A atuação do Conselho Nacional de Justiça e a independência do poder judiciário no ordenamento jurídico brasileiro.

Abstract

The National Council of Justice, no jurisdiction organ with administrative, inspecting and controlling nature, it started to integrate the Judiciary Power structure with the promulgation of the Constitutional Amendment n. 45/2004. In spite of having their attributions delimited in the constitutional text, the Council is expanding its performance field on the pretext of guaranteeing the Judiciary independence. However, the actions of that organ are theatening the principle of the Powers Separation, especially the Judiciary Independence. Thus, this work has as central objective to investigate the ways that the NCJ actions exceed those delineated by the Derived Representative. For that, it has been used as approach method the hypothetical-deductive, being used as procedure methods the historical-evolutionary, the exegetic-juridical and the hermeneutic, being instructed the research with the indirect documentation, through the bibliographical research, with subsidy of the national doctrine, of scientific articles and magazines, besides an empiric research in the NCJ database. Degenerating the regulate power, NCJ exercises the primary normative power, without constitutional forecast in that sense, running over the Principle of Legality, corollary of the democratic State of Right itself. The exercise of a wide correctional activity, independent of the tribunals' controlling organs performance, it comes, through a transverse road, interfering in the jurisdictional activity, imposing certain conducts to the magistrates, characterizing insult to the Judiciary independence. The Council, when disciplining the matter through the Resolution 135/2011, invaded the field reserved to the law, hurting principles consecrated in the constitutional order. The constitutionality control of laws and normative actions have also been exercised by the NCJ, when invalidating laws and, indirectly declaring them unconstitutional, when appreciating Administrative Procedures Control, making possible for a no jurisdiction organ to determinate the non execution or the alteration of a law or normative action, contrarily to the model of judicial control adopted by the Brazilian juridical system. Thus, NCJ is exceeding the attributions that were given it by the EC n. 45, acting where the FC/88 didn't authorize, causing insult to the Principle of the Independence and Autonomy of the Judiciary, pillars of the Principle of the Powers Separation.