An essay on the relations between the Legislative Power and the Judiciary Power from the study of the elaboration process of Constitutional Amendment 116/2022

Abstract

This article aims to analyze PEC 133/2015, converted into Constitutional Amendment 116/2022, which added § 1º-A to art. 156 of the Federal Constitution to provide for the non-incidence on temples of any cult of the Tax on Property and Urban Territorial Property (IPTU), even if the entities covered by the tax immunity are only tenants of the immovable property. When we observe the justification of the legislative measure, we find several theoretical foundations that supported the legislative initiative. However, these theoretical references, based on the understanding of the Federal Supreme Court, were all presented completely inverted from their original meaning, as if the legislator wanted to create arguments of authority to justify the appropriateness of the desired constitutional reform. The objective of this article is, therefore, to rescue the jurisprudential understanding of the Supreme Court, in particular the Binding Precedent 52, to point out the inconsistencies present in PEC 133/2015 and to discuss whether the binding precedent would also bind the legislative activity. The hypothesis is that, as the understanding of the STF was fundamental and decisive for the approval of the PEC, it would also be necessary for the understanding of the senators to follow that of the Supreme Court. On the other hand, as the Legislative Power created a new jurisprudential interpretation on controversy already defined by the STF, it actually appropriates a function that is not essential to its power. This article is expected to contribute to the reflection on the performance of the Powers, in view of the maintenance of the Rule of Law and the Separation of Powers.