The number of unconstitutionality actions judged by the TJ-SP (State Court of Justice) has grown 66% in the last four years, and experts point to excessive judicialization and tension between municipal powers.
The total of state ADIs (direct actions of unconstitutionality) appreciated by the Court jumped from 576 in 2020 to 955 in 2024. The data are contained in the ranking of unconstitutionality, survey of the São Paulo Justice Yearbook, published by Conjur.
Lawyers and law teachers consulted by Sheet They highlight the greater frequency with which it has been called to decide on topics of legislative and administrative spheres.
From 2020 to 2024, he kept him the lead as the main proposed actions, with a figure ranging from 294 in that period to 536 last year. Mayors were the second group that most signed the authorship of the actions, with 243 in 2020 and 367 in 2024.
In the municipalities that head the ranking, on the other hand, the proportion of actions proposed by mayors in the face of the city councils remained greater than the number of actions filed by other organs in the same five years.
In 2024, for example, TJ-SP data show that of the 955 ADIs judged, 56% were proposed by the Public Prosecution Service, and 38%, by the Municipal Executive. In total, percentages are equivalent respectively to 536 and 367 actions.
Considering the three cities with the largest number of unconstitutional rules last year (Catanduva, São José do Rio Preto and Santo André), the scenario is reversed. The proportion of actions filed by mayors rises to 83%, while those proposed by the prosecutor fall to 13% last year.
A representative case occurred in November, when the TJ-SP revised a Catanduva law that forced the city to provide solar protectors to the servers, deciding in favor of the mayor. The board thought that the text dealt with the structure and attributions of the administration and the legal regime of the servers, in order to invade the competence of the executive.
In 2021, the proportion of actions filed by mayors was even greater. That year, 47% of the 699 ADIs across the state were proposed by chiefs of the executive, and the prosecutor was the author in 46% of this same total of cases.
The municipalities of Mauá, Andradina and São José do Rio Preto, who led the ranking in 2021, present a different scenario. The proportion of state constitutionality control actions proposed by the municipalities of these cities is equivalent to 95% against 2% of ADIs filed by the Public Prosecution Service.
The survey was based on data provided by the TJ-SP, considering only direct unconstitutionality actions judged in the merits: proceeding, in part and unfounded.
This process class allows you to judge the compatibility of state or municipal norms with state constitutions. If upheld, the Court overthrow and declares the unconstitutional text.
Gustavo Sampaio, Professor of Law at UFF (Fluminense Federal University), states that the performance of municipalities is sometimes due, but can also indicate a shudder of the relations between executive and legislature in the municipality, culminating in “judicialization of politics”.
“Certainly there is a management of unconstitutionality representation for political purposes. It is often fair to bring state adis fair, but it is often the extension of a dispute that leaves the local policy plan. This usually occurs in municipalities where the mayor does not have the majority in the House,” he says.
This phenomenon, says Sampaio, is not restricted to Brazil and must be understood in the light of the evolutions of constitutional law throughout history, more specifically, the changes that the force of the Constitutions has undergone after World War II.
“Written constitutionalism is materialized with the late 18th century liberal revolutions, such as the French and the United States. It was the beginning of an upward walk. After World War II, the constitutions contain coordinating principles. And of course the judiciary, as the final interpreter of this text, which surpasses the three powers of the state,” he says.
As explained by Pedro Serrano, Professor of Constitutional Law at PUC-SP, this context of general increase in the number of actions, added to the greater frequency of mayors as authors of ADIs in some municipalities, may also indicate addictions in the elaboration of rules by municipal legislatures, motivated by activist behavior of the powers.
“In the last 15 years, there has been a lot of judicial activism. Now it’s time to talk about legislative activism as well. There is an institutional crisis in the state division of the state and a lack of boundaries in the performance of powers, which have invaded each other’s skills. Increased state ADIs can be a symptom of this problem,” he says.
Former Attorney General of the State of São Paulo and professor of law at USP, Elival Ramos attributes the general increase in the number of judgments to a loss of quality of the legislative and political process.
He points out that laws and norms can be approved with unconstitutionality addictions due to the lack of more technical analysis and that councilors can sometimes even ignore these flaws for political reasons.
Ramos acknowledges that the troubled relationship between mayor and chamber may be linked to the increase in the number of constitutional judgments in some municipalities, but minimizes. “It’s hard to dig, because you would have to know more details,” he says. “I have the impression that they are varied things.”
According to the teacher, for a more conclusive response, it would be necessary to know more about when the action was proposed, who were the mayor and the mayor and what the parties were, as well as to investigate the reason for the case in the case.
