Constitutionality control in the Courts of Accounts

the Supreme Court jurisprudence analyzed from the perspective of the principle of juridicity

Abstract

BACKGROUND: The Federal Supreme Court (STF) has been signaling a possible overcoming of the well-known Precedent no. 347, according to which "the Audit Court, in the exercise of its attributions, may assess the constitutionality of laws and acts of the Public Authorities". Some Justices have already made it clear that, in light of the 1988 Constitution, the time has come to change this understanding, forged under the previous constitutional regime.
OBJECTIVE: The purpose of this paper is to evaluate the arguments that have been brought to light at the STF by its traditional jurisprudence and also by those who now defend the inapplicability of the aforementioned Precedent in light of the theoretical conception that submits the Public Administration to the principle of legality, in order to ascertain whether the TCs, when exercising the oversight that is incumbent upon them, should also be guided by an analysis of the constitutionality of the acts under consideration.
MATERIAL AND METHODOLOGY: In the first stage of the investigation the inductive method and documentary research were adopted, based on the examination of several judgments of the STF on the theme. The final stage of the investigation consisted of a qualitative analysis of the arguments conveyed by the Supreme Court, using the deductive method. Based on a literature review, the outline of the theoretical conception that defends the necessary compatibility of administrative acts with the principle of legality was outlined.
RESULTS: It is possible to state that most of the justices agree with the possibility that administrative agencies, when exercising control over administrative acts, may not apply a law deemed unconstitutional, the Constitution prevailing in the concrete case. There is some disagreement as to whether this position is effectively a (diffuse) control of constitutionality. The principles of legality (in the sense of legality), economy and legitimacy are general constitutional parameters of control. There is support in the constitutional text for the thesis that the control attributed to the TCs cannot be reduced to a judgment of strict legality.
CONCLUSIONS: After analyzing the judgments of the STF on the subject in light of the principle of legality, it is possible to conclude that there are no arguments that would justify overruling Precedent no. 347 of the STF, especially because it is not attributed to a body outside the Judiciary the possibility of performing a constitutionality control that includes a formal declaration of incompatibility of the rule with the constitutional text. Strictly speaking, the Audit Courts are only guaranteed the possibility of enforcing the Constitution when, in a concrete case, the law that would be applicable directly violates the constitutional text. Prohibiting this activity would lead to the subversion of the logic of the hierarchy of norms in the legal system, favoring a strict legality to the detriment of the normative force and supremacy of constitutional norms.