A substancial inconstitucionalidade da emenda constitucional da reeleição (emenda constitucional n. 16, de 04/06/1997)

• Ano de defesa: 2007
• Autor(a) principal: Torelly, Paulo Peretti
• Orientador(a): Sarlet, Ingo Wolfgang
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica do Rio Grande do Sul; Porto Alegre
• Palavras-chave em Português: DIREITO CONSTITUCIONAL; PRINCÍPIOS CONSTITUCIONAIS - BRASIL; INCONSTITUCIONALIDADE - DIREITO - BRASIL; NORMAS CONSTITUCIONAIS; IGUALDADE
• Link de acesso: http://hdl.handle.net/10923/2466

This text deals with the threat to the constitutional principles of equity and of the republic caused by the 16th Constitutional Amendment of 1997, which introduced the institution of reelection for the president, governors and prefects in the Brazilian constitutional system. The functions of the constitution in the legitimation and control of the sphere of power within the rule of law are analyzed, where responsibility for constitutional control in terms of constitutional unity is placed. The pertinence of the so-called constitutional unconstitutional law and the jurisprudence of the Federal Supreme Court in this matter, as well as the Constituent Power in its diverse manifestations, are examined using the current Theory of the Constitution and the earlier argument brought up in the Republic of Weimar (1919-1933). The role of the constitution in the democratic order, political cohesion and integration in the nation and the limits of its power to reform are analyzed, taking into consideration certain historical, sociological and philosophical aspects for the understanding of the republic as a constitutional principle. The essential core of this principle in the Brazilian constitutional order and the proportionality are examined in terms of the Brazilian institutional republican system and the principle of the legitimacy of the constitution and the spheres of power that are created by them. The legal incongruences in the 16th Constitutional Amendment of 1997 are explicit and suggest two solutions for the unconstitutionality that was created by this act of reformation, which is of a political and essentially legal nature.