Ministério Público na defesa dos interesses metaindividuais : a interpretação conforme a Constituição do parágrafo único, do artigo 1°, da Lei da Ação Civil Pública

Abstract

The Public Prosecutor's Office is the main institution for the defense of collective interests, and its main instrument is the public civil action. Law 7.347 of 1985, together with the Consumer Defense Code, is the main instrument for establishing collective protection in Brazil. The implementation of collective litigation faces the difficulties of a civil process geared towards individual claims and the restrictions imposed by the state on the effectiveness of collective litigation. The prohibition under study was introduced into the Public Civil Action Law by Provisional Measure No. 2.180-35 of 2001, including a ban on the use of the procedural diploma in matters of state interest, such as tax law and compulsory membership funds, on the grounds of individual ownership of the rights being discussed. In this sense, the jurisprudence of the Higher Courts has used article 127 of the Federal Constitution to legitimize the entry of the Public Prosecutor's Office in public civil actions that deal with homogeneous individual rights. This provision assigns the role of "defender of collective interests" to the Public Prosecutor's Office. The object of this study is the use of the extensive interpretation of the aforementioned provision by the Federal Supreme Court and its consequences for the effective protection of meta-individual rights through public civil action.The panorama used for the study is neoconstitutionalism, and a bibliographical reviewof articles and books was used to investigate its main characteristics, namely the presence of a rigid Constitution, the Supremacy of the Constitution, the normative force of the Constitution and the deepening of the role of the law enforcer, in order to concretize the normed precepts. The investigation focuses on the development of the Public Prosecutor's Office as an institution that defends social interests in Brazil's democratic history, with its consolidation in the 1988 Federal Constitution. The concept of the social relevance of a claim was the basis for the legitimization of the defense of individual collective interests by the Public Prosecutor's Office, a thesis especially developed in Extraordinary Appeal No. 631111/SP. The expansion of the extensive interpretation of the rule contained in article 127 of the Federal Constitution reverberated in infra-constitutional legislation, as the basis for the Public Prosecutor's Office to defend public civil actions on the subject of the FGTS, expressly prohibited by the sole paragraph of article 1 of the Public Civil Action Law. The meaning given by the Supreme Court, in Theme 850/STF, to the restrictive provision has the air of interpretation in accordance with the constitution, refusing to declare unconstitutional the rule introduced by provisional measure 2.180-35, which limits the collective protection of rights. The analysis of the issue in relation to the application of the technique of interpretation in accordance with the constitution, the use of it in the wrong way, stripping it of its grammatical meaning and disrespecting the intentions of the legislator of the rule. In this respect, the expulsion of the rule introduced by Provisional Measure 2.180-35 would be more coherent in the legal system than the use of argumentative juggling.