A separação dos poderes e o sistema de freio e contrapeso: um olhar sobre a atuação do Poder Judiciário na Constituição Federal de 1988

Abstract

The present study aimed to analyze whether the checks and balances in the Federal Constitution of 1988 ensure the balance between the Executive, Legislative and Judicial Powers. The separation of powers and the mechanisms of checks and balances were conceived with the intention of, in containing the abuse of the holders of the powers, to guarantee the fundamental rights of the individuals. The question that arises in this study is whether the way in which such instruments of mutual control are distributed among the three Powers, in the Federal Constitution of 1988, responds to the current Brazilian reality, in which the Judiciary has been gaining a prominent position. Such assumptions solidified the conclusion that the Judiciary is the Power on which less checks and balances fall than the other Powers. Proposed thus, an imbalance and a preponderance of force in favor of the Judiciary. This position leads us to present means which control can be exercised through existing instruments in the Brazilian legal system, namely, the National Council of Justice, the Right of Petition and Public Opinion (Freedom of Expression). This, therefore, would not be the bannte to effectively contain the action of the Judiciary, since a Constitutional change is pleaded that can provide a true balance between the Executive, Legislative and Judicial Powers.