Hermeneutiscs of the concept of direct offense to the constitution and the appropriateness of the extraordinary appel

Abstract

This paper addresses the hermeneutics of the concept of direct offense to the constitution and the appropriateness of the extraordinary appeal. Considering at the outset the supremacy of the Constitution, the extraordinary appeal is aimed at ensuring the enforcement of the Constitution, when its provisions are violated. This paper presents the prerequisites for lodging an extraordinary appeal, in particular prerequisite established by Federal Supreme Court according to which the alleged offense to the constitution must not based on the interpretation of any Brazilian law other than the constitutional text itself. This fact gave birth to the term: direct offense to the constitution. We shall try to demonstrate, however, that the general principles of the Magna Charta are projected to the legislation and we, therefore, argue for a milder interpretation of the term by making use of broadrange, instead more restrictive, hermeneutical rules. It is argued that, despite the current period of crisis through which the Judiciary Branch is going, restricting the use of the extraordinary appeal, may imply disregarding chief principles of the Rule of Law, such as the adversary system principle, the ample right of defense principle and due process of law.