Barroso says Congress has “last word” on controversial issues

The new president of the Federal Supreme Court, Luís Roberto Barroso, stated this Friday (29) that, “as this is not a decision on an immutable clause, Congress, in essence, is the one who has the last word” on issues that have placed the Court and the Legislature on opposing sides, such as the validity of the time frame for the demarcation of indigenous lands, the decriminalization of drug possession for personal consumption and abortion up to the 12th week of pregnancy, mainly.

“He [Congresso] can always produce a constitutional amendment reversing an interpretation of the Federal Supreme Court. If it’s a permanent clause, it can’t. But outside of situations with a permanent clause – which are federation; secret, direct and universal vote; separation of powers; and individual, fundamental rights –, in other matters, the one who ultimately has the last word is the National Congress, through a constitutional amendment that can reverse a decision. It’s like this all over the world, it’s not a Brazilian phenomenon. Formally [o STF] It’s the last word, but it really isn’t, because it’s always possible to reverse it”, stated the minister in his first press interview as head of the Judiciary.

In another part of the interview, he also said he hoped that the aggressiveness that exists against the Court and ministers would “reduce” – largely due to the perception of interference in other powers.

This week, deputies and senators, mainly from the agricultural, security and evangelical/Catholic front benches, decided to obstruct the vote on all proposals in the Chamber and Senate plenary in protest against judgments that put an end to the thesis of the time frame for demarcation of indigenous lands; and that they can also decriminalize the possession of marijuana for personal use and also abortion up to the 12th week of pregnancy.

Barroso signaled that it is possible to reach solutions through dialogue between the Powers and greater clarification of society about the impact and extent of the STF’s decisions.

Asked about the PEC on the Balance of Powers, a proposal according to which Congress could overturn STF decisions by 3/5 of parliamentarians, he stated that “Congress can debate all the issues that it seems appropriate to debate”. “I don’t see a problem with the discussion. And detail: this prediction, of overcoming the Supreme Court’s decision, already existed in Brazilian constitutional law. It was in the Constitution of the Estado Novo, of the dictatorship of [Getúlio] Vargas, from 1937.”

End of the time frame has “less impact” than suggested

Regarding the issue of the time frame – thesis by which only lands occupied in 1988 by indigenous communities could be demarcated – the minister clarified that the STF’s decision established that it would not apply in those situations in which the tribes had been expelled from the region and continued trying to recover. -there. “If you left there and never came back, you can no longer claim that area,” he said.

For Barroso, the legal security of farmers who currently produce in these regions would not be affected, because if it is proven that they acquired the land in good faith, they will be entitled to compensation in the event of expropriation. “The repercussion of the news suggests something more dramatic than it will be and the impact is smaller than what is eventually suggested. There is ideologization of the issue,” he told journalists.

He avoided commenting on whether the bill approved in Congress that reestablishes the time frame could be overturned in the STF.

Barroso says drug policy has not worked

On the issue of drugs, the minister said that Congress has already “decriminalized” possession when, in 2006, it abolished prison sentences for users, determining only, in case of conviction, that they receive warning about the effects of use, be subjected to the provision of community services and educational measures.

“Basically what the Supreme Court is doing is defining what quantity will be considered possession and what quantity we will consider trafficking. This is the responsibility of the Supreme Court, because the judge is the one who arrests. The police can arrest the person in the act, but they must immediately submit it to the judge. It was my original vote back there and what it looks like will now gain a majority is to establish what quantity will be considered possession and what traffic, so that it is not the police officer on duty who makes the decision. Because, in practice, as was my vote and that of Minister Alexandre [de Moraes], what happens is that in rich neighborhoods an amount X is considered possession and in poor neighborhoods the same amount X is considered trafficking. Therefore, to end this discrimination against poor people and people from the periphery, we want to establish a judicial criterion, and not a criterion that each police officer will determine,” he said.

“We are not changing the policy established by Congress, we are giving guidelines to the police, if and when they can arrest for trafficking. It is very important to clarify this: there is no interference with the power of Congress, the Supreme Court is deferential to Congress’s competence in legalizing or delegalizing drugs”, he added.

He added that it is necessary to debate drug policy, as for him, it is “responsible for the hyperincarceration of poor and primary school youth with good backgrounds in Brazil”. “What we are doing is not working. Trafficking dominates important parts of the Brazilian State and the policy that has been practiced is to arrest poor children from the outskirts for small amounts of drugs. You put this young man in the penitentiary system, as soon as he enters, tragically, he has to join a faction, because it is a matter of survival for him, he will be imprisoned for 1, 2, 3 years, he will come out worse than when he entered, the place he he occupied cost money, and the position he occupied in the drug trade was replaced the day he was arrested.”

Congress must address abortion “too”

Regarding abortion, Barroso said that it is a “controversial issue all over the world”, and in some countries the issue has been resolved in constitutional courts and in others in Congress, by law. “I think it’s perfectly normal for an important and divisive societal issue like this to be debated in Congress as well. So I don’t think this is a problem and I don’t think it’s an issue that can be taken forward without a relevant public debate,” he said.

He, however, did not rule out a decision by the STF on the matter. Asked if he intends to guide the action that could expand permission for the practice, he stated that he “may” put the case for deliberation in the Court. “This is an action that was proposed before the Federal Supreme Court. In Brazilian constitutional law, there is no possibility for the Supreme Court not to judge the matter because it says it is too difficult. Therefore, everything that arrives here at the Supreme Court has to be judged. How it will be judged is another question. […] O timing belongs to the presidency [do STF] to determine. It arrived here, we will judge”, he said.

He later added that the debate should be deepened as it is “a delicate issue because it involves people’s respectable religious feelings and in a democracy everyone deserves respect and consideration, even if they think differently than us”.

“You lost, mané” and “we defeated Bolsonarism”

Barroso was also asked about recent statements that caused fury from his critics on the right – such as “you lost, mané”, said last year, in New York, to voters of former president Jair Bolsonaro who were suspicious of electronic voting machines; and “we defeated Bolsonarism”, said in a speech at the UNE congress in Brasília, in July this year.

The minister said that “they were phrases in moments of great aggressiveness, radicalization, offenses”, a situation in which, according to him, “generally people do not present themselves at their best, they are exceptions”. After self-criticism, he said that the situation in Brazil has changed, saying that until recently he did not suffer insults in public environments.

“This aggressiveness thing is very recent in Brazilian life and I have great hope that this will recur and the context that led to these statements will not be reproduced,” he said. When asked if he regretted it, he did not confirm. “I regret that this happened. At the UNE congress, I used one word when I wanted to use another. I meant extremism, no [me referir] to the people who voted for the former president.”

Fiscal responsibility

Barroso was questioned by People’s Gazette if it is intended to implement an agenda in the STF that signals the need to preserve fiscal responsibility. The minister is a defender of the balance of public accounts and has already said that this is an agenda that should be consensual between left and right for the good of the country’s economy.

The minister disagreed with the perspective, expressed in the question, of market distrust in relation to the current government’s commitment to fiscal responsibility, and demonstrated optimism in relation to some reforms presented.

“I’m not going to question your assumptions about discrediting economic policy or not. Possibly I wouldn’t agree with them. I think there is a tax reform underway, which will be a very important transformation in Brazil. I think there was discussion about the relevant tax framework. I saw unemployment rates decrease, there was a relatively significant increase in investments in the Brazilian stock market, there was a reflux due to international issues. So perhaps I wouldn’t work with the same premises that you did. However, I think, I have already said this, that fiscal responsibility really has no ideology, it is an important premise of healthy economies and I continue to think so”.

In relation to specific cases, he highlighted just one action, with a suspended judgment, which could increase the workers’ FGTS balance. Barroso has already voted to correct the balance using the savings account index, not the Reference Rate, which is lower.

“It is necessary to avoid economic horror, but also legal horror. It seemed to me that remunerating the worker’s savings, which guarantees him in the event of dismissal or to be withdrawn at the end of his life, unless the passbook, which is the worst profitability on the market, given that in the FGTS the liquidity is even lower, is unfair. The counterpoint is that the money is used for housing projects for low-income families, which is a very important destination, but perhaps this money should be taken from somewhere else, and not from the worker’s savings. Therefore, fiscal responsibility is very important, we must pursue it, but not at the cost of injustice”, said the minister.

Freedom of expression

Barroso was also questioned, by People’s Gazette, if there is a plan to bring to the plenary, for discussion by all ministers, decisions by Minister Alexandre de Moraes that suspended users’ profiles and accounts on social networks, determined in the fake news and digital militias investigations. The president of the STF did not respond to the question.

In the interview, he defended the program, which he implemented at the TSE, to “combat misinformation”, which aimed to refute and deny accusations of fraud in electronic voting machines, through enlightenment campaigns.

“We faced misinformation that we thought would destabilize democracy. We do not take care of misinformation between candidates, as this was a problem treated differently through provocation of the affected candidate and judgment by the TSE plenary”, he said, this time referring to decisions that, in many cases, removed publications and profiles from networks. social networks on the internet.

Afterwards, Barroso said that something similar will be done in his presidency of the STF. “Disinformation that compromises the image of the Supreme Court, or that compromises democracy, we will continue to face. Now, freedom of political expression, where it is manifested in an abusive or exacerbated way, there are other means to be addressed. Our option is for quality education and information, and not exactly for repression”, he explained.

In another part of the interview, the minister said he supports the fake news bill, which is stalled in Congress and could increase the liability of digital platforms for harmful content posted by users – there is also an action to be judged in the STF with this objective.

“We agree that there cannot be pedophilia on the internet, the sale of weapons, drugs, or that there cannot be hate speech against people and institutions,” he stated.

He also said he is in favor of remuneration, through social networks, for journalistic content, produced by the professional press, which circulates on the platforms, as a way of encouraging quality information and providing a “universe of common facts” in the public debate.