The world is discussing the consequences of the Brazilian Supreme Court in the medium and long term.
The Federal Supreme Court (STF) has been implementing a series of changes to Brazilian legislation and society, in line with its feelings and thoughts on what a democratic society is. By issuing Binding Precedent No. 13, it seems that the Supreme Court, in its unbridled activism, is legislating to the detriment of the National Congress.
It’s not just today that we’ve seen limitless judicial activism. The usurpation of the legislative function by the Supreme Court is not only making national headlines, but also international ones. The world is discussing the consequences of the Brazilian Supreme Court in the medium and long term. In this first act, we will increasingly deal with the Supreme Court’s invasion of legislation.
The newspaper Estado de S. Paulo highlighted the minister’s speech in which he reaffirmed that the perception that the STF is extremely activist is “quite mistaken”. What happens, in Barroso’s view, is that the Court plays a leading role due to the scope of the Constitution and, consequently, the issues that can be brought before the Justices.
Folha de S.Paulo highlighted a speech by the minister in which he noted that the country currently has 76 million pending cases – that’s one in every two adult Brazilians – and that the average time taken to process cases in the Federal Court is 5 years and 8 months, which he called “extremely unsatisfactory”.
The Federal Supreme Court has played an active role in Brazilian institutional life.
That’s right. The tripartite division advocated by Montesquieu was a milestone in human history. Dividing the functions of governing, judging and legislating into different people or bodies was and is an ideal for a strong and consolidated democracy.
However, the above model has been distorted over the years, either due to inefficiency on the part of the members of the bodies, or due to democracy maturing a little, or due to institutional failure.
In recent years, the Supreme Court has played an active role in Brazilian institutional life. In making some decisions on major national issues, it has generated both applause and criticism from various segments of Brazilian society.
Some critics accuse the Supreme Court of Judicializing its decisions and of Judicial Activism. To this end, judicialization is understood as the Supreme Court’s conduct in deciding certain issues of great political or social repercussion, and not by the traditional political bodies: the National Congress and the Executive Branch. The idea of judicial activism, on the other hand, is associated with a broader and more intense participation by the judiciary in the realization of constitutional values and goals, with greater interference in the sphere of action of the other two branches of government.
Supremocracy, banning nepotism
And it is precisely in the Supreme Court’s activist stance that I see a clear example of SUPREMOCRACY, when it makes direct application of the Constitution to situations not expressly contemplated in its text and regardless of the manifestation of the ordinary legislator, as it did in the case of the ban on nepotism in the three branches of government.
So, at this point we will analyze Binding Precedent number 13, see:
binding precedent no. 13
the appointment of a spouse, partner or relative in a direct, collateral or affinity line, up to and including the third degree, of the appointing authority or of a civil servant of the same legal entity invested in a position of direction, leadership or advisory, for the exercise of a position of commission or trust or even a gratified function in the direct and indirect public administration in any of the powers of the union, the states, the federal district and the municipalities, including the adjustment through reciprocal designations, violates the federal constitution.
The Court extended the ban on nepotism to the Executive and Legislative Branches, approving the aforementioned Precedent.
In a declaratory action of constitutionality filed by the Association of Brazilian Magistrates, the Plenary of the STF declared the constitutionality of Resolution No. 7, of 2005, of the National Council of Justice, which prohibited the appointment of relatives of members of the Judiciary, up to the third degree, to commissioned positions and gratified functions. It was understood that, regardless of a specific law, the prohibition should be drawn from the constitutional principles of morality and impersonality. Then, in an extraordinary appeal from the state of Rio Grande do Norte, which discussed the validity of appointing relatives of councillors and deputy mayors to public positions, the Court extended the prohibition of nepotism to the Executive and Legislative branches, approving the above-mentioned Precedent.
It can be seen that the Supreme Court, in issuing the Precedent in question, acted as a positive legislator and not a negative one, as the Constitution recommends. It usurped the primary function of the Legislative Branch. But it did so in the face of inertia, in the face of paralysis, in the face of the incompetence of the members of the National Congress.
It usurped the primary function of the Legislative Branch. But it did so in the face of inertia, in the face of paralysis, in the face of the incompetence of the members of the National Congress.
It is true that this judicial activism must find limits, not least because these actions, such as the example cited above, bring great risks to the country’s democratic legitimacy, since they misrepresent the legitimacy of millions of voters who put their representatives in power to legislate; they also bring harm by politicizing justice; and finally, they bring risks to the institutional capacity of the Judiciary, since it has an enormous overload of work, damaging the quality of its decisions, since every year there are, as Professor Oscar Vilhena Vieira rightly explained, millions of lawsuits seeking judicial protection.
The risks of judicialization and, above all, of activism involve democratic legitimacy, the politicization of justice and the judiciary’s lack of institutional capacity to decide certain matters. However, given the current scenario, it is imperative that the Court continues, at least until the lethargy of the other Powers is over, being the ultima ratio.