BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

de Descumprimento de Preceito Fundamental – ADPF) 7 n. 178. Essentially, the Federal Public Prosecutor’s Office filed this measure in 2009 to officially recognize stable unions between same sex couples and guarantee them the rights afforded to heterosexual unions. The action initially intended to recognize and remedy the alleged failure of the Legislature to regulate the rights of homosexual couples, though art. 226, § 3 of the Constitution points out that “for the purpose of protecting the State, the stable union between a man and woman is recognized as a family entity, and the law should facilitate its conversion into marriage.” Rejected outright, the Federal Public Prosecutor’s Office presented the petition again and now seeks a verfassungskonforme Auslegung (constitutional interpretation) of art. 1.723 of the Civil Code 8 to provide full protection to homosexual unions. The perplexity that arises is due to the following question: how could such an omission exist if the Constitution itself states that the State’s duty is to protect the union between a man and a woman ? Where would the omission be given that a constitutional command has determined that the State’s obligation is to protect the union between a man and a woman? We cannot speak of a hierarchy among constitutional norms. If we do, then we would have to accept Otto Bachof ’s thesis regarding the possibility of unconstitutional constitutional norms. The most incredible aspect of ADPF is that it also intends to nullify the various decisions that have literally fulfilled this constitutional command. Thus, this measure constitutes a form of hyper-activism. By outline, the following question is also of interest. Executing an important measure of this would transform the Court into a body with permanent powers to amend the Constitution such that the Court could assert a type of Verfassungswandlung (constitutional change) that would function, in fact, as a real Verfassungsänderung (amendment to the Constitution), which only can make via a constitutional amendment. The risk that arises from this type of action is that a judicial legislators of this type produces serious side effects . In other words, there are problems that simply cannot be resolved through an erroneous idea of judicial activism. The judiciary cannot replace the legislators. It is important to remember the difference between activism and judicialization: the former undermines the autonomy of law, whereas the second is contingent. 9 We need not mention the numerous court decisions that oblige 7 In general, we can say that ADPF is a measure similar to the Verfassungsbeschwerde of German law or the Spanish and Mexican amparo (right to protection). However, law n. 9882/1999, which regulates the provisions of § 1 of art. 102 of the Federal Constitution, ultimately restricts, in an unconstitutional manner, the ability of legitimate parties to propose this important instrument to implement fundamental rights. The importance of this mechanism to the interpretation of the Constitution is shown by the topics debated in the following: ADPF n. 54, which debates the constitutionality of the criminalization of abortion in cases of anencephaly; ADPF n. 130, whose central issue revolved around the freedom of the press and the (im)possibility of censorship; and ADPF n. 153, which addressed the possibility of prosecuting and punishing offenders for crimes of torture that occurred during the military regime. To establish that ADPF n. 130 was fully upheld by the SFC, having been decreed a non-receipt of the press law (Law n. 5.250/1967). ADPF n. 153 was dismissed. ADPF n. 54 is still pending. 8 Article 1.723. “The familiar unit is recognized as a stable union between a man and woman, configured as a public, continuous and lasting living partner and established with the goal of forming a family.” 9 Note that a considerable number of Brazilian authors are concerned with the problems arising from this misguided conception of judicial activism in Brazil. On this note, we point out Vanice Lírio do Valle, José

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