Mutações por interpretação constitucional e a prática do Supremo Tribunal Federal: entre possibilidades e limites

Abstract

The constitution, as fundamental law of the State in which it is inserted, has its own characteristics that distinguish it from the other normative acts. These distinctions stem mostly from the need for this document to be, at the same time, stable and malleable, since modern societies are in a constant process of evolution and the constitution and social reality mutually influence each other. The complexity and flow of contemporary societies demand, in this way, that the constitution has mechanisms that allow it to provide the necessary answers to the real demands of the State and to its constant evolution. Throughout constitutional history, in parallel to the formal constitutional reform procedures, constitutional mutations - process of informal changes to the constitution, without the correlative modification of its normative text - have been identified. Although this phenomenon had been first identified as a consequence of the incidence and prevalence of the factual plane over the legal, without the guarantee of constitutional supremacy, it has been modernly related to the constitutional interpretation. From this point of view, in the Brazilian scenario, constitutional mutations have gained increasing prominence, especially since the strengthening of constitutional jurisdiction and the expansion of the powers given to the Supreme Court under the Constitution of 1988. The wide range of powers conferred to that Court and the countless matters that are put up for its consideration have brought wide-ranging discussions about the occurrence of constitutional mutations. However, based on the analysis of the proposals for constitutional mutation of the articles 52, X and 57, §4 of the Constitution, in the scope of the Complaint 4335 and the Direct Unconstitutionality Action 6524, respectively, it is possible to verify that, many times, the occurrence of constitutional mutations is raised as a simple rhetorical argument to justify interpretative changes, without demonstrating the occurrence of an informal process of alteration of the Constitution. Furthermore, the intended mutations often turn out to be unconstitutional, being imperative to the expansion of the discussions about the limits to which constitutional mutations should be subject. Thus, through bibliographical and jurisprudential researches, the aim was to analyze constitutional mutations and its recognition by the Judiciary, notably by the Federal Supreme Court, based on the constitutional interpretation, attempting to compare its use to the foundations of its initial conception, and also to identify possible limitations that may apply.