A atuação do poder executivo na edição de medidas provisórias : uma análise crítica na perspectiva da separação de poderes.

Abstract

This study aims to investigate the possible abuse of the power of legislating by the head of the Federal Executive through the edition of provisional measures in Brazil after the Federal Constitution of 1988. The theme addressed is directly linked to the actual political/legal context, as well as to the exercise of typical and atypical functions by each of the Powers of the Republic and the (un)balance between them, focusing on the complex arrangement that is the separation of Powers in Brazil and the edition of provisional measures and the flaws in the performance of their political and social control. The study starts from the following problem: can the provisional measures, in the Brazilian actual context, configure an abuse of the President of the Republic's legislating power, forcing a legislative process that disregards the perspective of democratic dialogue? To answer it, the deductive approach method was used, that is, we started from the general to the specific one, and the bibliographic research technique. The first chapter was intended to examine the historical origins and the new conception of the separation of powers and functions in Brazil, as well as the constant tension and current mismatch between the Powers. In the second chapter, we sought to understand the legislative process of editing a provisional measure in Brazil, studying the phases of the legislative process in the 1988 Constitution, the legislative species and their peculiarities and, finally, the history of the instrument of the provisional measure, from its authoritarian origin to the attempt at constitutional limitation. In the third chapter, in order to analyze the excess of provisional measures edited and the mismatch in the performance of the Powers in their political and judicial control, the requirements of the provisional measure, the relevance and urgency in the perception of the National Congress, the relation of the provisional measure with the inversion of the Legislative guidelines and the historical abuse of the power to edit provisional measures in the country and its democratic deficits. From the study of the proposed theme, guided by the outlined objectives, it was verified that the Principle of Separation of Powers and functions, the provisional measure and democracy are closely linked, considering that the abuse of the second hurts both the first and the last, directly reaching the balance that must be maintained by the State, as well as that in the current Brazilian context, especially in the current government, provisional measures may constitute an abuse of the President's power to legislate, forcing a legislative process that disregards the perspective democratic dialogue.