The role of legal provisions of mandatory replication in member-states’ autonomy

Abstract

The legal provisions of mandatory replication are those of compulsory observance in member States’ constitutional texts and are derived from the subordination to the basic principles of the Constitution of the Republic, in accordance to the legal provision inserted in the Article 25, caput, of Federal Constitution of 1988. Concerning such norms the constituent is required to insert them into the Constitution of the State in a transplantation process. The norms of mandatory replication are spread throughout the whole constitutional text and, quite often, are implicit, what makes it difficult for interpreters to determine whether they must be applied or not. Then, it is necessary to answer the following questions: which role is played by provisions of mandatory replication? How they can be identified? What are the constitutional parameters that must be observed in order to avoid infringement of member States´ autonomy? The application of those principles bears a limitation onto States’ autonomy and therefore, must comply with the federative prin[1]ciple, in order not to annihilate the Member-States’ autonomy, being such – the autonomy of federative entities – the intrinsic characteristic of this form of State. The research was documentary and bibliographic, based upon books, journals articles, statutes and regulations, aiming at enhancing understanding of the subject, in a exploratory, descriptive, qualitative and explanatory approach. After an introduction, the text examines different conceptions of States´ autonomy and of provisions 105 Revista Acadêmica Escola Superior do Ministério Público do Ceará of mandatory replication. Then, it presents the results of an analysis of recent rulings by Brazil´s Supreme Court. It comes to the conclusion that provisions of mandatory replication derive from the need to harmonize the Federation and impose a limitation of powers to Member-States and, therefore, must be used with moderation, once their enforcement cannot derogate States’ autonomy, specially employing balancing of the principles of autonomy and of simetry.