Limiting party actions in the STF can mitigate activism, say jurists

The trend towards the judicialization of politics, which has gained strength in recent years especially due to the initiative of left-wing parties taking issues that would fall to the Legislative and Executive Powers to the Judiciary, may soon be faced with a reaction from Congress. The President of the Chamber, Arthur Lira (PP-AL), signaled that he is considering proposals to reduce the use of Direct Actions of Unconstitutionality (ADIs) by political parties.

At the beginning of November, during an event organized by a bank, Lira defended the need to “raise the bar” to limit the possibilities of Direct Unconstitutionality Actions (ADIs) in the Supreme Court. He said he had already presented a proposal in this regard to the president of the Senate, Rodrigo Pacheco (PSD-MG).

“I’ve already spoken to President Pacheco a few times: we have errors in the formulation of who can take direct action against unconstitutionality in Brazil. An issue cannot be approved in the Chamber with 480 favorable votes, be approved in the Senate with 75 out of 80, and a party with a representative enters with an ADI, and this ADI is judged in the Supreme Court and, often, a parliamentarian changes the will of five hundred or so people”, he stated.

Lira not only pointed out the problem, but also revealed that concrete proposals are being discussed to solve it: “I have already proposed to President Pacheco that Congress present that we have to raise the bar on the ADIs proposal. In other words, political party, to present ADI, respecting democracy, has to have at least 20%, or 20% support [de representantes no Congresso]to propose that that law approved in its entirety be modified”.

Direct Unconstitutionality Actions are requests for the Supreme Court to judge the constitutionality of a federal or state law or normative act. When judging ADIs, the STF makes an abstract analysis of the matter questioned, without evaluating the application to a specific case. The decision has a binding effect on the Judiciary and Executive powers in all spheres, in addition to being retroactive, with impacts on several sectors.

In the view of jurist Adriano Soares da Costa, a specialist in Electoral Law, Lira’s idea is welcome, because there are political parties using the Judiciary as an alternative to their electoral failure. There is, says Costa, a “fraud of the democratic system of party representation”. For him, the parties “try to overcome their condition of minority representation in the Legislative Houses, obtaining judicial decisions to replace the legislation that they are unable to implement through democratic and political means”.

The jurist remembers in particular what happened during the Bolsonaro government, when left-wing parties such as the PSOL and the PT made, according to him, “wide use of typical constitutional actions to implement public policies in accordance with their ideology or to avoid government measures that, through democratic means, they would not be able to obstruct it”.

“The STF began to enter into matters typically of a legislative nature provoked by political parties and without exercising self-restraint in jurisdictional activity, in exaggerated and inappropriate activism. It was through the action of the PSOL, for example, that the STF carried out an anomalous and undue federal intervention in public security in Rio de Janeiro, preventing police operations in favelas taken over by crime, with the population hostage to banditry. The State of Rio de Janeiro began to be supervised by the STF in the area of ​​security, thus, on the original initiative of a party minority politician”, he comments.

Lira’s idea could be a reaction not only to left-wing parties, but also to the New

As a report from the People’s GazetteLira’s idea displeased not only the left, which has joined the majority of ADIs that reach the Judiciary, but also the small right-wing Congress party, Novo.

The leader of the party, Adriana Ventura (SP), told the reporter that taking away the right of any party to activate the STF through ADIs would be another “attack on Brazilian democracy”. “We cannot restrict the right of a party to represent its voters in anything, much less in important actions that imply defending the Constitution”, she commented, making the reservation that she agrees that it is necessary to improve the rite of analysis of ADIs.

Recently, together with the Brazilian Institute of Law and Religion (IBDR), Novo took ADI 7426 to the Supreme Court, questioning new rules from the Federal Council of Psychology (CFP) that prohibit associating the professional activity of psychology with religious beliefs. According to the party, the norms directly harm the secularity of the State and violate principles of the Constitution such as the dignity of the human person and freedom of conscience and belief. The case, distributed to Minister Alexandre de Moraes, has not yet gone to trial.

Janaina Paschoal, former state deputy (PRTB-SP) and PhD in Criminal Law from the University of São Paulo (USP), is in favor of the discussion about limiting ADIs, but raises doubts about Lira’s intention in raising the topic only now. For her, this could be “a way of shielding the Lula government, for example, from the combativeness of a party like Novo”.

“I am very critical of this culture of infantilization of the Legislative Branch. I always have been. Not to mention the risk of a political party being used as a law firm. However, I find it intriguing that no one raised this discussion in the previous government, when [o senador] Randolfe [Rodrigues (REDE-AP)] I petitioned the STF every other day”, he comments. “I have doubts as to whether the objective is really to limit judicial activism”, he adds.

She recalls that Lira was already president of the Chamber with Bolsonaro in power, and asks: “Only now has this bothered you? Rescue the Network’s numerous initiatives, including Senate advisors advocating for what we have done. I have never seen Lira criticize.”

Even with these reservations, Janaina believes that the discussion about ADIs and the judicialization of politics “needs to be done”.