Binding and “erga omnes” effects in Incidental Declaration of Unconstitutionality: constitucional mutation of article 52, X of the Brazilian Constitution
DOI:
https://doi.org/10.12957/publicum.2018.32743Keywords:
Constitucional mutation, Control of constitutionality, Incidental unconstitutionality declaration, Decision effects, Binding and erga omnes effects.Abstract
It is possible informally changes of the constitutional text, that is to say, without literal alteration, a new meaning of the constitutional norm can be extracted in consonance with the whole constitutional system and also with a new reality experienced by society. In the present work, an analysis is made of the possible constitutional mutation of article 52, X of the CRFB/88. At first, we will investigate what constitutional mutation is and whether there are limits to its existence. Next, a study about the effectiveness of decisions in the diffuse control of constitutionality becomes necessary, since art. 52, X, provides that a resolution issued by the Senate is necessary to give binding and erga omnes effects to those decisions. Finally, the analysis of the two important judgments will be made to discuss whether or not there was a mutation, or if it is a constitutional or possibly unconstitutional mutation.
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