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Critical reflections on the "ex officio" declaration of unconstitutionality

Abstract

This article intends to explore the arguments for and against the possibility of the declaration of unconstitutionality of norms ex officio. It intends to demonstrate that the problem at hand hides several complexities that cannot be ignored when the subject is broached. It proposes that it is possible to think of an adequate model that considers the numerous implications that stem from the prohibition or obligation of the ex officio control. The research employs an analytical methodology, given that, through careful examination of national and foreign jurisprudence and doctrine, it intends to develop on arguments that are currently asserted, establishing (i) a panorama for the creation of a model capable of absorbing the ramifications of the problem and (ii) a base for future constructive criticism of the models that currently reign supreme. It concludes that the possibility of ex officio judicial review does in fat deserve reconsideration in Brazilian doctrine and jurisprudence, because of its accentuated relevance, complexity and implications in the separation and balance between Powers.

Keywords:
judicial review ex officio; declaration of unconstitutionality ex officio; iura novit curia; principle of congruence; matter of public policy

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