A CONSTITUTIONAL MUTATION AS A SOCIAL PHENOMENON VS. ITS APPLICATION BY BRAZILIAN SUPREME COURT

A CRITIQUE TO THE DEFENSE OF EXPANDING GENERAL BINDING EFFECTS TO CONCRETE JUDICIAL REVIEW

Abstract

Academic and jurisprudential discussions about the phenomenon of constitutional mutation are increasingly in evidence in the Brazilian legal scenario. Nevertheless, considering, through a literary review, the context of the emergence of the category, it is perceived that the theme has been incorporated by Brazilian jurisprudence, especially by the Supreme Federal Court, in a mistaken way, so that there is an expansion of the powers of the Justices of the Court, which have become true political actors with an interest in making decisions that observe social-political conveniences. The longing of Justices of the Court to expand their powers through the phenomenon of constitutional mutation can be verified through the supposed mutation that occurred in art. 52, item X, of the Federal Constitution. This paper criticizes how the phenomenon of constitutional mutation was incorporated by Brazilian law, in addition to bringing warnings about the alteration of the meaning of constitutional norms by a Power that is not even a derived constituent and may lead to serious violations of constitutional precepts. The processes of informal amendment of the constitutional text should be used in an exceptional and complementary way, in addition to living together – although not mistaken by – with the formal processes of constitutional revision, given that only the review process is not sufficient to maintain the normative force of the Constitution and adapt it to social reality. Thus, it is suggested that a hermeneutic stance be adopted in which the updating of the constitutional should not abandon the principles that underlie Democratic Rule of Law.

Keywords: Constitutional mutation. Supreme Court. Social reality.