| dc.description.abstract | The idea of supremacy of the Constitution brings inculcated the necessity of
performing a law control, reason why two major systems have been created, the one
performed by diffuse/incidental pathway, originating in the United States, and the
concentrated system, originated in Austria. The Austrian system, developed by the
jurist Hans Kelsen in the early twentieth century, assigned the guard of the
Constitution to a Constitutional Court parallel to the Judiciary Power, with exclusive
jurisdiction to annul the laws incompatible with the Constitution. After World War II,
this system has spread Europe apart, parallel to the phenomenon of
constitutionalism. However, it was assigned to the Judiciary the competence to
perform the abstract law control, as well as new instruments of interpretation were
created, such as, for example, a conforming interpretation. In Brazil, the concentrated
system was adopted by the Constitutional Amendment No. 16 of 1965, which created
the institute of Representation of Inconstitutionality, under the exclusive jurisdiction of
the General Attorney of the Republic. In the Federal Constitution of 1988, this
mechanism has been enhanced, transforming itself in the Unconstitutionaly Direct
Action, whose list of legitimated was expanded. Beside this, new law control tools
were created, such as the Declaratory Action of Constitutionality, Direct Action by
Omission and the accusation of breach of fundamental precept. Therefore, the
actions that pugnavam the constitutionality of laws greatly increased after the advent
of the new Constitution, which altered the institutional role of the Supreme Court. In
this context, arises the Proposed Constitutional Amendment No. 33 of 2011 with the
main goal of restoring the balance between the Powers. Among the proposed
changes, the PEC 33/2011 aims to remove from the Praetorium Exalted the
exclusivity of law control, subjecting the decisions of merit given by the Supreme
Court that consider the Constitutional Amendments uncontitucionals to the National
Congress and, secondarily, to the population. Thus, this study aims to analyze the
constitutionality of this proposal in the actual juncture of law control established by
the legal system. | |
