O Controle Jurídico dos Atos Políticos: Trajetória, Teoria e Métodos

Abstract

This Thesis begins by investigating the historical trajectory of political acts, a category forged as an antidote to the judicial review. Chapter 1 examines the development of the French theory of the ‘actes de gouvernement’ and the evolution of the political question doctrine in the United States, as well as the process of incorporation and opposition to these ideas in Brazil, from the Imperial Constitution of 1824 to the Charter of 1969. In Chapter 2, the non-justiciability doctrines are confronted with the evolution of the Brazilian constitutional norms and theory, specially, with the following principles enshrined in the Federal Constitution of 1988: (a). Normative Supremacy of the Constitution; (b). Republican Principle; c. Non-Obviation of Jurisdiction; and (d). Separation of Powers. Chapter 2 also addresses the positioning of judicial review between the realms of Politics and Law, discussing the political contingencies of the Judiciary branch and proposing ethical principles for the exercise of constitutional jurisdiction, depending on whether the judges are faced with circumstances of institutional stability or democratic crisis. Subsequently, instead of abandoning the category, it is proposed to readjust its meaning and, based on clear technical-legal criteria, the catalog of political acts contemplated by the Federal Constitution of 1988 is identified. Political acts are constitutional prerogatives that promotes: (i) the internal structuring of a Branch; or the relationship between (ii) Independent Branches; (ii) Federative Units; or (iii) Sovereign States. As for the practical meaning, political acts demarcate the borders of a special system of judicial review, which must be guided by procedural liturgies, decision criteria and degrees of judicial intervention adequate to the protection of independence and harmony between the Branches. This is the object of Part II: to lay the foundations for the collective construction of a method specific to the judicial control of political acts, which identifies the requirements that condition their validity and guides the magistrates to judge the actions that challenge them. In Part III, the following kinds of political acts will be examined: political appointments, federal intervention, presidential pardons, and impeachment. The ultimate objective of the Thesis, therefore, is to present concrete applications of the theoretical proposals and the decision-making method formulated in comparison with the recent jurisprudence of the Brazilian Supreme Court.