Publicação
O princípio anticorrupção e a reorientação do direito constitucional face aos desafios no enfrentamento à corrupção: dogmática, hermenêutica e prática
| Resumo: | The aim of this study is to outline the constitutional principle of anti-corruption as the basis of a major anti-corruption premise within the constitutional system itself and to act as a protector of the Democratic State of Law and its human rights, violations caused by corruptibility in times of low-intensity democracy. Corruption is a collapse factor in the system, always leading to negative consequences: it is a kind of "cancer" with corrosive effect in societies, contaminating democracy, the rule of law and the Social Contract. It is a pathology of the political system that degenerates citizenship, demoralizes the people, contributes to the lack of trust in institutions and erodes democratic legality. It is essential to note that the phenomenon is systemic in many countries and, while it hinders the capacity of governments to guarantee the minimum rights of their nationals, prevents investment in social policies and the consequent development of a nation. Thus, the public or private resources that should be used to promote human rights are diverted to favoring few. Thus, when public or private resources are diverted to system fraud or to benefit a caste conniving with corruptibility, the human being is the main victim. Ex positis, the discussion turns to the need to make explicit an Anticorruption Constitutional Principle, of hermeneutic-juridical character, independent and constitutionally structuring in the same level of other constitutional clauses that establish, for example, the Principle of Human Dignity with the purpose to sustain greater effectiveness, since only a comprehensive fight against corruption could save a weakened constitutional democratic order.In this way, with a focus on bibliographical research, statistics and deductive method, we will try to analyze, as hypothesis, the application of such hermeneutic-juridical and structural principle as the north of the constitutional interpretation, elaboration, application and constitutional control of the laws for the effective compliance with the maximum ends of the Republic (res publica). Moreover, from this principle are derived some sub-principles already existing in the normative corollary, as of public morality, administrative probity, transparency and others, but that sparse in the legal text do not produce the effectiveness that would produce if they integrated a corollary of the Principle proposed by the present study. As a result, it is noted that the Anti-Corruption Principle is autonomous, independent and can be explicit or implicit, has its own weight and should function as a constitutional purpose, and may be argued by lawyers or magistrates to reinforce the fight against corruption, restoring confidence in the Democratic State and playing the role of a human rights shield against the corruption abuses that so muzzle democracy and defenestrate the pillars of constitutionalism. |
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| Autores principais: | Betiatto, Aline |
| Assunto: | Princípio Anticorrupção Democracia Corrupção Direitos Humanos Constitucional Anti-Corruption Principle Democracy Corruption Human Rights Constitutional |
| Ano: | 2019 |
| País: | Portugal |
| Tipo de documento: | dissertação de mestrado |
| Tipo de acesso: | acesso aberto |
| Instituição associada: | Universidade de Coimbra |
| Idioma: | português |
| Origem: | Estudo Geral - Universidade de Coimbra |
| Resumo: | The aim of this study is to outline the constitutional principle of anti-corruption as the basis of a major anti-corruption premise within the constitutional system itself and to act as a protector of the Democratic State of Law and its human rights, violations caused by corruptibility in times of low-intensity democracy. Corruption is a collapse factor in the system, always leading to negative consequences: it is a kind of "cancer" with corrosive effect in societies, contaminating democracy, the rule of law and the Social Contract. It is a pathology of the political system that degenerates citizenship, demoralizes the people, contributes to the lack of trust in institutions and erodes democratic legality. It is essential to note that the phenomenon is systemic in many countries and, while it hinders the capacity of governments to guarantee the minimum rights of their nationals, prevents investment in social policies and the consequent development of a nation. Thus, the public or private resources that should be used to promote human rights are diverted to favoring few. Thus, when public or private resources are diverted to system fraud or to benefit a caste conniving with corruptibility, the human being is the main victim. Ex positis, the discussion turns to the need to make explicit an Anticorruption Constitutional Principle, of hermeneutic-juridical character, independent and constitutionally structuring in the same level of other constitutional clauses that establish, for example, the Principle of Human Dignity with the purpose to sustain greater effectiveness, since only a comprehensive fight against corruption could save a weakened constitutional democratic order.In this way, with a focus on bibliographical research, statistics and deductive method, we will try to analyze, as hypothesis, the application of such hermeneutic-juridical and structural principle as the north of the constitutional interpretation, elaboration, application and constitutional control of the laws for the effective compliance with the maximum ends of the Republic (res publica). Moreover, from this principle are derived some sub-principles already existing in the normative corollary, as of public morality, administrative probity, transparency and others, but that sparse in the legal text do not produce the effectiveness that would produce if they integrated a corollary of the Principle proposed by the present study. As a result, it is noted that the Anti-Corruption Principle is autonomous, independent and can be explicit or implicit, has its own weight and should function as a constitutional purpose, and may be argued by lawyers or magistrates to reinforce the fight against corruption, restoring confidence in the Democratic State and playing the role of a human rights shield against the corruption abuses that so muzzle democracy and defenestrate the pillars of constitutionalism. |
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