Source: Legal Consultant - SP - 21/11/2009

Legal certainty is essential for a country like Brazil to receive the investments it needs to develop to the extent of its potential. This means respect for the Democratic Rule of Law, the current Constitution, the balance between the Powers of the Republic and the establishment of stable regulatory frameworks with regard to relations between companies and the State.

Although we are living through an already long period of democratic normality - unprecedented in our troubled political and social history - threats of retrogression hang in the air due to some laws already approved and others that may come to light if they pass through the sieve of the National Congress . Just as Brazilian society has already incorporated, regardless of governments, the monetary stability that we have enjoyed since the implementation of the Real Plan, it is also necessary to guarantee the achievements in the legal area.

First of all, let us examine the new legislation that now regulates the writ of mandamus, which is concerned with bringing some unconstitutionalities. Law No. 12.016, of 2009, revoked the previous one, numbered 1.533 / 1951, which until now regulated the matter, accepted in the Constitutions of 1967 and 1988.

At the outset, it is important to remember that Article 5, items LXXIX and LXXX, of the Constitution guarantees Brazilian citizens who have their constitutional rights suppressed or threatened the possibility of filing an injunction, individual or collective, without any limitation. Thus, if the injury or the threat of injury is characterized, the person whose rights have been affected may appeal to the Judiciary through this means, which will grant or not the order, due to the magistrate's conviction of the existence of a net and certain right. Therefore, the new law cannot impose limitations that are not in the Supreme Law.

These limitations translate into the requirement of deposits, deposits or guarantees for their concession, thus violating the spirit of the Major Charter of the Republic, since, in the form in which the new writ of mandamus law was drafted, the provision of guarantees becomes a almost “power-duty”. In fact, being the hypothesis in the law, no magistrate will grant security in patrimonial matters, without guarantee, not to be considered suspect. And those who do not have the necessary resources to make the deposit and thus ensure the process will not have their net and certain rights protected.

Likewise, another limitation of the new law is present in article 1, paragraph 2, which prevents the granting of writ of mandamus against management acts by administrators of state-owned companies (public, mixed economy, public service concessionaires). For, if the authorities cannot be held responsible for their acts (guards) as public administrators - according to paragraphs 5 and 6 of article 37 of the Constitution - the text of the new law goes against constitutional principles.

Paragraph 2 of article 7, inclusive, prohibits the granting of preliminary measures to release imported goods, customs reclassification, the equivalent of public servants or advantages of any nature, from granting increases or extending them for payment.

However, the prohibition on granting an injunction, for example, on imports of goods, can cause considerable losses to importers, without their net and certain right being protected.

The same can be said of the collective writ of mandamus, which can only be granted after the judicial representative of the legal entity of public law.

In other words, a constitutional procedural remedy, the writ of mandamus, which does not provide for limits on its use, cannot be used precisely because of the imposition of some limiting points, made by infraconstitutional law! (article 22, paragraph 2).

The Federal Council of OAB-SP has already filed a direct action of unconstitutionality in the Supreme Federal Court against these provisions, clearly reducing the rights guaranteed by the 1988 Constitution to citizens in general.

What concerns us, however, is that the enactment of the law also reduces, in tax matters, the taxpayers' right, remembering that, in the bills of transaction and tax enforcement, under discussion in the Chamber of Deputies and proposed by the federal government, the taxpayer 's right is reduced to almost nothing.

According to these projects, the Treasury can, through the National Treasury Attorney's Office, seize taxpayers' assets, take them up for auction without judicial authorization. Only after the constriction of these assets is completed, will the matter be referred to the Judiciary within 30 days, where the taxpayer will be able to discuss for eight to ten years to recover not the real value of the auctioned asset, but the fruit of the dispute at auction, in which they are usually sold for 30% or 35% of their true value.

And, in the transaction project, whatever the agreement that the taxpayer makes with the government, it may come to be reconsidered, by the government's own act, whenever it wishes.

Both the new writ of mandamus law and the tax execution and transaction projects are in line with the setback with regard to citizen's rights. In the certainty that the State is a symbol of the public interest and it is up to each citizen to serve the State, and not because it is served, this legislative complex, which is beginning to be “perfected”, signals the establishment of absolute legal uncertainty that is beginning to install in the country.

The intention is to ensure that the taxpayer has a single right, that is, to remain silent and obey the State, in what it does legal or illegal, making his life and his assets available to those in power.

[Article originally published in the State of S. Paulo, this Saturday, November 21, 2009]