O advento da constituição federal de 1988 e a inconstitucionalidade superveviente do artigo 791 da consolidação das leis trabalhistas

Abstract

In 1943, it comes to fire the Consolidation of the Laws of the Work, that he/she brings in his/her salience the legal authorization so that the own parts can, for themselves, without the lawyers' attendance and being been worth, for so much, of the "right postulandi" there foreseen in the art. 791 of the referred diploma, judicially to sponsor their interests in the extent of the Justice of the Work, organism that counted, up to 1999, in his/her composition, with the judges lay and temporary class representative, employees' representatives and of employers. In spite of the norms to regulate of the exercise of the legal profession in Brazil spare not the lawyer's performance in you participate in them of labor nature, "the right postulandi" that he/she treats the art. 791 of CLT, that it was not, up to now, I object of specific and direct constitutionality control on the part of Federal Supreme court, it has been applied until today, even after having promulgated the Federal Constitution of 5.10.1988, since the validity of that consolidated norm was reaffirmed expressly by SÚMULA 329 of the Superior Tribunal of the Work, obstructive Art. 133 of CF/88 to establish the lawyer's indispensable in the administration of the justice. Advent of CF/88, however, in our conception, it crystallized the unconstitutionality supervenient of the referred device celetista, so much because the lawyer passed to be considered as essential part to the operation of the organism destined to the administration of Justice (art. 133 of CF/88), as because the Fundamental Law of 1988 erected to the right (preceito category) fundamental, the access (qualified) to the jurisdiction (Art. 5th, Inc. LV) and the warranty that the State would render integral and free juridical attendance to the persons in need, as foreseen in the interruption LXXIV of the referred art. 5th of the Charter, that also imposed, in the same line of logic consequence, to the State, the duty of organizing Public Defender of Union (art. 134 and paragraphs of CF/88), I score through which that integral and free juridical attendance to the needed (CF/88, Art. 5th, Inc. LXXIV) it should be made available. The qualified access is been to the jurisdiction (CF/88, art. 5th, Inc. LV) and if the duty of rendering juridical attendance to the needed (CF/88, art. 5th, Inc. LXXIV) they are fundamental precepts, it is figured obvious that all the other constitutional dispositions the they (a those precepts) you correlate, besides the one of the art. 133 of CF/88, they only exist for the end of exactly to carry through (to materialize) and of giving normative density the those same precepts. Beside that, be considered that the extinction of the representation paritária, imposed by the Amendment Constitutional no. 24/99, that it excluded her definitively of the structure of the integral organs of the Justice of the Work, it demolished, hopelessly, the argument of the ones that understood that being the justice laboral integrated by lay judges, in her they could postulate the own parts without the lawyers' intervention, besides because each one of those representatives class of the categories that you/they are fought in the context of the labor conflict, raised to the judges' condition no judges, would act in the defense of the interests of the members of those respective classes of workers and of employers. Obstructive, the Direct Action of Unconstitutionality of no. 1.127-8(DF), proposed by the Association of the Magistrates Brazilian-AMB against devices of the current Statute of OAB(Lei no. 8.906/94) the being came considered, in 17.05.2006, for the Supreme Tribunal Federal-STF, as reasonable partly, staying, in face of that, the "right postulandi" of the parts in the extent of the Justice of the Work, in spite of this, already since 09.12.1999, for force of the Amendment Constitutional no. 24/99, no more to count, in his/her composition, with lay judges and temporary representatives of employees and of employers. Being like this, like Art. 791 of right positive CLT daile pay-constitutional whose applicability, expressly reaffirmed by SÚMULA of TST, it finishes for to try the instant noncompliance of precepts inserted basic (over all them in the interruptions LV and LXXIV of the art. 5th of the Charter of 1988), only the Oral test of Noncompliance of Precept Fundamental-ADPF, in the terms of the foreseen in the Law no. 9.882, of 3.12.1999, is figured to be the appropriate mechanism to obtain, of part of STF, the formal declaration of that unconstitutionality, with the consequent and definitive purges of the art. 791 of CLT of the national juridical order, what will compete, for right, for to final observance and integral effectiveness of the fastened fundamental precepts, preponderantly, in the interruptions LV and LXXIV of the art. 5th of the Letter of the Republic.