Constitutional jurisdiction of the STF in direct actions: the active legitimacy of indigenous peoples in the control of constitutionality

Abstract

The 1988 Constitution established new mechanisms of abstract and concentrated control of constitutionality with the possibility of participation of representatives of civil society. However, the constitutional text did not expressly recognize the active legitimacy of social organizations representing minorities, such as organizations of indigenous peoples. Despite this, the Federal Supreme Court has precedents that broadly interpret the list of legitimate parties to allow vulnerable groups to propose these actions in their own name. This study aims to analyze whether indigenous peoples have the legitimacy to sue the Court through direct actions to defend their fundamental rights. It was only in 2020, on the occasion of ADPF 709, that indigenous people entered the jurisdiction concentrated in their own name for the defense of rights related to health, an action caused by the pandemic of the new Coronavirus. This was an important milestone, as popular participation in the Supreme Court ensures the people's ability to politically express their identity and assists in the process of achieving the mission aimed at defending and protecting human rights through judicial review. If this tendency towards openness is consecrated in the Court, it will be more committed to the emancipatory values of the 1988 Constitution, known as the Citizen Constitution for safeguarding mechanisms of democratic protection.