O “SUPREMO CONGRESSO NACIONAL”: A RUPTURA DA SEPARAÇÃO DE PODERES NOS §§ 4º E 5º DA PEC 28/24

Abstract

The monograph conducts a constitutional analysis of §§ 4 and 5 of Proposed Constitutional Amendment No. 28/24, which add provisions to Article 102 of the 1988 Constitution of the Federative Republic of Brazil (CRFB/88), with a special focus on the principle of separation of powers enshrined in the Constitution. The main objective of the study was to verify whether §§ 4 and 5 of Proposed Constitutional Amendment No. 28/24 violate the constitutional principle of separation of powers. An inductive appro ach was adopted, through bibliographic research and qualitative documentary analysis, with emphasis on constitutional interpretation and on doctrinal, normative, and jurisprudential review. To achieve this objective, the study is structured into three specific stages. The first stage addresses the philosophical and legal foundations of the theory of separation of powers, based on the views of classical authors—from Antiquity to the Enlightenment—as well as on contemporary perspectives, distortions, and criticisms of this principle, notably highlighting the phenomenon of backlash and the judicialization of politics. The second stage investigates the historical evolution of the separation of powers in Brazilian constitutionalism, from the 1824 Imperial Constitution to the 1988 Constitution, emphasizing the institutional strengthening of the Supreme Federal Court in the context of redemocratization. At this point, the study seeks to outline the origin of the current institutional crisis between the Judiciary and the Legislature, which led to the introduction of the proposed amendment. The third stage focuses on comparing §§ 4 and 5 of PEC No. 28/24, which grant the National Congress the prerogative to suspend decisions by the Supreme Federal Court that introduce new legal interpretations with general and abstract effects, in light of the constitutional prin ciple of separation of powers, with the aim of verifying their constitutionality. It is also examined whether fundamental principles of the judicial function—such as constitutional supremacy, due process, access to justice, the reasonable duration of procee dings, and the “right to be wrong last” (all of which safeguard the independence of the Judiciary and are essential for the effective separation of powers)—are violated. Fi nally, the study examines the feasibility of using the Writ of Mandamus (MS) as an exceptional preventive instrument for constitutional review, capable of suspending the legislative proposal, as well as the Direct Action of Unconstitutionality (ADI) as a repressive mechanism for concentrated constitutional review, should the amendment be promulgated.