CONSTITUTIONAL REVIEW SHARED BY PUBLIC ADMINISTRATION AND THE JUDICIARY

Abstract

The article examines diffuse constitutional review by the Public Administration, understood as a function shared with the Judiciary and not as an usurpation of jurisdiction. It reinterprets the principle of legality as constitutionally qualified legality: complying with the law means doing so only insofar as, and to the extent that, it is compatible with the Constitution. This analysis is developed through a dialogue with the recent decision of the Brazilian Supreme Court (STF) in ADI 5,297/TO, which consolidated a new understanding of the issue. On this basis, three modalities of administrative action are distinguished: (a) responsive review, when the Administration complies with and disseminates STF decisions; (b) autonomous review in a strict sense, in exceptional cases of direct conflict between statute and Constitution; and (c) autonomous review by jurisprudential adherence, when the Administration follows, with due reasoning, non-binding precedents. The article also addresses the temporal dimension of administrative self-review, in light of Article 54 of Law 9,784/1999 and Theme 839, rejecting any “adverse possession of constitutionality” and requiring that the correction of unconstitutional acts respect legal certainty, protection of legitimate expectations, and any modulation of effects. In conclusion, it proposes an administrative curatorship of the Constitution, with a garantist and pragmatic profile