A inconstitucionalidade material da Emenda Constitucional 95 de 2016

Abstract

The present work has as a problem to analyze if the Constitutional Amendment 95 of 2016, that instated the New Tax Regime, violates the unoditable clauses listed by § 4 of art. 60 of the Federal Constitution and violates the principle of the prohibition of social retrogression. Even if all the requirements of the Major Diploma have been formally obeyed, as regards the presentation, processing and approval of constitutional amendments, which includes verification of compliance with the formal and circumstantial requirements of constitutionality, the approved constitutional amendment may, however, be submitted by one of those entitled to propose a direct action of unconstitutionality (article 103, items I to IX, of the CF) to the Supreme Federal Court (STF), which in our legal system has the status of guardian of the Constitution, in seat of concentrated control of constitutionality of the norms (caput of article 102 of the CF). Given this context, there are already filed in the Federal Supreme Court, seven actions challenging the constitutionality of said amendment. The Federal Constitution of 1988 brought the protection of fundamental rights to the center of its legal system. In this sense, the aforementioned Constitutional Diploma, which is popularly known as the Citizen Constitution, obliges the Brazilian State to guarantee a series of benefits in the form of public policies as a guarantee of defense to the very dignity of the human person. With this aim, the Constitutional text establishes a series of fundamental rights that should protect the citizen and enjoy a differentiated constitutional status. the present dissertation started from the hypothesis that this constitutional amendment is not compatible with the current constitutional regime, since the protection of the dignity of the human person is at the center of the current Federal Constitution, and the new fiscal regime would make the State unable to provide public policies with bias guarantee the fundamental rights and supply the minimum existential call. Using the deductive method, starting from a general premise, the Federal Constitution of 1988, arriving at the Constitutional Amendment 95 of 2016, with its peculiarities. The bibliographic search method was used. The purpose of this paper is to analyze whether Constitutional Amendment 95 of 2016 suffers from material unconstitutionality. It was analyzed whether the change of the so-called Fiscal Regime, which limited state investments in primary expenditures for 20 years, violates the unchanging clauses listed in § 4 of art. 60 of the Federal Constitution and disrespects the principle of the prohibition of social retrogression, the protection it has on fundamental rights and a brief conceptualization on them.