Controle de constitucionalidade na via administrativa ante o princípio da legalidade e a questão da reserva de jurisdição

Abstract

The Public Administration performs and registers its internal and external acts, regardless of the litigation, where it is necessary to observe, among other criteria, attendance to readability and public interest. The question that arises from this perspective is if it would be legally possible for a Public Administrator, while performing and administrative act or a final administrative decision, to let a certain law be applied because he consider it unconstitutional, contrary to explicit and implicit precepts, or if the constitutionality control accomplishment would be restricted to the Judiciary. In summary, the intention of this work is to analyze whether the Administration would only have to apply the law, even when manifestly unconstitutional, in view of its subjection to strict legality principle, which indicates that the Public Administration can only act in accordance with the law expressly authorizes. It is not contestable that the legal recognition of the constitutionality control in scope of the Administration would have significant consequences in what concerns the speed in outcome of administrative processes, thus avoiding the overload of the Judiciary with repetitive demands. This way, it becomes imperative to pacify the issue in order to better serve the public interest, once the need of distribute the matter is clear, avoiding the adoption of divergent solutions by the Public Administrator, sometimes rejecting the application of some means considered by him as unconstitutional, sometimes declaring himself incompetent to gauge the law’s constitutionality, damaging the unity and coherence of the Brazilian legal system.