Separação dos poderes: a (I) legitimidade do controle de constitucionalidade realizado pelo Supremo Tribunal Federal mediante as decisões manipulativas

Abstract

The separation of powers is a fundamental principle of the democratic rule of law. This principle is the result of a great struggle, the purpose of which was, at the outset, to combat absolutism. From the antiquity to the contemporary moment, the separation of powers underwent several modifications, not only by the time factor, but also by the point of view of those who constructed the theme. Another factor that added to the concept of separation was checks and balances (Check and Balances), so that in order to have a balance between the powers, the power controls certain actions of the other powers. It should be noted that, at the time when the separation of powers was consolidating, the judiciary did not constitute autonomous power, nor did it have the ability to control other powers. Subsequently, with judicial review, the judiciary gains, in fact, strength and becomes an autonomous power, with competence to exercise the containment of executive and legislative powers. It can be argued, without a doubt, that the power that has gained the most momentum in recent decades was the judiciary. In this scenario, judicial activism exudes, and, in contrast, judicial selfrestraint. Judicial activism must stick to certain limits, without which this action becomes illegitimate. Self-restraint preaches that the judiciary must use prudence and political deference when in control. The STF, especially since the 1988 Constitution, inaugurated a system of control over other powers in a more incisive way. One reason for this is the very power conferred on it by the Constitution. Over time, the Brazilian constitutional court became, in the Brazilian legal-political scenario, a protagonist. The court has a prominent role in the control of the constitutionality of norms in general, pointing out which normative acts are constitutional or not. It happens that the STF, not only attending to this in the control, comes making manipulative decisions, understood as those that give a new feeling to the norm, a sense that was not foreseen initially by the legislator. With this, the court ends up interfering in the function of legislating, which is dangerous for the democratic principle. Such decisions, in certain cases, call into question the balance existing in the separation of powers. It can not be denied that the exercise of control by the Supreme Court is important for the legal order. But to do so, the court must respect limits, just like the literal text of the norm, which, however, has not been observed. It is observed that, based on a judgment of values and using the phenomenon of pamprincipiologism, the STF legitimates its manipulative decisions, even if they are contrary to the legal text of the norm or the Constitution. Judicial self-restraint is a measure that is imposed, in the current conjuncture, to the Brazilian constitutional court with a view to rebalancing the powers.