O PROCESSO COMO GARANTIA E A IDEIA DE UM CÓDIGO DE PROCESSO CONSTITUCIONAL: UM LIMITE À CATIMBA?

Abstract

This article uses Rubens Glezer’s diagnosis about the Brazilian Supreme Court (STF) behavior in the last years, especially his view of constitutional hardball. As pre-legislative conversation started about the construction of a text of a Constitutional Procedure Code, this work analyzes the concept of procedure as guarantee and offers, as a limit to constitutional hardball, the suggestion of bringing the text of this new law closer to the constitutional assertion of procedure as a guarantee to parties, overcoming the notion of procedure as an instrument. The concern with establishing limits to onstitutional hardball is a result of the strengthening of the Brazilian Supreme Court and the need to grant this important jurisdictional body the legitimacy for the activity that it is responsible for in the distribution of state functions, notably due to the attacks it has been suffering the court in recent times and which ultimately undermine the country's sense of democracy. It is not possible to consider a procedural code that implies an increase in the scope of discretion of the STF's jurisdictional power. This is because the establishment of these limits will serve to return to the court the democratic legitimacy it needs to survive and, with it, make the Democratic Rule of Law survive. In a hostile political environment such as the one currently present in Brazil, the existence of a constitutional court that holds democratic legitimacy is fundamental and, for this, it is necessary to adopt a series of measures, among them, the understanding that the process does not serve the jurisdictional power but rather that the latter is definitely limited by the former. The research method used was deductive, starting from the dialogue with the notions of onstitutional hardball by Rubens Glezer, going through the discussion on the idea of ​​process as a guarantee, in contrast to the instrumentalist theory of the process, which is predominant in Brazil, to that it could be concluded that understanding the process as a guarantee is the first step towards the elaboration of a Code of Constitutional Procedure that, in fact, establishes clear limits to the activity of the Brazilian Supreme Court. Bibliographic and documentary research was carried out.