7 times the STF took on the role of other powers in 2023

The Federal Supreme Court (STF) worked hard in 2023, including unduly assuming the roles of the Executive and Legislative powers.

While the STF exceeded the competences established by the Constitution, parliamentarians made efforts to protect the competence of the Legislature. Issues such as the decriminalization of abortion and the use of marijuana made progress in the Court, even though the issues were only the responsibility of the National Congress. The court also defined a thesis that makes journalists responsible for the statements made by interviewees and, soon, should discuss the penalization of social media platforms for user statements, all topics that are beyond the jurisdiction of the ministers.

To advance on the Executive power, the STF adopted the thesis of “unconstitutional state of affairs”, an understanding that does not exist in Brazilian legislation, which would oblige the Court to act in the face of the alleged omission of the federal government, states and municipalities in relation to rights guaranteed in the Constitution . After being provoked by left-wing parties, STF ministers took over the “government” of the federation units in relation to the prison system and the situation of homeless people, imposing questionable public policies. In addition to violating the separation of powers, this action violates the legal principle of “reserving the possible”, when a public agent demands impossible measures.

See below some Supreme Court decisions in 2023 that went beyond the powers of the Judiciary.

1) Decriminalization of abortion

The STF began the trial of ADPF 442, an action presented by PSOL that calls for the decriminalization of abortion up to the 12th week of pregnancy. Before retiring, former president Rosa Weber guided the action in a virtual session to declare her vote in favor of the practice.

According to Lília Nunes, lawyer and master in Human Rights, the STF should recognize Legislative competence on the matter, instead of making a decision for which it was not elected. “Legislative competence is a exclusive competence of the Brazilian Parliament, especially when it comes to issues relating to criminal practices”, stated Lília Nunes.

The Court alleged that the National Congress was omitted on the issue, which is not true: bills were presented that sought to decriminalize abortion, but they were rejected by parliamentarians, which reflects the desire of the majority of the population on the issue.

Both the PSOL petition and Rosa Weber’s vote open loopholes for abortion to be practiced up to the ninth month of pregnancy. This is because both adopted the understanding that the unborn child should not be considered a “constitutional person”, which implies that they should not have access to fundamental rights, such as the right to life. It is up to the current president of the STF, Luís Roberto Barroso, to decide when the topic should return to the agenda.

2) Decriminalization of marijuana

An action that could decriminalize the possession of marijuana for personal use in Brazil is also being judged by the Supreme Court. Jurists, including those in favor of the release of drugs, point out the unconstitutionality of the issue being considered by the STF.

“Personally, I am in favor of decriminalizing drug possession, but it is not up to the Supreme Court to decide on this. But, unfortunately, the Supreme Court has been making decisions on all kinds of issues in recent times”, said the doctor in State Law and professor of Criminal Procedural Law, Rodrigo Chemim, in an interview with Gazeta do Povo in May.

The score is 5 votes to 1 in favor of decriminalization and some of the ministers even considered expanding decriminalization to other drugs in addition to marijuana. In addition to defining things outside of their own competence, ministers deny the evidence about the negative impacts of drugs on public health.

In response, the Federal Senate presented PEC 45/2023, which adds provisions to the Federal Constitution related to the criminalization of possession and possession of narcotics. The president of the House and proponent of the PEC, Rodrigo Pacheco (PSD-MG), criticized the progress of the process by the STF and said that there is an “invasion of the competence of the Legislative Branch”. Despite this, the PEC did not make considerable progress in the Senate.

3) Time frame for indigenous lands

In September, the STF overturned the thesis that defines a time frame for the appropriation of indigenous lands, which should also be decided by federal deputies and senators. Until then, the cession of areas in favor of indigenous people would only be valid for lands that were inhabited by tribes before 1988, the year in which the Federal Constitution was promulgated.

The lack of time limits for considering an indigenous land (which can go back to 1500) brings legal uncertainty to rural producers. Indigenous organizations can demand the expropriation of rural areas at any time, claiming that those lands would have been occupied by indigenous people in the past. In addition to burdening the Union, responsible for possible compensation.

Parliamentary fronts and parties formed a bloc to act against the STF’s interference in National Congress agendas. At the end of September, a bill that established the time frame for the demarcation of indigenous lands was approved. President Lula sanctioned the law, vetoing some parts of the text. But the vetoes were overturned by the National Congress.

4) Thesis that holds journalists responsible

Another decision of the Court that would be up to the Legislature was the thesis that makes journalists responsible for statements made by interviewees. With the use of vague terms such as “concrete evidence”, experts believe that the STF’s thesis could generate self-censorship in the press. For fear of publishing content that could harm them, newspapers are more likely to avoid publishing information.

The decision harms press freedom, which is guaranteed by the Federal Constitution. The penalty is not restricted to journalists, but to society as a whole, which may have less access to relevant news. Such as People’s Gazette showed, the country’s laws already allow anyone who feels attacked by an interview to file a lawsuit for insult, slander and defamation.

5) Removal of content from social networks without a court order

STF ministers have already indicated that they consider it necessary to regulate social networks, whether through the Legislature or the Judiciary itself. Threats to vote on the PL from Fake News were around the last sessions of the Chamber of Deputies in 2023, but were not confirmed. Still, the STF can judge actions that could interfere with freedom of expression on social networks in 2024.

The Court may also decide whether the big techs may or may not be responsible for content published by their users. Which in itself could further affect the persecution of speeches against the ideological agendas supported by the Supreme Court.

The court was called, in two actions, to judge whether article 19 of the Marco Civil da Internet violates the Constitution. The provision defines that companies can only be punished if they do not remove the content after a court decision. According to the text itself, the judicial mediation required by the provision is intended to “ensure freedom of expression and prevent censorship” – in other words, that content be punished arbitrarily, even if it is not criminal.

Google and Facebook were ordered to pay fines for the time that offensive publications were up, before a court decision forced their removal. If the STF considers article 19 unconstitutional, the tendency is for companies to start implementing tools to take down content considered dangerous.

In addition to offenses, the decision may also affect publications that criticize authorities, public bodies and social minorities. Among recent decisions in this regard, the Superior Electoral Court (TSE) demanded the removal of content that suggested distrust in the electoral system or electronic voting machines.

6) Improvements in the prison system

Based on the “unconstitutional state of affairs” thesis, the Supreme Court forced the Executive branch at all levels to develop public policies in favor of the Brazilian penitentiary system. According to the understanding, questioned by jurists, the STF imposed on the president, governors and mayors to prioritize the implementation of measures and use of resources in the prison system.

In addition to violating the role of other powers and the federative pact, the decision violates the legal principle of “reserving what is possible”, when it is impossible to comply with a law. “There is a rule within the law that you cannot demand a performance that exceeds what is possible,” explains Fabricio Rebelo, a specialist in public security. The problems of prison systems are complex, which consequently makes it difficult to find effective solutions.

7) Homeless people

With the same thesis of the “unconstitutional state of affairs”, the Supreme Court also decided that states and municipalities cannot remove street residents from public spaces, nor collect their belongings against their will. By accepting the request of Rede and PSOL, the ministers once again invaded the competence of governors and mayors by interfering in their duties.

Moraes gave the federal government a deadline of 120 days to formulate public policies in favor of homeless people, such as offering jobs, shelter and access to social programs. States and municipalities must also be involved in the initiatives. At the end of the year, at an event with President Luiz Inácio Lula da Silva (PT) and left-wing movements, Moraes was applauded for his decision.