Writ of Mandamus No. 35,410/DF and the analysis of the constitutionality of legal norms by the Courts of Auditors

Abstract

After the Federal Constitution of 1988, there was a considerable expansion of the list of competences attributed to the Courts of Auditors, being several prerogatives expressly provided by law, as well as implicit duties-powers recognized for the exercise of their constitutional function. In this regard, the audit courts were recognized as having a broad general power of caution to stop administrative acts that were contrary to the legal system. Nevertheless, the most troublesome topic, both in doctrine and in jurisprudence, has always been about the possibility or not of the Courts of Auditors to conduct, in the context of the concrete assessment of administrative acts, the constitutionality review of normative diplomas or to fail to apply the law which comes to be incompatible with the Federal Constitution. It is in this context that the discussion held by the Supreme Court in MS 35,410/DF is parameterized. Although it is not a new matter in the scope of the Supreme Court, the discussion advances to relevant themes that indicate to delimit, even more, the scope of legitimacy for the role of the Court of Auditors in dealing with this matter.