As disposições transitórias na Constituição de 1988

Abstract

This research aims to provide a further study of transitional constitutional norms. Its main foundation is the analysis of the Transitional Constitutional Provisions Act of the Constitution (ADCT) of the Federal Constitution of 1988. For this purpose, we set out on a historic path that rescues the objective, characteristics and the making process of a constitution in a Democratic Rule-of-Law State. We also address the models of constitutional transition that marked not only Brazilian history, but also several other countries having as a background, the constitutive techniques that were used to prepare the clauses that govern them. This study addresses the goal and the political use of transitional provisions throughout the years as well as their legal implications, being the latter, focused on their role in the interpretations of the norms that make up the permanent body of the Constitution. In general, a transitional provision is described as a rule designed to last for a determined period of time in the legal system. This view is also shared by many scholars. It seems, however, that this idea is often presented detached from a further analysis on both the nature and the purpose of the transitional provisions within the context of the Federal Constitution of 1988. At present the transitional body of our Constitution has already reached almost 100 articles. It is a meaningful figure that has certainly outnumbered the permanent body of several international constitutions. This research approaches interrelated themes such as the role of Constituent Power and the various processes of constitutional transition occurred in Brazil. It is commonplace to say that the constituent power is manifested through a revolution. Even less discussed is the possibility of its operation to be based on a process of transition of a less turbulent political and legal regime. Not only the legal perspective of transitional constitutional provisions will be considered, but mainly its political bias. Given the arrangements of constitutional transitions Brazil has been through in recent decades - which ended up with the promulgation of the 1988 Constitution - the analysis of these provisions is key to understand their real role in our constitutional system, in face of the country s political and constitutional evolution. Regarding the technical analysis of these provisions, we provide their doctrinal concepts, functions and classification. Despite the massive presence of the transitional provisions in the 1988 Constitution, we find that theoretical studies devoted to the subject are rare. Those who have ventured to attend to it have significantly helped its better understanding and have filled an important gap, for which this study also aims to contribute