A (i)legitimidade do ativismo judicial no inquérito das fake news e a crise democrática

Abstract

Democracy is essential for the construction of a fair and participatory society, based on the separation of powers to ensure balance between the Legislative, Executive and Judiciary. Recently, judicial activism, influenced by neoconstitutionalism, has led the Judiciary to assume a more active role in the interpretation and application of laws, intervening in political and social issues to protect fundamental rights. However, this proactiveness generates tensions with other powers, especially in reactive democracies. The fake news inquiry in Brazil exemplifies the challenges of judicial activism, where the Federal Supreme Court (STF) faced criticism for the alleged violation of fundamental procedural guarantees. The theory of guaranteeism, proposed by Ferrajoli, emphasizes the importance of rigorously defending fundamental rights and procedural guarantees, proposing that the State's punitive power must be limited by legal norms. This work investigates the relationship between democracy, judicial activism, neoconstitutionalism, separation of powers and reactive democracy, with a special focus on investigating fake news and its implications for procedural guarantees. The aim is to understand how these concepts interact and influence democratic practice and the power structure, evaluating whether judicial activism threatens or consolidates a more robust and inclusive democracy. The analysis, in the light of guaranteeism, will allow a reflection on the (il)legitimacy of judicial activism and the role of legal institutions in the construction of a fair and democratic society.