O controle judicial do processo legislativo: entre a teoria dos atos interna corporis e a efetivação do princípio democrático

Abstract

The theme of this dissertation is the judicial control of Brazilian lawmaking process. Considering the process of normative elaboration a fundamental element for democratic legitimization of law, including for effectiveness of the rights of parliamentary minorities, the text investigates the limits and possibilities of judicial control from the perspective of internal proceedings of Legislative Branch. It analyzes the Brazilian supreme court's position that has been considering the controversies of regimental nature as interna corporis matters of Parliament. The research identifies the following categories of regimental rules, corresponding to the functions exercised by parliamentary bodies: of organization and operation; of inspection of governmental acts; of sanctioning and disciplinary nature; and of legislative procedure. Adopting the premise that internal proceedings are endowed with legal nature and normative force, the work concludes that, with the exception of provisions of organization and operation, whose internal effects and link with parliamentary autonomy are more evident, Judiciary may examine the validity of congressional acts that have failed to comply with the rules of internal proceedings. On the other hand, the legal consequences of edition of laws that have not observed lawmaking process' rules are also examined. Regarding this type of regulatory rule, the research distinguishes between provisions that only repeat constitucional norms; those that complement, densify or concretize constitutional rules; and those that deal with themes not addressed by the Constitution. In the first case, it is argued that the violation of internal proceedings will translate into a direct offense against the constitutional text itself. In the second case, the recognition of parametricity of rules of procedure responsible for adding, densifying or concretizing the Constitution is defended, so that its violation will result in formal unconstitutionality of the law finally enacted. Lastly, in the third case, it is pointed out that the violation of rules that regulate matters without connection to constitutional order will not mean the nullity of the edited rule.