Professors who are members of the Constitutional Observatory of the IDP (Institute of Public Law) form a commission of legal experts in the Chamber of Deputies to draft a preliminary bill that systematizes the norms of the Brazilian constitutional process.
Check out the article by André Rufino do Vale [/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]The Chamber of Deputies has established a commission of jurists to prepare a draft bill of legislation that systematizes the rules of Brazilian constitutional procedure [1] . The act of creation is justified by the need for consolidation, systematization, and harmonization of the rules governing the process and judgment of actions for abstract control of constitutionality, constitutional claims, writs of mandamus, habeas data, writs of injunction, and extraordinary appeals, updating them with the jurisprudence of the Supreme Federal Court. Jurists who have participated in this Constitutional Observatory for many years also compose the aforementioned commission, such as its illustrious president, Professor and Minister of the STF Gilmar Ferreira Mendes, in addition to great constitutionalists such as Ingo Sarlet (rapporteur of the commission) and Lenio Streck, as well as colleagues Georges Abboud, Rodrigo Mudrovitsch, and Victor Fernandes.
The Observatory will therefore closely monitor the work of this important commission and, for that reason, I intend to offer some suggestions here from the outset (I will not be exhaustive), taking into account the limitations of this column space.
The Brazilian constitutional process is characterized — and thus distinguishes itself from models in Comparative Law — by the quantity, diversity, and originality of constitutional actions aimed at guaranteeing rights and protecting the Constitution. Unlike models found in other countries, the Brazilian system does not reserve the function of protecting fundamental rights to a single type of action or appeal. Different constitutional actions are geared towards this objective, each with its own specificity, mainly the writ of mandamus — a genuine creation of the Brazilian constitutional system, inspired by the Mexican juicio de amparo, as I have already explained in this same column [2] — habeas corpus, habeas data, writ of injunction, public civil action, and popular action. This diversity of constitutional actions inherent to the diffuse model is further complemented by a variety of instruments aimed at exercising abstract control of constitutionality by the STF, such as the direct action of unconstitutionality, the direct action of unconstitutionality by omission, the declaratory action of constitutionality, and the argument of non-compliance with a fundamental precept.
Perhaps the Brazilian system did not need so many actions to safeguard rights and protect the constitutional order with due effectiveness. In countries that also adopt mixed systems of constitutional review, a specific (and reduced) set of constitutional writs and actions or appeals for abstract review demonstrates that it is unnecessary to have a distinct procedural instrument for each right that one wishes to guarantee, as well as an action for each type of request and/or cause of action within the scope of abstract review. In most Latin countries, for example, the exclusivity of the juicio and the recurso de amparo (civil or criminal) is observed, in addition to few acciones de control de constitucionalidad [3].
In Brazil, at least with regard to the abstract control of norms, it is observed that a system that has this quantity and diversity of actions ends up needing, in order to function with some effectiveness, standardization of procedural rites and decision techniques. Proof of this is that, since its initial normative conformation, especially in the 1990s (especially Laws No. 9.868 and 9.882, of 1999), the direct action of unconstitutionality (ADI) and the declaratory action of constitutionality (ADC) have been treated by doctrine as having a dual or ambivalent character, which makes them, practically, the same action “with the sign reversed” [4] . And, subsequently, the STF itself ended up having to admit that between direct actions of unconstitutionality by action (ADI) and by omission (ADO) there must be procedural fungibility [5] , which is also applied in the relationship between the direct action of unconstitutionality (ADI) and the argument of non-compliance with a fundamental precept (ADPF), in view of the subsidiary relationship between these actions [6].
Thus, if the intention at this time is not to develop proposals to reform the constitutional text in order to simplify the list of actions for abstract review of constitutionality, the legislative systematization of procedures and decision-making techniques is currently fundamental. It is on this aspect that the Commission needs to focus most carefully, even in light of the need to update the procedures of existing actions in accordance with the jurisprudence of the Supreme Federal Court.
Systematization and standardization do not mean the disregard for the specificities of each action, taking into account the distinct types of requests and grounds for each one. An effort at consolidation and standardization, while maintaining some specific procedures, was fully possible when we drafted the bill on the direct action of unconstitutionality by omission, which became, without any modification of our original text, Law No. 12.063, of October 22, 2009, which included Chapter II-A in Law No. 9.868/99. I had the opportunity to participate in the drafting of that text and thus I can affirm that, for example, the wording of articles 12-E and 12-H, §2°, aimed to provide the necessary systematization of the specific procedures of the direct action of unconstitutionality by omission (ADO) with the procedures and decision techniques of the direct action of unconstitutionality (ADI). This systematization is well explained in an article I published in this ConJur at the time that law came into effect [7].
In the field of precautionary measures, the fungibility of procedural rites, or even of decision-making techniques, is an undeniable practical necessity. The Supreme Court, for example, has long adopted, for the precautionary measure in ADPF that determines the suspension of judicial proceedings involving the application of the challenged law, the 180-day period for the final judgment on the merits of the action, provided for in the ADC (article 21, sole paragraph, of Law 9.868/99). The STF has also agreed to apply, by analogy, the procedure of article 12 of Law 9.868/99, which governs the ADI, to the ADPF, which is subject to the procedure established in Law 9.882/99 [8].
In the case of precautionary measures, it should be noted that the commission will also have the opportunity to propose normative solutions to the current problem of preliminary injunctions decided in a monocratic manner, especially in direct actions of unconstitutionality. Since 2012, including in articles published in this ConJur [9] , I have strongly asserted that these monocratic precautionary measures are generally illegal, due to violation of Law 9.868/99 (article 10), and unconstitutional, due to affront to article 97 of the Constitution. In more recent studies, I have also been asserting that, in addition to the patent illegality and evident unconstitutionality, the practice of monocratic precautionary decisions in the abstract control of constitutionality constitutes a complete transgression of one of the fundamental components of the deliberation of a constitutional court: collegiality [10].
The always highly exceptional circumstances for the unilateral granting of precautionary measures in abstract constitutional review must be clearly delimited and normatively defined. The current situation demands this, and therefore it is necessary to regulate the use of the general power of precaution by the rapporteur in abstract review actions. As I have stated on other occasions, this is an imperative that stems from the very functional division of powers. And, in this context, it could be proposed to completely repeal or substantially alter the wording of the current §1 of Article 5 of Law 9.882/99, which has been used, including by analogy, for the unilateral granting of preliminary injunctions in abstract review actions.
Still within the context of precautionary procedures, the commission may also face what we have previously called the phenomenon of the “ordinarization” of the procedure of article 12 of Law No. 9.868/99, a clear distortion of its primary purpose [11] . As is known, the teleology of article 12 is to allow the court to make a final judgment on the merits in a swift manner. Its application, therefore, must be conditioned on the effective fulfillment of this purpose required by the rule. However, in practice, due to a series of factors that we analyzed in more depth in another work [12] , the instruction of the case files according to article 12 commonly takes the same amount of time as the processing through the ordinary procedure. It is then pertinent to question, given the permanent situation of excessive cases on the docket of the STF Plenary, how could the procedure of article 12 be rethought? What normative solutions could provide the court with the institutional capacity for a swift final judgment?
Given the proposal to rethink the procedure of article 12 of Law No. 9.868/99, what is needed at this moment is to work with different alternative precautionary procedures, which allow the court to act swiftly in urgent cases, including the final judgment on the merits, an objective always pursued when the special procedure of article 12 was instituted. In this respect, it is currently necessary to provide for the possibility of converting the judgment of a precautionary measure into a final judgment on the merits, which the court itself has already admitted for some cases [13] . As practice has shown, under certain circumstances, this conversion of the judgment becomes inevitable.
In addition to addressing precautionary procedures, the commission will also have the opportunity to work on systematizing the different decision-making techniques in the control of constitutionality, which have undergone several adaptations by the Supreme Federal Court (STF) in the last decade. Some advances observed in jurisprudence have already been duly incorporated into some more recent laws, such as the Mandamus Law (Law No. 13.300 of 2016) and the Law on Direct Action of Unconstitutionality by Omission (Law No. 12.063 of 2009), which have provided important improvements in decision-making techniques for controlling unconstitutional legislative omission (total and partial). These distinct and innovative decision-making techniques now need to be further systematized, given their potential for application in all abstract review actions.
An important topic in this respect concerns the necessary normative distinction between the techniques of interpretation in accordance with the Constitution and the declaration of unconstitutionality without reduction of text, whose clear differentiation, which has long been established in theory [14] and suggested in the provision of article 28, sole paragraph, of Law No. 9.868/99, has not yet been adequately absorbed by the jurisprudence of the STF. This is another important point for the commission to analyze, which may evaluate, in the field of the theoretical distinction between text and norm, the possibilities of typifying differentiated techniques of additive or substitutive interpretative decisions, widely recognized in Comparative Law [15] and already adopted by the STF itself in some cases.
Regarding the constitutional actions of the subjective process, there are also several interesting proposals for its improvement, but which cannot be presented here due to the space limitations of this column. In any case, I cannot fail to take this opportunity to point out an important aspect of the injunction action process, which ended up being left out of the final text of Law No. 13.300/2016. Although we made proposals in this regard at the time [16] , the Injunction Law did not provide for procedures and decision-making techniques for granting preliminary injunctions, based on old STF jurisprudence. Nevertheless, the legal provision for preliminary injunctions in injunctions is something that, in the current development of STF jurisprudence and legislation on unconstitutional omission (especially Law 12.063/2009), should be the subject of consideration by the commission.
Finally, these are just a few suggestions for the necessary reform of the Brazilian constitutional process. It is now hoped that the new presidency of the Chamber of Deputies (2021/2022 term) will maintain the work of the commission of jurists and provide the institutional conditions for its full development.