DISSERTAÇÃO DE MESTRADO - PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO E INSTITUIÇÕES DO SISTEMA DE JUSTIÇA - PPGDIR

URI Permanente para esta coleçãohttps://tedebc-teste.ufma.br/handle/tede/637

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Mutações constitucionais promovidas pelo supremo tribunal federal: Uma análise representativa de julgados de 2016 a 2018
(Universidade Federal do Maranhão, 2020-09-26) REIS, Natália de Jesus Silva; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; SILVA, Lucas Gonçalves da; http://lattes.cnpq.br/1696968535834577; RAMOS, Edith Maria Barbosa; http://lattes.cnpq.br/7085054421011701
Constitutional changes play a fundamental role in the permanence and continuity of the constituent work and greatly influence at the identification of the rule of law with the ideals of a democratic regime. This happens due to its conciliatory task between the grandeurs of stability and dynamics of the constitutional order. Constitutional changes accompany the transformations of reality and society to make the fundamental order compatible with the new generation that intends to legally conform, allowing constitutional rules to be effectively implemented. Precisely because they are mechanisms limited by the provisions of the original constituent power, the constituted powers and their institutions must opt for restricted actions when modifying the Constitution. However, such an objective is not always satisfied and although certain conflicts and tensions between the Powers are natural in the composition of a constitutional democracy the problem lies in the overuse of channels for constitutional change, especially informal ones. The informal changes known as constitutional mutations modify the meaning, sense and scope of the constitutional norm in a way that its linguistic statement remains unchanged. This silent character of constitutional mutations becomes worrisome when the rules of the democratic game are weakened to such an extent that it leads to the non-observance of its limits and the diminishing of the mechanims of control, which opens the way to the subversion of the meaning of constitutional norms. Through their misuse, mutations assume the status of unconstitutional and undermine the text and spirit of the Constitution, increasing any crisis that may have given rise to it. Therefore, the present research aims to analyze the relevance of the constitutional mutations promoted by the Supreme Federal Court, considering the accentuated historic of amendments to the 1988 Constitution and the troubled political-legal scenario Brazil went throught in the period of 2016 to 2018. The methodological approach followed the lines drawn by the method of historical-dialectical materialism, taking into account the analysis of constitutional mutations as an instrument inspired by the transformations of the sociopolitical, economic and cultural basis of reality; with the complementary assistance of the comparative method, which allowed the reconstruction of the historical-conceptual trajectory of the mutations within the German public law and the comparison with the Brazilian context in which it was incorporated. Finally, the analysis of the decisions of the Supreme Federal Court perceived by the Court itself as "constitutional changes" in the interstitium from 2016 to 2018 allowed the examination of the arguments used by its judges towards the institute, the procedural instruments that most often introduced these informal changes and the teoric branch that prevails on the subject.
Princípio da subsidiariedade na jurisprudência do Supremo Tribunal Federal: uma análise dos conflitos de competência entre os entes federativos no período de 1988 a 2022
(Universidade Federal do Maranhão, 2023-03-20) COSTA, Fredson de Sousa; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; LEAL, Fernando Ângelo Ribeiro; http://lattes.cnpq.br/9858226603548264
This research sought to analyze to what extent the Federal Supreme Court applies the principle of subsidiarity as a method of solving conflicts of competence between federative entities. For that, judgments were analyzed in the context of concentrated control of constitutionality within the scope of the STF, in the period from 1988 to 2022, which discussed who had the competence to edit a certain legislative act or to implement a certain public policy. As a method of procedure, Lawrence Bardin's content analysis was used, with the use of the categorical analysis technique, to study the selected judgments, according to the parameters established for the research. Before that, an investigation was carried out on the origin and meaning of the principle of subsidiarity and its application as a method of sharing competences. Afterwards, the presence of the principle of subsidiarity in comparative law was verified, with emphasis on the European Union, Germany, Italy and Portugal. An analysis was carried out of the models of division of competences adopted by Brazil, from the 1891 Constitution to the 1988 Constitution. It was found that, within the scope of Brazilian constitutional law, some scholars defend that the 1988 Constitution incorporated, even if implicitly, the idea of subsidiarity in the division of tasks between the Union, the States, the Federal District and the Municipalities, in the field of common and concurrent competences. Finally, the research found that the STF still does not apply the principle of subsidiarity as a technique for sharing competences, in the sense of favoring local initiatives to the detriment of the central entity. Despite the theme having been raised on several occasions, however, the debate is still incipient.
Os processos estruturantes no âmbito da Jurisdição Constitucional: a construção da decisão adequada por meio do diálogo institucional
(Universidade Federal do Maranhão, 2021-02-23) AROUCHE JUNIOR, Deomar da Assenção; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; RAMOS NETO, Newton Pereira; http://lattes.cnpq.br/2399244462327090; SILVA, Sandoval Alves da; http://lattes.cnpq.br/2744878887909140; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213
This dissertation aims to study the process of the structural litigation on the Constitutional Jurisdiction. It has been analyzed the origins of this category of American law based on the doctrine and concrete cases decided by the Supreme Court of the United States of America. Another cases of the comparative law from countries as Argentina, Colombia, South Africa and India were analyzed. After that, some points as constitutional interpretation, judicial activism, judicial review and topics related to the democratic legitimacy of the Judiciary action were approached. Whereas that in the last decades various structural injunction about inefficiency of the State has been filled on the Supremo Tribunal Federal, it makes necessary a profound analysis of the processing of those actions. For this reason, the present study analyzed the evolution of the techniques of implementation of decisions made in structural injunctions in the comparative law in order to verify the applicability in the Brazilian law. In this sense, it was sought to investigate the mechanisms available in the Brazilian procedural law that can be applied to give more efficiency to structural litigation. In those investigations it was found a tendency to sought a solution to structural litigations through dialogical mechanisms without, however, giving up more intense intervention measures. According the cases decided by the Brazilian Supremo Tribunal Federal, it is almost a consensus about the fact that the measures to effectuate a decision, must be chosen for each case considering their particularities but always looking forward the participation of others players in the construction of the solution.
O Supremo Tribunal Federal e as omissões inconstitucionais do Congresso Nacional: Limites e possibilidades ao estabelecimento de uma racionalidade decisória em sede de Ações Diretas de Inconstitucionalidade por Omissão
(Universidade Federal do Maranhão, 2023-05-05) FERRAZ, Fernanda Carvalho; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; SANTANA, José Cláudio Pavão; http://lattes.cnpq.br/5198686445529109; LOPES, Jaqueline Prazeres de Sena; http://lattes.cnpq.br/0983674249152352
With the growing role of the Judiciary in recent years and the Constitution of the Republic as the center of the Brazilian legal system and normative system, it is necessary to talk about issues such as division of Powers, Judicial Activism, Judicialization of Politics and mainly about Constitutionality Control. In this way, this research aimed to permeate these concepts and analyze the decisions of Direct Actions of Unconstitutionality by Omission in the post 1988 Constitution period, to examine to what extent the understanding of the Federal Court of Justice (STF) has changed, bringing a more activist rationality and logic, in the sense of supplying unconstitutional omissions and protecting fundamental rights. Everything, from the perspective of theoretical references such as Jeremy Waldron, Andrei Marmor and Robert Alexy, who have in common the formulation of theories discussing the importance of interpretation by judges, on judicial review and the legitimacy of the Judiciary to do so. To this end, an inductive methodology was adopted, with a qualitative bias, and using jurisprudence analysis as a methodological procedure, in order to be able to understand the influence of such decisions for the implementation of constitutional norms by the National Congress and whether they are in compliance with art. 103, §2 of the Constitution of the Republic of 1988.

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