A função legiferante do poder executivo no Brasil: uma análise das feições das medidas provisórias sob a égide da CF/88.

Abstract

With the historical-social evolution of modern states, it was sought to limit state power as an instrument of guarantee of individual and public freedoms. For this to happen, several scholars have contributed to the establishment of the Principle of Separation of State Functions as the basic axiom of Western societies. In the same way, this principle has gained new aspects, and it cannot be understood nowadays in a tight manner, bearing in view that the functions of the state, besides having inherent competences, have other unusual competences, called atypical functions. Among these atypical functions is the ability, in the Brazilian legal system, of the Executive Branch to edit normative terms called Provisional Measures with force of law. This legal instrument, from its conception in the National Constituent Assembly of 1987/1988, has generated innumerous discussions about its rationale in CF/88. Not infrequently the Presidents of the Republic used the Provisional Measure, implying in a true legislative activism of the Executive Function. Under this bias, this research seeks to analyze the legislative activism of the Executive Branch, through the edition of Provisional Measures, in light of the Principle of Separation of Powers. It is approached yet, the concepts of this juridical institute, looking at heir historical persecution and institutional advent, the material and constitutional limits to their edition. There for, will be analyzed the data from the legislation production of Provisional Measures after CF/88 available on the websites of the Chamber of Deputies, Federal Senate and Planalto Palace, correlating them with the social, political, economic and cultural factors experienced by Brazil in the period. In the making of the present study will be used the deductive, historical-evolutionary and legal-exegetical methods as well as the technique of bibliographical and empirical research through an exploratory and qualitative approach. The study focused in particular on the period understood between the years of 1995 to 2000, time of great economic and social changes in the country. It was perceived still, important changes in the is suear ising from EC 32/2001, with the decrease in the number of Provisional Measures editions after the promulgation of this Amendment, mainly due to the extinction of the reissue institute. The atypical legislative production carried out by the Executive Branch through the issuance of Provisional Measures requires a greater oversight by the others State Functions, especially by judicial control, through STF, in order to curb the unbridled and often undemocratic edition of these normative species.