Legitimidade constitucional procedimental: parâmetro para o controle jurisdicional do processo legislativo

Abstract

This work analyzes in detail the jurisprudence of the Brazilian Supreme Federal Court (STF in Portuguese) on lawmaking and, more specifically, on the application of the doctrine of internal issues, still a majority in the Court. Based on the analysis of the grounds of such rulings, the author seeks to categorize procedural violations in three different fields: (i) procedural violations of the Legislative Branch bylaws (from the Chamber of Deputies, the Federal Senate, and the National Congress); (ii) procedural violations of individual rights and guarantees; (iii) procedural violations of constitutional precepts. The categorization aims to differentiate the cases of procedural violations brought before STF, to refute the understanding that any procedural violation coincides with an internal issue that would be immune to judicial review. The work aims to question the application of this understanding, defending the judicial review of legislative bylaws when its provisions materialize constitutional principles and values. Thus, issues now stamped as internal issues by STF are often true constitutional issues interposed, which, in this capacity, attract the jurisdiction of the Court. To allow such an understanding, the work presents the contemporary conception of separation of powers, intending to definitively depart from the basis used by the STF for not accepting to rule regimental violations. In most cases, instead of violating the separation of powers, the performance of an impartial arbitrator ends up promoting it and giving it effectiveness. Finally, this thesis proposes the concept of constitutional procedural legitimacy as a parameter for judicial review of the legislative process. The exercise of constitutional jurisdiction by the STF must seek the dignity of Parliament and, ultimately, the effectiveness of the founding principles of legislative activity: republic, democracy, and the rule of law.