Injunction

" Injunction
MS : bill and the creation of new parties - 12
In conclusion , the Full Bench , by majority , denied injunction preventive senator claimed that offense to due process of law in the conduct of the Bill - PL 4.470/2012 ( House of Representatives ) , converted in the Senate , the Bill of chamber - PLC 14/2013 establishing new rules for the distribution of party fund resources and time to canvass on radio and TV , in case of party migration - v . Informational 709 and 710 . Preliminarily , by majority vote , the writ was known , due Ministers Carmen Lucia and Marcus Aurelius .
They considered that the purpose of the filing was prior control of constitutionality of a law, for alleged offense to constitutional principles , which would be inadmissible , as the Court's jurisprudence .
As regards the ordinary legislative procedure , addition, there were the bills only be challenged in the path chosen when and if the observed failure of this procedure regulating devices . Moreover, this form of control would also be permissible in the case of constitutional amendment attempt against the entrenchment clause ( CF , art. 60 , § 4 ) . At the point , the Carmen Lucia Min emphasized that if there was a bill to counteract these clauses , judicial review in an injunction would also be appropriate, although it was not the case .
MS 32033/DF , rel . orig . Justice Gilmar Mendes , red . p / Min Teori Zavascki the judgment ,
06/20/2013 . ( MS - 32033 )
(Informative 711 , Plenum )
MS : bill and the creation of new parties - 13
On merit , prevailed the vote of Min Teori Zavascki . Considered that any
unconstitutionality of the contested text could be resolved if and when the bill became law. Moreover , the discussion about the legitimacy of the constitutional control preventive legislative proposal would have a transcendental , with reflections beyond the case in question , it would touch the heart of the autonomy of Powers . Reputed that the constitutional system would not allow parental control of constitutionality prior normative acts , and that the Court's jurisprudence would be consolidated in order to , as a rule , should be rebuffed judicial proceedings for that purpose . Delimited be two exceptions to this rule : a) proposed amendment to the Constitution manifestly offensive entrenchment clause , and b ) the bill or amendment in the conduct of which it appeared manifest affront to constitutional clause that disciplinasse the corresponding legislative process . She noted that in both cases , the rationale for circumventing the rule would be clearly defined in the case law of the Supreme Court. The vice of unconstitutionality would be directly related to formal and procedural aspects of the legislative action . In these circumstances, the petition would be admissible because security fix seek addiction
effectively implemented , before and regardless of the final approval of the standard.
MS 32033/DF , rel . orig . Justice Gilmar Mendes , red . p / Min Teori Zavascki the judgment ,
06/20/2013 . ( MS - 32033 )
(Informative 711 , Plenum )
MS : bill and the creation of new parties - 14
Pointed out that the case in question would not fit in any of these two exceptional situations , sustained only because the bill would have content inconsistent with Articles 1 , V , and 17 , caput , both the CF . He stressed that the most notorious consequence of granting the order would be possible to universal preventive control of constitutionality , in step with the Constitution and the case law already established . Highlighted the existence of exclusive model control standards , by state organs and institutions enrolled in art. 103 of the Constitution , by its own action . Admitting it would if prevailing understanding diverse jurisdictional control of constitutionality per share material design standard , to be exercised exclusively by parliament. This model does not have control prior similar in comparative law and exceed the constitutional limits of judicial intervention in the formation of laws. Asserted that political discussions in this context , would belong to the legislature and not the judiciary . Stressed the distance that Cortes should have constitutional political processes , including by its inability to resolve by means of action , conflicts of this nature passions loaded . Stressed not make sense , moreover , assign the parliamentary whom the Constitution does not enable him to bring the abstract judicial normative prerogative much more comprehensive and efficient cause of this control over their own legislative bills . Moreover , it would subtract the other Powers the prerogative of exercising constitutional control preventive laws .
MS 32033/DF , rel . orig . Justice Gilmar Mendes , red . p / Min Teori Zavascki the judgment ,
06/20/2013 . ( MS - 32033 )
(Informative 711 , Plenum )
MS : bill and the creation of new parties - 15
The Min Luiz Fux exemplified that if they consider that the PLC 14/2013 should be filed in the medium and long term there would be a series of demands the same kind before the Court. Accordingly , the Supreme Court would act as a sort of third participant rounds of parliamentary and exert typical role of the legislature. The repressive control of constitutionality cede space, then the preventive control . The Justice Marco Aurélio rejected the argument that the legislature would be linked to the effects of the decision in ADI 4430/DF ( judgment pending publication , vol . Informative 672 ) , which would make possible the processing of the bill questioned , although it could have in theory , content " challenging " the previous interpretation of the Supreme Court . Pointed out that the speed in processing the text does not
would violate due process of law . Pointed out that " superinterpretação " of the constitutional text , form of interpretation or illegitimate judicial activism distorted , would such interference in the processing of legislation. Scooped the actors of the due process of law would not be judges , but the people's representatives .
MS 32033/DF , rel . orig . Justice Gilmar Mendes , red . p / Min Teori Zavascki the judgment ,
06/20/2013 . ( MS - 32033 )
(Informative 711 , Plenum )
MS : bill and the creation of new parties - 16
Overdue Ministers Gilmar Mendes , draftsman , Dias Toffoli and Celso de Mello , which granted
partially security , to declare the unconstitutionality of legislative deliberation on the PLC 14/2013 , approved to govern elections that will occur in 2014 . The rapporteur rested the possibility of an injunction be filed to suspend the processing of the bill alleged violator of entrenchment clause . Recorded that the bill under discussion would be offensive to equality , equal chances , proportionality , legal certainty and the freedom to create political parties . Rememorava you want would impose constitutional interpretation diametrically opposed to drawn up and the trial of ADI 4430/DF . The Min Dias Toffoli emphasized the specious project , because majority groups in Parliament would seek to achieve the essence of democratic dispute through important instruments of political debate and election , which would be access to radio and television for free , either by the party program or fund partisan, disciplined by Law 9.096/95 , the rules for the election is contained in Law 9.504/97 . The Justice Celso de Mello consignava the possibility of legal and constitutional oversight of certain acts emanating from the Executive or the Legislature , when allegedly riddled with addiction formal unconstitutionality or material without violating the separation of powers . He claimed that even in their own institutional domain , no state agency could claim to be superior or assumed authority beyond the reach of the Constitution . In this sense , the separation of powers could never be invoked as a principle intended to thwart the resistance to any legal act of state repression or any test of abuse of power and disregard the entrenchment clause . Stressed the Court's jurisprudence in the sense of the possibility of judicial review of political acts . Finally , the Court annulled the injunction previously granted .
MS 32033/DF , rel . orig . Justice Gilmar Mendes , red . p / Min Teori Zavascki the judgment ,
06/20/2013 . ( MS - 32033 )
(Informative 711 , Plenum ) "
Access: 09.09.2013