Os limites da legitimidade ativa dos partidos políticos na impetração do mandado de segurança coletivo: uma análise sob a ótica do art. 21º, Caput da Lei n. 12.016/2009

Abstract

The present work intends to demonstrate the reach of the active legitimacy of the parties in the seat colletive writ of mandamus, especially after the enactment of law n. 12.016/2009, considering that party associations represent a link between the state and civil society, aiming to understand the desires and demands that hatch in the national territory. This, the research was carried out by means of an inductive methodology and based on some sources of information, highlighting books, scientific articles and conveyors of jurisprudence related to the subject matter. Therefore, aiming to arrive at such conclusion was analyzed first the role played by the party associations in the Federal Constitution of 1988. Then, it starts from a historical analysis of the Brazilian collective process and it’s impacts on the collective security order, especially with regard to the drafting of art. 21 paragraph single law n. 12.016/2009 to diffused right, collective right and homogeneous individuals. The question was raised concerning the legitimacy problem to act in the collective process based on the principle of adequate representativeness supported by the judicial control ope judicis, following the way until the beginning of the analysis of art. 21, caput, first part of the law 12.016/2009. Which makes it possible to observe that any kind of limitation to the charge of the collective writ of mandamus implies an offense against of the Federal Constitution of 1988. In the end, it is concluded that the political parties can petition for safeguards for issues that go beyond the institutional interests of their members, keeping in relation with the objectives advocated by the original constituent in art. 17, caput, Federal Constitution of 1988.