy with the 20th century. It was found that a supremacy of the Judiciary was established, but that there was no exclusion of the Legislative as guard of the Constitution. In this sense, it was proposed to redefine the role of Organs mentioned bodies, with the valorization of political bodies and dialogue with citizens, according to the established deliberative participatory democracy and Dworkin's post-positivism. Finally, based on the position of international treaties and the resignified role of Organs competent bodies to carry out the constitutionality control of the rules, it was concluded that the National Congress can carry out repressive political control over traditional international and human rights diplomas , by means of normative species present in Art. 59 of CR / 88, whose decision could be reviewed by the Brazilian Constitutional Court, provided that it obeyed the requirements of popular participation in the process and the exclusively legal reasoning of the decision, regardless of the President's participation. Republic.