Ives Gandra sees the STF acting with an “invasion of jurisdiction” over the Legislature

Lawyer Ives Gandra, known for critical theses on the conduct of work at the Federal Supreme Court (STF), stated that the Court has been acting with an “invasion of jurisdiction” over the Legislative Branch, something that goes against what the Constitution of 1988 which establishes the full and independent separation of Powers.

The jurist’s thesis is the same as that alleged by Brazilian congressmen, with whom the STF ministers entered into a collision course from the moment they began to judge issues considered sensitive to society, such as abortion, the time frame for the demarcation of indigenous lands, the decriminalization of marijuana possession, among others.

This supposed invasion of powers was responded by Congress with the proposition of limits on the Court’s ministers, such as restrictions on monocratic decisions – already approved by the Senate and awaiting analysis by the Chamber of Deputies -, the imposition of a specific term of office and the increase minimum age for nomination. These proposals led to a harsh reaction from magistrates, which minister Luís Roberto Barroso (current president) and future magistrate Flávio Dino say want to put an end to.

But, for Ives Gandra, the STF has acted with full “invasion of competence” of ministers over the Legislative Branch. According to him, the root of the disagreement lies in the interpretation of the Brazilian Constitution, especially with regard to the powers of the Powers.

He emphasized that the constitutional text, drawn up during the Constituent Assembly, clearly outlined the functions of each Power, aiming to avoid invasions of competence. The Supreme Court, he says, would only be responsible for pointing out the omission and forwarding it to Congress to legislate, and not doing it on its own.

“When the Supreme forgets what they said [constituintes] and starts to interpret a principle according to the interpretation of 11 citizens elected by one man and not by 140 million Brazilians [na época da Congresso Constituinte]we are having an intervention in the Legislative Power on the part of the Judiciary,” he said in an interview with Power 360 published this Tuesday (26).

According to the jurist, the Brazilian political reality is very different from that of countries such as Portugal, Italy and Germany, where constitutional courts have functions closer to legislative ones. However, he highlighted that the Brazilian system is presidential, with a clear separation of Powers, which, in his view, reinforces the importance of the Legislature.

Although one has the impression that the Brazilian Judiciary began to act beyond its constitutional role more recently, Ives Gandra sees that it began much earlier, even during the beginning of the first Lula government, in 2003, with the simultaneous retirements of three STF ministers . He argued that since then there has been a growing trend of judicial interference in legislative matters.

“Normally, when the minister arrived, within six months he would start to reason as the Court reasoned. He adapted to that style typical of the Federal Supreme Court. But that [aposentadorias
próximas] fell out of step. The adaptation was not done as it would have been done in the past”, he said, citing the retirements of ministers Moreira Alves, Ilmar Galvão and Sydney Sanches.

For him, the “protagonism” of the STF increased especially between 2022 and 2023, “at the end of the Bolsonaro government and in this government of President Lula” in which the Supreme Court began to “decide what democracy is, who can be arrested, for political opinions.”

Constitution is specific, says jurist

Regarding Minister Luís Roberto Barroso’s allegation that the Brazilian Constitution is broad and requires more comprehensive interpretations, Gandra countered, stating that the Constitution’s breadth makes it more specific. He expressed disagreement regarding the interpretation of constitutional principles in a generic way, highlighting that this could lead to diverse and conflicting interpretations.

“In the case of abortion, there is article 124 of the Penal Code. It has to be changed by Congress. When the Supreme Court says ‘I’m going to discuss abortion and make a new law’, it is the Supreme Court that is legislating, not the Legislature. If it is to be done in principle, they can do everything, we no longer need the Legislative Power. They take the principle and make whatever law they want”, he said.

In this specific case of abortion, which began to be judged by the then president of the STF, minister Rosa Weber, the current president has already said that he should not consider it in the short term, as it is a sensitive topic that, he says, society is not mature enough to discuss it.

Regarding the proposal under discussion in Congress that limits monocratic decisions by the STF, Gandra expressed support, emphasizing the importance of collegial decisions for the safety of citizens. He highlighted that the Constitution establishes the STF as a collegiate body, and monocratic decisions that last over time go against this principle.

“Requiring the collegiate is a security for the citizen. It does not depend on the interpretation of one man alone. This is what is in the Constitution, in article 102. So [é necessário] eliminate the possibility of monocratic decisions that prevail for a long time, as if the Supreme Court had decided”, he added.

Finally, Ives Gandra shared the dream of seeing the STF recover its original role as guardian of the Constitution, without becoming a complementary or corrective Legislative Branch of the Executive. With respect to the current ministers, he expressed the hope that the Supreme Court could return to the prestige it enjoyed in the past, under the leadership of figures such as José Carlos Moreira Alves.