INTRODUCTION

The present work will be limited to dealing with subjective and objective actions without distinguishing the actions themselves that are capable of declaring the constitutionality or unconstitutionality of an infra-constitutional law in Brazil; such as, for example, ADIN (Direct Action of Unconstitutionality), ADC (Declaratory Action of Constitutionality), ADPF (Pleading of Non-compliance with Fundamental Precept), etc. - the present work will focus only on article 102, I, letter a of the Federal Constitution of Brazil, to study what we will see below.

We cede the understanding that there is more than one way to achieve the objective pursued in the sense of seeing a Law declared constitutional or unconstitutional before the Federal Supreme Court (STF), or even before the State Courts of Justice (when it comes to seeking the unconstitutionality of a State or Municipal Law that borders the Constitution of a given State) - the declaratory actions of unconstitutionality of the State will not be studied in this paper.

It is not the purpose of the present work to deal with the perspective of whether the chosen route to be declared unconstitutional (nor of the types of unconstitutionality and the requirements for such) or constitutionality of an infra-constitutional Law (not of normative act) is main or lateral/incidental, concentrated or diffuse, abstract or strict³, subjective or objective, individual or collective, route of exception or indirect route, etc⁴.. It is worth saying that these classifications do not have the necessary correspondence in other systems⁵.

Nor will the present study be the object of cases in which the attacked norm has a logical correlation of dependence with another norm or norm that is extremely similar (or article or clause) and, therefore, this similar or dependent norm would also have, or not, its unconstitutionality declared by drag or attraction.

Since this is a very wide-ranging issue, the present study seeks to diagnose, with simplicity, whether at the moment the analysis of the unconstitutionality⁶ of an infra-constitutional Law made by the Federal Supreme Court, which has expanded the cause of action made ex officio by the highest body and guardian of the Federal Constitution, for analysis of that request for a declaration of unconstitutionality, it will be considered immutable and unassailable, after the final and unappealable decision, considering that that particular Law was declared constitutional or unconstitutional.

In other words, the Federal Supreme Court declares that a Law is constitutional (or unconstitutional), taking into consideration that, for example, a lawsuit was filed requesting a declaration of unconstitutionality in accordance with article “x” and “y” of the Brazilian Constitution. In analyzing this request, the STF broadens the cause of action, to declare that not only is the law constitutional in view of the articles observed, but it is also constitutional in view of articles “w” and “z” of the Brazilian Constitution.

Is the Federal Supreme Court, in taking this attitude and extending the right of action for it, in some way, overstating its function? Moreover, is such decision, which has become res judicata, covered by the cloak of the preclusive immutability of the res judicata? Or will it be possible, in the future, to file another lawsuit pleading a declaration of unconstitutionality of that same infra-constitutional law, taking into account other articles of the Federal Constitution not observed in that particular judgment, even though the cause of action has been extended? Or due to the fact that the Federal Supreme Court has extended the right of action, would a new action requesting a declaration of unconstitutionality of that same Law violate the res judicata? Could the Federal Supreme Court, in due course, have extended the cause of action on its own initiative?

The questions above that will be analyzed in the present study, are intended to understand whether the Federal Supreme Court is acting in accordance with constitutional principles and with the guiding principles of civil procedure, in cases in which it extends the cause of ex-officio action in lawsuit that seek to declare the unconstitutionality of an infra-constitutional law.

The Brazilian procedural system and the Federal Constitution are rigid⁷, and cases of revisiting issues that have already been res judicata⁸ are rare and delicate, both from the point of view of legal security and from the point of view of the search for the nomophilacic function that is so much discussed today.

The new Code of Civil Procedure⁹ has ceased to be, to a certain extent, as exclusive as the Brazilian Code of Civil Procedure of 1973¹⁰, but this does not mean that after a final and unappealable decision is rendered, our system easily grants the re-analysis of that case or matter.

The Federal Supreme Court, when expanding the cause of action, observing other articles of the Federal Constitution, in a pleading for a declaration of unconstitutionality of an infra-constitutional law not contained in that first petition, can say that in doing so, it extended such analysis to ALL articles in the Magna Carta and, therefore, future request for a declaration of unconstitutionality of that particular law, would face one of the classic constitutional principles, that is, the res judicata.

On the other hand, if the broadening of the right of action observed other articles and did not properly observe the Brazilian Federal Constitution in its entirety, another action attacking the unconstitutionality of an infra-constitutional Law already declared constitutional in a previous action, but observing other articles of the Brazilian Federal Constitution, would not confront the res judicata, given that the request would be the same, but not the cause of action and, consequently, another action would not be identical and, therefore, would undoubtedly continue.

Finally, we will analyze requests for declarations of unconstitutionality of infra-constitutional rules in objective and subjective actions; with this, we will draw a small panorama about the res judicata “erga omnes” in the case of objective actions (concentrated control of constitutionality) and the res judicata inter parts in the case of subjective actions (diffuse control of constitutionality), and if there is the possibility of having two different judgments (not only in different cases, but with different decisions), based on the same right of action in two different actions, but being one objective and another subjective.

With great clarity and sobriety, the present work will try to elucidate the theme that is extremely arduous and complex; therefore, we will support ourselves both in jurisprudence and doctrine, in an exhaustive way in the search for answers and solutions proposed by the disturbing questions above.

1 CAUSE OF ACTION

Every demand requires a cause of action¹¹. Without it, one of the most important procedural requirements for filing a claim will not be met and the initial claim will contain a defect.

The right of action (near or remote) in action aimed at declaring an infra-constitutional law unconstitutional is precisely the direct or indirect affront that a given law makes to the Federal Constitution, i.e., the basis on which that particular action is brought is one or more articles of the Magna Carta, which have been challenged by a given enacted infra-constitutional law.

“According to careful doctrine, 'causa petendi', is the fact or set of facts likely to produce, by itself, the legal effect intended by the author”¹².

The Federal Constitution is the highest law of our legal system and all other laws enacted in our country can in no way go against what the Federal Constitution says¹³.

In view of this, there may be countless causes for a lawsuit to be declared unconstitutional, i.e., the pleading will always be the same: to see a particular law declared unconstitutional because it has violated the Federal Constitution. But the cause of action may vary according to interpretation, since a certain Law may not confront some articles carved in the Major Law, but it may confront others.

This time, a lawsuit can be decided by understanding that a certain law is constitutional or that it may not have been declared unconstitutional, which for the present work, as can already be seen, is the same thing¹⁴ (this issue will not be analyzed in detail, since it is not the purpose of the present work), but later, for different cause of action, but with the same request, may give rise to a new action, seeking the declaration of that same law as being unconstitutional, but this time, having as right of action, another article that borders the Federal Constitution other than the one analyzed in the first action, but this time, having as a cause of action¹⁵, another article that borders the Federal Constitution that is not the one analyzed in the first action.

Currently, the Federal Supreme Court has relied on the so-called “open cause of action” institute in order to, in light of other articles of the constitution, expand the basis of the ex-officio demand and, therefore, use other constitutional articles to assess whether an infra-constitutional law whose declaration of unconstitutionality is being sought is effectively unconstitutional.

It seems to us that such a manoeuvre is completely possible¹⁶, mainly because it does not leave certain procedural and constitutional principles aside, as is the case with the principle of speed and the principle of onerosity. It is important to point out that every time any homeland court is called upon to pacify social conflict and, consequently, deliver the good of life to the rightful owner, the taxpayer's money is spent in order for this movement of the State machine to occur. If in the future it will be possible to file a new action, pleading the declaration of unconstitutionality of a certain infra-constitutional law, alleging a new cause of action, considering that the action with the same request, but with another right of action has already been judged, it is easy to see that both the time and the money of the Brazilian citizen was misused.

The Federal Supreme Court, by expanding the cause of action in actions of this nature, ends up prioritizing public interests in order to save money and time and, for these reasons, the expansion of the cause of action is very well used in this tuning fork and this understanding, in our opinion, should prevail.

Another but no less important aspect is the fact that an infra-constitutional rule is producing effects on the factual and legal mute and, sometimes, harming the jurisdiction if, later on, this Law is considered unconstitutional. If the Federal Supreme Court had the opportunity to examine a certain issue in light of the Federal Constitution, of course, that for a matter of common sense, and having the opportunity, it should analyze such Law according to other articles of the Federal Constitution that it deems convenient for that particular claim, and which were not part of the cause of action¹⁷ and, therefore, if using the expansion of the right of action (such maneuver is possible also in Germany)¹⁸, brilliantly.

Having passed this point, there is still a doubt: once a lawsuit has been decided and the Federal Supreme Court has broadened the cause of action to see an infra-constitutional law declared unconstitutional, as being constitutional; could one enter at a later date with another lawsuit requesting the same thing with another cause of action? Or due to the fact that the Federal Supreme Court has broadened the cause of action, would the preclusive mantle of the res judicata stabilize and become immutable when it comes to declaring that particular Law as being unconstitutional?

2 THE JUDGED THING

In this topic, what is sought is whether the res judicata^19,20 operates in decisions in which the unconstitutionality of a certain Law has not been declared and that, in this process, the cause of action has been amplified; that is, the cause of action for a certain claim brings as an affront to the infra-constitutional Law articles “w” and “z” of the Federal Constitution. In judging the lawsuit, the Federal Supreme Court broadens the cause of action and analyzes the unconstitutionality of that specific law not only from the standpoint of articles “w” and “z” of the Federal Constitution, but also in accordance with articles “n” and “m” of the Constitution. The decision understands that such infra-constitutional law is not unconstitutional, therefore, constitutional.

In the future, a lawsuit will be filed requesting a declaration of unconstitutionality of the same infra-constitutional law, but now with the claim that this particular law does not violate the articles brought by the lawsuit that already have a res judicata, but brings as a new cause to request claims that such infra-constitutional law violates articles “p” and “j” in the Federal Constitution.

Due to the mere fact that the Federal Supreme Court ruled that this infra-constitutional Law was not unconstitutional, and due to the fact that in the first trial the cause of action was broadened, the second claim could not subsist, given the constitutional principle of the res judicata?

Now, as seen in the previous chapter, changed the cause of request, can enter with new lawsuit²¹. In our understanding, in order for the res judicata to be formed in cases such as the one described above, it would be necessary for the Federal Supreme Court to have analyzed ALL the articles of the Federal Constitution to observe if none of them would face the infra-constitutional law sub judice, which is never done.

As it would be impossible to perform this analysis with all the proceedings filed in this sense, the res judicata only operates with respect to those specific articles contained in that first decision; it is not forbidden to file a new claim having a new cause to request, that is, a cause to request different from that previously used in the pleading whose final and unappealable decision was made, even though the cause to request, ex officio, was expanded by the judges, when analyzing that particular claim.

Just out of curiosity it is worth mentioning that our neighbor Peru, treats the res judicata in a similar way to ours: there must be a final decision, no matter the instance in which this decision occurs and it is necessary that there has been analysis of the substance, that is, that there has been a judgment on the merits²².

With respect to res judicata in the case of an objective and subjective action that fails to declare the unconstitutionality of an infra-constitutional law and its effects, we will deal with it immediately below.

3 SUBJECTIVE DEMANDS

This topic is important because of the aspect that demands that discuss the delivery of a certain good of life, but between private individuals, or between private individuals and public entities (or entities compared to public entities), may also contain a request for the infra-constitutional rule to be declared unconstitutional, but if this occurs, the effect generated by this statement will not be “erga omnes”; the effect generated will be only and only endo-procedural (inter parts).

Here constitutional control is diffuse and not concentrated, as we shall see ahead. This means that a single judge has discretion to control the constitutionality²³ of an infra-constitutional rule and, thus, in that specific sub judice relationship, that particular infra-constitutional law whose declaration of unconstitutionality has been declared cannot be used to pacify that particular concrete case.

“Having done so, the Brazilian Constitution grants the duty of constitutional compatibility analysis of any normative act to all judges in their jurisdictional activities.”²⁴.

The difficulty of the matter lies in the moment when this case is taken to the Federal Supreme Court. The specifics of the issue will remain the same, as narrated above, but the imbroglio would occur if the same Law in this process declared unconstitutional, were under analysis by the same Supreme Court, but in objective action, that is, in concentrated control of constitutionality (generating effectiveness “erga omnes”).

It is important to explain, even briefly, the institute of effectiveness: the effectiveness of a decision (broad sense) is the phenomenon by which that pacifying order or understanding (decision), emanated by the State, is transferred (mirrored) in the factual world, that is, the resolution achieved in the legal world, becomes proficient in the phenomenal world (we are not talking about the effectiveness of the Law set). See that for the present work, it is enough to elucidate the effectiveness of the final decisions, not having the intention of distinguishing the effectiveness as a whole (even from the appealable sentences or the interlocutory decisions), since it does not lend itself to the present work. Therefore, analyzing the etymology of the word preclusion (praecludere), coming from Latin, which means to prevent, close, shut; it is the loss of the parties, and somehow the Judge, the possibility of practicing some act (or repeat this act) procedural. Therefore, with the brief explanation above, we clarify the ideas of the interlocutor so that we can move forward.

Coming back. Could the Federal Supreme Court judge the objective claim in one way and the subjective in another? Could the Federal Supreme Court suspend the subjective action, since if the trial of the objective action had the desired outcome in the subjective action, the effect “erga omnis” would also benefit from the subjective action? How would it look if the objective action were dismissed, thus declaring that the infra-constitutional law is constitutional, but having taken into consideration certain articles of the Federal Constitution, and in the subjective action the articles whose declaration of unconstitutionality of the infra-constitutional law has been searched for is others; could the Federal Supreme Court have judged the subjective action differently? Should the Federal Supreme Court have taken into consideration the articles mentioned in the subjective action before judging it?

In the study made in the present work, not all these answers were found, but below our opinion will be given observing the legal hermeneutics according to the systematic logical process and the sociological logical process.

It seems to us that since the preclusive effectiveness of the res judicata in subjective actions covers only the parties included in that proceeding, it would be imperative that the Federal Supreme Court suspend this proceeding until the final decision of the objective claim that discussed the same matter.

Not only would this be possible, but also the fact that the Federal Supreme Court, for procedural economics and legal certainty, could broaden the cause of action of the objective claim, observing the articles of the Brazilian Constitution brought up by the subjective pleading. It seems this would also avoid discrepancies in judgments and would respect legal certainty.

With the explanation of the previous paragraph, the issue would be resolved with simplicity and harmoniously in accordance with the legal precepts of the Brazilian legal system. If the causes were not contemporary, even so the problem would have easy solution as we will see in the following topic.

4 OBJECTIVE DEMANDS

Initially, it is worth making a comparison of our legal system in relation to Peru, which, unlike ours, has an autonomous constitutional process (and a unique Constitutional Procedural Code) and which, basically, uses only two types of action (one for the consolidation of fundamental rights and the other for the constitutional processes that ensure the supremacy of the Constitution), but which independently, somewhat resembles the national legal system in other aspects. The Peruvian Constitutional process not only regulates the fundamental rights of its citizens, but also grants them the possibility of promoting actions of unconstitutionality of a law that violates constitutional rights²⁵.

Having drawn this parallel, it is worth going into how our legislator has dealt with the issue now being dealt with in our country, if we do not see it:

With the comparison made in the previous topic on objective demands²⁶ and subjective demands, we now have to deal with the objective demands regarding the concentrated and binding control (the Federal Supreme Court is the only body that has constitutional jurisdiction to do so) of constitutionality and, with respect to the possibility or not of entering into a new claim requesting the declaration of unconstitutionality of a certain infra-constitutional Law, which had its constitutionality declared by the Brazilian Federal Supreme Court, in an action whose cause of action was expanded, taking into account other articles of the Brazilian Federal Constitution, not brought before the first claim.

Germany had a similar problem and the conclusion reached was that the decision not declaring the unconstitutionality of the infra-constitutional law is not binding and, thus, future claims could be filed in order to have that particular infra-constitutional law declared unconstitutional²⁷.

What was not analyzed in the German case was the possibility of rediscussing an infra-constitutional law not declared unconstitutional in cases in which the Supreme Court has in the first case extended the cause of action.

However, it seems to us that the logic that permeates the question can solve the imbroglio in the same singular way. In other words, even if the Federal Supreme Court did not declare the unconstitutionality of an infra-constitutional law in a lawsuit whose cause of action was expanded, such decision would not have a binding nature and, of this magnitude, a future and new lawsuit could be filed in order to see the infra-constitutional law declared unconstitutional.

In any case, although the German judge did not mention the cause of action, the aforementioned decision resolved the issue even more broadly: if the new petition were to use the same constitutional article in order to declare that infra-constitutional law unconstitutional, this would not be possible, given that one cannot use “countless means for this purpose”²⁸.

Therefore, it seems to us that a new lawsuit could only be filed in cases in which the cause of action was changed, even in the case of a lawsuit in which the cause of action was extended ex officio by the Supreme Court. For example, the cause of action was broadened, but the new lawsuit uses constitutional articles that were not used either in the original cause of action or in the extension of the ex officio cause of action by the Supreme Court, so, although the matter has already been discussed, it was not from this new standpoint, so that a new lawsuit may persist. A new lawsuit could also be filed in cases in which the infra-constitutional law was amended or in cases in which the Federal Constitution itself was changed.

This same conclusion was reached by Professor Gilmar Ferreira Mendes, current Minister of the Superior Court of Brazilian Justice²⁹.

CONCLUSION

In view of the greater speed and lower spending of taxpayer’s money, we believe it is imperative to expand the cause of action in actions aimed at declaring the unconstitutionality of an infra-constitutional Law.

In addition to the aspects mentioned in the previous paragraph, the jurisdiction cannot suffer from legal insecurity, judging by the fact that a Law may be declared as constitutional in an action that has as its cause of action a constitutional article and, subsequently, the same Law may be the target of another action with the same purpose, but with right of action different and, of this amount, may be judged unconstitutional.

In this tuning fork, it is not plausible that at the same time the jurisdictions are harmed by having had personal actions judged in accordance with that Law that was supposedly constitutional, but was later considered unconstitutional, since the Federal Supreme Court could have expanded the cause of action and did not do so. If this occurs, the judiciary will again be triggered by many termination actions, in order to see new decisions put in place of one that was motivated by an unconstitutional law.

For this and other reasons widely linked in the present work, it is that we understand primordial the expansion of the cause of action made by the Superior Court of Justice in objective actions.

The social benefits of broadening the cause of action outweigh the arguments of the opposing party, but what cannot be disregarded is that if an action that has had the cause of action enlarged³⁰, but only certain constitutional articles have been analyzed exhaustively and others have not and, subsequently, under another cause of action another claim to be filed seeking a declaration of unconstitutionality of that Law declared to be constitutional, the cloak of the res judicata would not operate and another decision, if the case, could be placed in place of the previous one. We cede the understanding in cases in which there was no expansion of the cause of action, that another demand could be proposed, with cause of action different from that of the first proceeding, without the need to speak of res judicata or, eventually, of its relativization.

Drawing a parallel between objective and subjective claims it is imperative to highlight that the subjective claims although they may be judged by the Superior Court of Justice, the effect generated by this decision is not extra-procedural, only making a res judicata between the parties in that process.

On the other hand, objective claims may have “erga omnes” effects generated by their decision, that is, the declaration of unconstitutionality of an infra-constitutional law issued by an objective claim binding the entire national territory, and all judges of the entire country will be obliged to disregard that infra-constitutional law when judging the claims assigned to them.

Finally, it is worth noting that if there is an amendment to the infra-constitutional law declared constitutional or an amendment to the Constitution itself, another lawsuit may be filed seeking the unconstitutionality of that certain law, even if it had the same cause of action; this may occur, in the same way, if there is a factual or social change in that determinate society³¹.