The writ of mandamus (mandado de segurança) is a constitutional instrument, integrated into the microsystem of fundamental guarantees, intended for the protection of a clear and certain right, not covered by habeas corpus or habeas data, whenever the party responsible for the illegality or abuse of power is a public authority or an agent of a legal entity exercising public duties. It is a special procedure action, of original or appellate jurisdiction, governed primarily by Constitutional and Civil Procedural Law.
Concept and Foundation
The writ of mandamus constitutes a mandatory action, whose primary purpose is immediate judicial protection against injuries or threats to subjective rights, provided that the factual and evidentiary support is presented, from the outset, as unequivocal. The characteristic of "clarity and certainty" of the invoked right implies the lack of need for evidentiary proceedings, requiring that all facts be demonstrated documentarily at the moment of filing.
Legally, the institute acts as a procedural guarantee of constitutional nature (Art. 5, LXIX, of the 1988 Federal Constitution), possessing a subsidiary nature. Classical doctrine, led by Hely Lopes Meirelles and ratified by contemporaries such as Celso Antônio Bandeira de Mello, defines a clear and certain right as one that is manifest in its existence, delimited in its extent, and capable of being exercised at the time of filing.
Historical Origin and Evolution
The genesis of the writ of mandamus in the national legal system dates back to the 1934 Constitution, which introduced it as a response to the need for a constitutional remedy that would supply the deficiencies of habeas corpus, at the time restricted to freedom of movement. After fluctuations during exceptional regimes, the 1988 Constitution consolidated the institute as a pillar of the Democratic State of Law, granting it the status of an unamendable clause (Art. 60, § 4, IV, of the CF/88).
Legal Provision and Procedural Rite
The normative discipline of the writ of mandamus is structured by the following statutes:
- Federal Constitution: Art. 5, subsections LXIX (individual) and LXX (collective).
- Law No. 12.016/2009: Statute that regulates individual and collective writs of mandamus, establishing a 120-day limitation period for filing, counted from the knowledge of the challenged act.
- Code of Civil Procedure (CPC/2015): Subsidiary application, notably regarding appeals and the execution of mandatory decisions.
Consolidated Understanding and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated fundamental guidelines for handling the action:
- STF Súmula 266: A writ of mandamus does not lie against a law in the abstract. The challenged act must have a concrete character.
- STF Súmula 267: A writ of mandamus does not lie against a judicial act subject to appeal or correction.
- STF Súmula 304: The writ of mandamus is not a substitute for a collection action, an understanding that remains valid, even if mitigated by STJ jurisprudence regarding past patrimonial effects (STF Súmula 271).
Recently, the Supreme Federal Court has reinforced the legitimacy of the writ of mandamus in controlling internal acts of the Legislative Branch (parliamentary mandamus) and in protecting the prerogatives of parliamentary minorities, reaffirming the counter-majoritarian function of the Judiciary.
Contemporary Relevance and Impacts
In the current scenario, the writ of mandamus reaffirms itself as the most effective mechanism for controlling the legality of administrative acts. Contemporary discussion revolves around the collective writ of mandamus (Art. 5, LXX, CF), with the STF reaffirming the extraordinary legitimacy of political parties and unions to defend diffuse and collective rights, expanding the spectrum of judicial protection and access to justice in demands of relevant public interest.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF.
- BRAZIL. Law No. 12.016, of August 7, 2009. Regulates the individual and collective writ of mandamus and provides other measures.
- SUPREME FEDERAL COURT. Súmula No. 266: "A writ of mandamus does not lie against a law in the abstract."
- SUPREME FEDERAL COURT. Súmula No. 267: "A writ of mandamus does not lie against a judicial act subject to appeal or correction."
- SUPREME FEDERAL COURT. Súmula No. 271: "In the granting of a writ of mandamus, the collection of patrimonial effects shall not be decreed in relation to the period prior to the filing, which must be claimed administratively or through the appropriate judicial path."
- MEIRELLES, Hely Lopes. Mandado de Segurança e Ações Constitucionais. São Paulo: Malheiros.
