El nuevo régimen jurídico de la ação de inconstitucionalidade por omissão: La Ley brasileña n.º 12.063, de 27 de octubre de 2009

Abstract

In Brazil, the direct action for unconstitutionality by omission is intended to put an end to a long-standing invalidation of constitutional provisions (especially regarding rights and freedoms) due to a systematic failure of the legislator to act. It is an autonomous procedural that can lead into procedures for controlling constitutionality of the normative omissions. Its object is the omission of a normative act by the public power and not just of the legislative power (as in Portugal) that undermines the full efficacy of the constitution. The Act No. 12.063, October 2009, for the first time ever, regulates this action, which previously, insofar as applicable, was subject to the Act No. 9.868, regulating the direct action of unconstitutionality. Its most controversial provisions has to do with the power it grants the Supreme Federal Court to adopt cautionary measures, in exceptional cases, which, in the hypothesis of a partial omission, may entail the suspension of the application of the law or of the normative act or even suspending court proceedings at administrative proceedings already under way. We think that this does not appear compatible with the nature and the finality of this action. The Act also establishes the possibility of the Court extending the 30-day period that the Constitution establishes for the administrative body that has caused delay to proclaim the omitted act. Although the Constitution does not envisages any eadline for cases in which the legislative has caused the delay, the Supreme Federal Court, moving away from lex superior, passed a ruling in May 2007, in which it abandoned its traditional jurisprudence, and established a period of 18 months for the gislative to approve the law whose omission was declared unconstitutional.