5 problems in Gilmar Mendes’ speech on PEC that limits ministers

Minister Gilmar Mendes, of the Federal Supreme Court (STF), used the body’s plenary session, this Thursday (23), to give a speech (read in full) repudiating the approval by the Senate, the previous day, of PEC 8/ 2021, aimed at limiting individual decisions in the Judiciary.

The minister’s speech, as well as that of the president of the court Luís Roberto Barroso, generated repercussions in the press and on social media and was considered an incisive political response from the STF to the Legislature, in a context in which the opposition (with the discreet support of part of the government) articulates itself to react to what it sees as excesses in the STF’s actions.

In his criticisms of PEC 8/2021, Minister Gilmar made several mistakes.

1. The Judiciary does not have veto power

The minister argued that the PEC “does not have any plausible justification”, as the STF had already drawn up its own regulatory rules on the matter and this would demonstrate the “absence of any normative vacuum that legitimizes it”.

Judging whether or not a bill has “justification”, and whether or not it is better than the current standard made by the STF, is a political assessment, not a legal one. This is because it does not ask whether the idea contradicts the Constitution or not: it is a subjective opinion about what should be politically implemented in the country, within the infinite field of possibilities allowed by the Constitution.

In a representative democracy, and according to the Brazilian Constitution, those who have the prerogative to make this type of judgment are the elected representatives – including the president, who has political veto power over a proposal that he considers unjustified. The STF does not have veto power. If the law is followed, its members may even criticize the convenience of the proposal, like any other citizen, but they will not be able to use this basis in the eventual exercise of office, to exclude the rule from the order.

2. Preventing the impeachment of STF ministers would give the Court unlimited power, as in an absolute monarchy

Regarding the possibility of initiating impeachment proceedings against members of the court, the minister announced that any such proceedings “will have to be subjected to judicial scrutiny” to bury “stupid accusations”.

Also in this case, however, the prerogative to judge whether the accusation is “mambembe” or valid was not attributed by the Constitution to the STF, but to the Federal Senate.

Attributing this function to the STF would, in fact, be contrary to the spirit of the very existence of constitutions, which historically emerged to limit the exercise of power through external rules and controls. If the Senate could not judge the impeachment of ministers (the only form of external control that exists for the STF), the court would have unlimited power, incompatible with the Democratic Rule of Law, similar to that of an absolute monarchy.

3. The PEC does not prevent the Judiciary from limiting other powers

The same principle of checks and balances is invoked by Minister Gilmar himself, but to state that PEC 8/2021 would put him at risk, by harming the Judiciary’s ability to review the acts of other powers.

This allegation is not valid, precisely because, contrary to what is insinuated, the PEC maintains intact the external control of the Executive and Legislative branches by the Judiciary, including by the STF. What changes is just the way in which this will be done: instead of allowing a magistrate, for example, to suspend alone, by monocratic (individual) decision, a law that has just been approved by Congress, it will now be required that the collegiate body (i.e., composed of several members) vote jointly (with the participation of the magistrate in question) so that the same law can be suspended.

This requirement for a collegiate decision is not even new in the legal system; It is already provided for, in some cases, by the Constitution, which only adds new hypotheses to the same article in which the prediction was already made.

4. The Judiciary can also be an authoritarian threat

The minister said: “Dictatorships are always deplorable, and they can exist with the Executive or the Legislature as a framework.”

The minister left the power he is part of out of the formulation; on the contrary, he then treated it as a democratic antidote, and, echoing the current president of the Court (minister Luís Roberto Barroso), as a fragile power to be defended as a priority, as it is always attacked by would-be dictators.

However, the risks to democracy and political freedom are increasingly recognized as also being able to come from the Judiciary. Some excesses committed by the STF in recent years against ordinary citizens, such as businesspeople and journalists, not respecting principles such as dual jurisdiction or natural justice, and mechanisms of the Criminal Procedure Code, corroborate this thesis.

Including the American newspaper The New York Times has already published multiple articles expressing concern about the actions of the STF itself in this regard. The newspaper suggests that, under the pretext of defending democracy, the court issued decisions unilaterally increasing its own powers and became a threat to democracy in its own right.

Furthermore, several STF ministers have already publicly expressed their understanding that this court, specifically, in addition to being part of the Judiciary, would also constitute the so-called Moderating Power, not provided for in the Constitution. Therefore, it is not enough to ask about the Judiciary Power, it is also necessary to ask whether this other power, of which the ministers claim to be representatives, is a possible source of an authoritarian threat. The answer is positive: in political philosophy, the very existence of a Moderating Power (with its implicit supremacy over other powers) is often discredited as an authoritarian trait.

5. Parliamentarians saw an attempt at intimidation

The minister criticized “messages from the street” that he interpreted as supposed parliamentary insinuations to intimidate members of the STF, through threats of opening impeachment proceedings against one or more members.

The minister is right that, in certain cases, threats of abusive use of legal instruments can serve to intimidate a public agent in order to prevent him from acting in the public interest. However, the very fact that the minister recognizes the seriousness of this type of phenomenon should lead him to be more careful with his language, precisely to avoid misunderstandings of this kind caused by his own speeches.

In this sense, the minister caused controversy when he said: “the PEC does not prevent monocratic decisions in habeas corpusa mechanism often used to defend political agents who, just yesterday, came together to restrict the powers of the Constitutional Court.”

In so saying, the minister, whether he intended it or not, revealed that he had, at some point, made a mental note of which senators voted in favor of PEC 8/2021 and which of them had criminal cases being processed against them in the STF (including in the office of the minister himself). These processes are a potential circumstance of habeas corpus, a type of action in which a STF minister can, for example, order, or fail to order, the release of criminal defendants. For this reason, the speech caused discomfort in political circles.

As an example, substitute federal deputy Marina Helena (NOVO-SP) posted an excerpt of her speech on the social network X (formerly Twitter) with the comment “Parliamentarians, be careful”.

Whether the substitute’s interpretation is correct or not, the mere conjecture of the possibility already has the potential to cause, in itself, embarrassment to the free exercise of the parliamentary mandate; mainly in conjunction with other demonstrations, also worrying, that supposedly took place in Off by STF ministers to the press.

Whatever the result of the vote on PEC 8/2021, it is necessary for the Judiciary to respect the independence of the Legislature and for the Legislature to respect the independence of the Judiciary, each within their responsibilities. The role of the Judiciary is to interpret the text of the Constitution and that of the Legislature to decide what the text of the Constitution will be.