Declaración de inconstitucionalidad, modulación de efectos y buena fe del Estado en Brasil

Abstract

This article presents a study about prospective rulings in the judicial review by the Federal Supreme Court of Brazil, under the provisions of the Law 9868/99. Such statute enabled the Constitutional Court to, under certain circumstances, validate the effects produced by unconstitutional laws. The research is based on doctrine, legislation and jurisprudential review and aims at: a) demonstrating that the nature of unconstitutionality (nullity or annulability) does not prevent the recognition of the effects from unconstitutional laws as valid, even in the judicial review systems where the nullity of the unconstitutional dogma is adopted; b) proposing that the prospective rulings should be addressed through an interpretative theory centered on the fundamental rights and human dignity protection, and c) responding, based on the good faith principle, if Governments should or not benefit from the validation of effects produced by unconstitutional laws when they have damaged fundamental rights, such as freedom and property.