THE UNCONSTITUTIONAL STATE OF AFFAIRS AND DEMOCRATIC TRANSFORMATION IN BRAZILIAN CONSTITUTIONALISM

Abstract

This paper analyzes the State of Unconstitutional Affairs (ECI) as an instrument of democratic transformation in Brazilian constitutionalism. Imported from the jurisprudence of the Colombian Constitutional Court and applied by the Brazilian Supreme Federal Court in paradigmatic decisions, such as ADPF 347, which deals with the national penitentiary system, the ECI has been consolidated as an institutional response to systemic violations of fundamental rights. The research is based on the premise that the declaration of ECI, although endowed with strong democratizing potential, raises tensions regarding the democratic legitimacy of judicial action in replacement for political powers. The central objective is to investigate whether the ECI can be understood as a mechanism for social transformation or whether it represents a risk of excessive expansion of the Judiciary. The methodology is qualitative, based on a bibliographic review of national and foreign authors on constitutional jurisdiction and judicial activism, in addition to the analysis of STF decisions that applied or discussed the institute. Preliminary results indicate that the ECI (Extrajudicial Legislative Intervention) has the potential to induce the implementation of public policies in contexts of state omission, but it challenges the classical theory of separation of powers and the democratic legitimacy of constitutional jurisdiction. It is concluded that the ECI can operate as an instrument of material democratization, provided it is applied under criteria of exceptionality, institutional dialogue, and respect for the Constitution, avoiding the transformation of the Judiciary into a permanent positive legislator.