From term limits to overturning decisions: Congress will put the brakes on the STF

Four Constitutional Amendment Proposals (PECs) that suggest everything from establishing mandates to overturning decisions of the Federal Supreme Court (STF) are currently being processed in the National Congress. Through them, parliamentarians try to curb the actions of ministers, as they consider that there is interference by the Court in matters that fall within the competence of the Legislature.

The most advanced of them is PEC 08/2021, authored by senator Oriovisto Guimarães (Podemos-PR), which was approved last Wednesday (4) in record time – 40 seconds – by the Constitution and Justice Committee of the Federal Senate. This PEC limits monocratic decisions by higher court ministers, in addition to setting a deadline for requests for review of actions.

The offensive against what parliamentarians have called the “usurpation” of powers gained momentum after the Supreme Court overturned the time frame for the demarcation of indigenous lands, which had already been approved in the Chamber, in May of this year, and in the Senate, in September. The thesis provided that the transfer of areas to indigenous people would only be valid for lands that were already inhabited by indigenous people on the date of promulgation of the Constitution, October 5, 1988.

In response to this judgment and due to discussions in the STF on topics such as the decriminalization of abortion and drugs, deputies and senators joined various parliamentary fronts to protest against the STF’s interference in the Legislature, and ask the presidents of the Chamber and Senate to manifested themselves in favor of the balance between powers.

The movement included the obstruction of projects and pressure to advance customs agendas on the Houses’ agenda, such as the Proposed Amendments to the Constitution to impose limits on judicial activism.

PEC 08/2021 limits decisions and sets deadline for requests for review

PEC 08/2021 was approved by the Senate Constitution and Justice Committee last Wednesday (4) and is ready to be discussed by the Plenary of the Federal Senate.

The text prohibits the granting of a monocratic decision – when a single STF minister decides on some action – that suspends the effectiveness of a law or normative act with general effect; or that suspends acts of the presidents of the Republic, the Federal Senate, the Chamber of Deputies, or the National Congress.

In the case of a request made to the Judiciary during the Court’s recess periods, and which involves the suspension of the effectiveness of a law or normative act, it will be possible to grant a monocratic decision in cases of serious urgency or risk of irreparable damage, but the court must judge this case within 30 days after resuming work, under penalty of loss of effectiveness of the decision.

Processes that request the suspension of the processing of legislative proposals or that may affect public policies or create expenses for any Power will also be subject to these same rules.

The PEC, authored by senator Oriovisto Guimarães (Podemos-PR), also establishes that requests for review – when a minister asks for more time to analyze a certain process and it is suspended during that period – can only be granted collectively, and by maximum period of six months.

According to Oriovisto, the proposal is essential to prevent the Supreme Court from legislating in place of the National Congress. The senator says that there are a large number of decisions taken by a single minister and that they end up anticipating decisions and creating legal uncertainty, which is why they should be limited.

“The risks to the separation of Powers and the Rule of Law caused by thoughtless activism, by an erratic stance, unaware of limits and, above all, by actions that violate the principle of collegiality verified in the Federal Supreme Court are enormous”, states the senator.

Senators want to establish term time in the STF

Under analysis by the Senate Constitution and Justice Committee, PEC 16/2019 proposes setting a term of 08 years for the term of office of minister of the Federal Supreme Court. If approved, the measure will apply to the next magistrates who are appointed to the STF, that is, it does not cover current ministers.

Today, ministers hold a position for life, until compulsory retirement at age 75. The author of the proposal, senator Plínio Valério (PSDB-AM), was involved in a recent controversy with STF minister Gilmar Mendes, who criticized the proposal to establish a mandate.

According to Valério, the intention in presenting the PEC was “to promote a balanced and democratic view of the functioning of the STF”. “With a mandate, they will certainly feel like normal human beings, judges who will perform a role on the Supreme Court and who are subject to periodic evaluations and improvements,” he says.

The senator from Amazonas denied that the PEC is a “revanchism” against the STF and reinforced that the proposal was presented in 2019. “I firmly believe that the implementation of mandates for Supreme Court ministers will contribute to revitalizing the STF and improving our democracy”, he said.

Another measure presented last week in the Senate also seeks to establish mandates for STF ministers. Senator Flávio Arns (PSB-PR) filed PEC 51/2023, and suggests a 15-year term for ministers, in addition to raising the minimum age for a person to take up a position in the Supreme Court from 35 to 50 years old.

“It makes no sense for the process of choosing STF members and the length of time they remain in office to continue to be tied to a model from the end of the 19th century,” said the senator from Paraná. The proposal will be forwarded to the Constitution and Justice Commission for analysis.

The president of the Senate, Rodrigo Pacheco (PSD-MG), spoke about the proposals and denied that there is a “crisis” between the powers. In an interview last week, he maintained that the debate on fixed terms of office for STF ministers is not “irrational” and is adopted in other countries, in addition to being a thesis defended by various sectors within the Judiciary itself.

In the Chamber, PEC allows overturning STF decisions

Just as senators are dissatisfied with the discussions in the Supreme Court on matters within the Legislature’s jurisdiction, deputies also sent a message to the STF by filing Constitutional Amendment Proposal 50/2023, by deputy Domingos Sávio (PL-MG).

The PEC had the support of parliamentarians from different parties and allows deputies to present a draft legislative decree to modify decisions of the Federal Supreme Court.

“This already exists in the relationship between the Legislative and the Executive, it already exists in the relationship between the Judiciary and the Legislative – if a deputy commits a crime, he can and should be arrested, if Congress approves an unconstitutional bill, the Supreme Court has the power to revoke. And if the Supreme Court, through some of its ministers, makes an unconstitutional decision, what do you do? There was no remedy in the Constitution for that”, said Sávio about the PEC.

The deputy states that the proposal does not take away prerogatives and does not offend the STF. According to him, when the Court’s decision goes beyond constitutional limits, Congress may – by constitutional and qualified majority, of 3/5 in two rounds of voting in the Chamber and the Senate – revoke this STF decision. The proposal will have to be analyzed by the Constitution and Justice Committee of the Chamber of Deputies.