As prerrogativas do judiciário para a proteção dos direitos fundamentais de liberdade em sistema de crise na Constituição Brasileira de 1988 em referência ao período de 1964 a 1979 da ditadura militar brasileira

Abstract

This work aim to analyze whether the Judiciary own institutional prerogatives to effectively ensure the liberty rights in system of crisis, using, as a pattern, the experiences of Brazilian military dictatorship during the period of 1964 to 1979. For this, it is observed that, when is valid a crisis system, understood as a form of extraordinary legality, is not allowed neither to suppress rights nor that democracy be converted into an authoritarian order and, for that, it is essential the jurisdictional control to repress abuses and illegality, committed mainly by state agents. However, using as a pattern the 1964 Brazilian authoritarian regime, it is observed that the Judiciary was used as an instrument to support the regime, because its institutional prerogatives was annulled; the ministers of the Supreme Court were gradually being replaced by regime supporters and also the Judiciary did not oppose the dictatorship directly, by declaring the unconstitutionality of its institutional acts. After the dictatorship, there was no criminal prosecution of state agents, who committed infractions, and the search for truth and the redemption of the memory is still incipient. This historical example contributes to verify that, within the crisis system, should not only be increased the Executive and the Legislature prerogatives, but also the Judiciary s for the purpose of repressing state acts that extrapolate crisis measures, by providing the Courts and prosecutors a greater investigative powers. Another conclusive hypothesis is the necessity to relativize paradigms, once made sacred in times of normality, such as the presumption of veracity and legitimacy of the government acts and, moreover, the canals of justice access must be kept open, forbidding suspending procedural guarantees. This study also indicates that the Courts must intensify the supervision of the State acts, requiring the presentation of clear information about the crisis measures and, above all, they must punish, in civil, criminal and administrative instances, illegalities committed by agents of the state to demonstrate that extreme violations of rights or suppression of the democratic order are not applicable in the validity of the constitutional crises system. Therefore, the Judiciary has the capacity to ensure the freedom rights in crisis system, however, for the effectiveness of this control, legislative changes are required to increase the prerogatives of the Courts, as well as an adaptation of jurisprudence, adjusted to the reality of crisis.