CARMO, P. F. A.; CARMO, Pedro Feitosa Arraes do.
Abstract:
According to the terms of Art. 7, clause II, of Law 1.533/51, the concession of
a preliminary order should occur when based on relevant facts, and when, if
deferred, the contested act may result in the inefficiency of the measure. Thus, if the
necessary requirements for the preliminary order are present, its immediate and
imperative effects cannot be opposed, because the concession of the preliminary
order will be related to the constitutional purpose of protection of the complete and
assured rights, with any prohibition of the normative measure being contaminated
with absolute unconstitutionality, once the efficiency of the constitutional remedy is
restricted, leaving the rights of the petitioner unprotected. If it is correct that the
preliminary order should not be prodigalized by the judiciary, so as to not hinder the
normal administrative activities, it should also not be denied upon verification of its
legal presuppositions, in order to avoid the nullifying of the final sentencing in favor of
the petitioner. There are frequent cases in which the tardy acknowledgement of the
petitioner's right renders it completely null. Consequently, in case of the edition of
laws or normative acts which prohibit or reduce the possibility of the concession of a
preliminary order in place of a restraining order, the judge may diffusely remove the
incidence of those normative measures as unconstitutional, and concede the
necessary measure. The concession of a preliminary order; as initially requested by
the petitioner in filing for a restraining order, which seeks to prevent irreparable
damages of any sort occurring during the proceedings. The validity of the preliminary
order in the proceedings of the restraining order is as important as the sentencing
decision itself.
