The separation of powers, the Constitutional Court and the “Judicialization of Politics”

Abstract

To consider the Constitutional Court as a participant of the political process requires, first of all, the study of the separation of powers doctrine. Montesquieu developed the “recipe of the political art”, without ever intending a scientific classification of the State’s functions. Even with the provision of the veto, he did not lost, however, the mark of an apologist of the exclusive separation of powers. Certainly it is a consequence of the insertion of this principle as a “constitutional formula” in a large amount of constitutions published in revolutionary ages. A remark about the rigidity of this system is necessary. If, in a first moment, the rigidity is an absolute character, on can easily note that this principle concerns the preferential and main activity of this power. This character is highlighted because state powers perform functions that, in principle, were not their attributions, evidenced by the checks and balances doctrine. Some specific developments in the performance of power spheres in the other performance of power spheres were made. In this real interrelation of functions, a series of facts happened, specially the judicialization of politics, and politization of justice. Focusing the analysis in the first one, a reflection whether the recent performance of the Brazilian Supreme Court require an eventual shift of political activity from organs not-elected by traditional democratic criteria. The unbalance of the powers is evident, causing concern and requiring a reflection about these facts.