The restriction of parliamentary immunity in the ADI 5526: a critique of judicial review from the analysis of Min. Luís Roberto Barroso vote

Abstract

This paper critically analyzes the vote of the Supreme Court Minister Luís Roberto Barroso in the ADI 5526, which prescribes different precautionary measures for the arrest for congressmen and congresswomen, which would be subject to the revision of the Legislative Power. Furthermore, the purpose of parliamentary immunity is to protect the democratic autonomy of the legislature in relation to the judiciary, diminishing its power of interference. This paper concludes that the expansion of article 319 of the CPP does not restrict the constitutionally established guarantee of parliamentary immunity. Henceforth, ADI 5526 proves a symptomatic case of how the Federal Supreme Court treats other branches of government, especially the legislative branch. In this sense, this paper utilizes the perspective of Dimoulis and Lunardi, as well as Waldron, in order to understand the limits of judicial control of constitutionality in order to point out the difference between the Barroso’s vote and the jurisdictional political legitimacy of its control of constitutionality.