FROM PLANNED AMBIGUITY TO THE AUTOMATIC TRIGGER: THE PERPETUATION OF LEGISLATIVE OMISSION IN ADO 38/DF

Abstract

This article analyzes the Direct Action for Unconstitutionality by Omission (ADO 38/DF), which addressed the absence of a complementary law regulating article 45, paragraph 1, of the Brazilian Federal Constitution of 1988 – specifically the proportionality of the distribution of seats in the Chamber of Deputies per Federation unit. The study assumes that the legislative omission prolonged for more than three decades does not constitute a isolated deviation but rather reveals a chronic dysfunction of the Brazilian Democratic State of Law. Using doctrinal review (especially José Afonso da Silva and Daniel Sarmento) and analysis of the jurisprudence of the Brazilian Supreme Court (STF) – with emphasis on the rulings ADO 38/DF (legislative omission of art. 45, §1, CF/88) and ADI 4.947/DF (incompetence of the Superior Electoral Court to legislate on the matter) –, it is demonstrated that planned constitutional ambiguity, the inertia deliberandi of the Legislative Branch, and the compulsory judicialization of politics constitute structural pathologies of the post-1988 constitutional system. It is concluded that the solution proposed by the STF – automatic application of the 2022 Census figures only for the 2030 elections – represents a certificate of bankruptcy of the ordinary legislative process, postponing the correction of the representational distortion and reinforcing perpetual judicial tutelage over an eminently political matter.