A inoperância do judiciário perante o mandado de injunção e a ação direta de inconstitucionalidade por omissão

Abstract

The present work consists in the attempt to demonstrate that within the constitutional order in the country, it is perfectly possible for the legitimated to apply to the Judiciary, through the Mandatory of Injunction and Direct Action of Unconstitutionality by Default, to convict the Public Power to which to give solution to this unconstitutionality, and not only declare it, which unfortunately happens in practice, because there is no efficacy in this. In the first chapter, we will characterize the evolution of constitutionality control in history and the unconstitutionality itself, both of commissive acts (action) and omissive acts (omission). We will also speak of the Unconstitutionality Action of Default, an institute so important in the Brazilian legal system, regarding the defense of the integrity of our Fundamental Law, abstractly controlling unconstitutionality by omissive acts to grant full efficacy to constitutional norms. In the following chapter, we will dissect the injunction, another constitutional remedy to remedy omissive unconstitutionality, but because its active legitimacy is so broad (individuals and legal entities), it is a true guarantor of rights, or rather, guarantor of the rule of law itself . Subsequently we will deal with the differences between these two institutes, which are not confused by having different parts, objects and operations. Finally, in the last chapter, a few more jurisprudential examples will be presented indicating the traditional position of magistrates and courts on the subject, as well as a new understanding that slowly begins to appear.