JUDICIAL AND POLITICAL CONSEQUENCES OF STATUTORY VIOLATIONS DUE TO OMISSION

Abstract

The promulgation of the 1988 Constitution brought considerable changes to the country's political and legal context, such as the establishment of a Democratic State of Law and the supremacy of the constitutional document. In this sense, we observe the Constituent Power's option to leave certain matters for future regulation, making the binding effect of rules of limited effectiveness, edited by the legislature, when there is a command in CF/88. However, the failure to issue these regulations results in the occurrence of unconstitutionalities by omission, with their effects being the main issue to be studied in this research. In this way, the phenomena of “judicialization” and “judicial activism” are confused with each other, as they have similar premises, but only in the latter is it observed that the judiciary takes the initiative to regulate rights that lack a standard. Therefore, the present work seeks to expose the motivations for the inertia of the Legislative Power in relation to certain themes and, in light of this, the measures adopted by the Judiciary to fill such gaps. Furthermore, it is crystal clear that the legislative omission of established rights due to rules of limited effectiveness, it results in a scenario in which the Judiciary accepts the responsibility of protecting them with acts that are not even within its jurisdiction. It is in this sense, therefore, that it is important to explain the consequences of the inertia of the Legislative Branch, in order to understand its legal and political effects.