Lula seeks STF to compensate for lack of base in Congress

Under the pretext of holding an end-of-year celebration, President Luiz Inácio Lula da Silva (PT) participates in a dinner with the ministers of the Federal Supreme Court (STF) on Tuesday night (19), at the residence of the president of the Corte, Luís Roberto Barroso. The meeting celebrates the alliance between the head of the Executive and the leadership of the Judiciary, which began even before he took on his third term – and which should expand in 2024. The partnership in favor of enabling the interests of both sides was reinforced by the Minister of Justice, Flávio Dino, who takes office at the STF in February. He is even invited to the strategic meeting for the direction of the Republic.

Faced with the series of impasses faced in Congress, Planalto seeks to build governability through harmony with STF ministers. Whether to block the advances of right-wing agendas, to obtain judicial decisions favorable to the Union to collect more taxes or to maintain pressure on his main opposition group, linked to former president Jair Bolsonaro (PL), Lula has been intensifying consultations with ministers of the Court, such as Alexandre de Moraes, Gilmar Mendes and his former lawyer Cristiano Zanin. In the contacts intensified in recent days, the president reached agreements, such as the appointments of Dino to the STF and Paulo Gonet to the Attorney General’s Office (PGR), approved by the Senate on Wednesday (13).

For next year, Lula is already showing interest in several issues that will soon be on the agenda of the magistrates’ plenary session, including the revocation of his vetoes on payroll tax relief in 17 economic sectors and the project that restores the time frame for indigenous lands , suspended by the Court itself.

Experts consulted by People’s Gazette they see an unprecedented environment of cooperation between the Executive and the Judiciary. Political scientist Leonardo Barreto called the phenomenon that emerged during the PT administration “judicialization presidentialism”, which combines judicial activism in recent years with satisfying the interests of the President of the Republic and the STF.

Barreto explains that the country has seen presidential arrangements since redemocratization, such as the classic coalition model, with the sharing of spaces in the public machine to parties added to the parliamentary base. This governance has recently descended into co-option and informal and shameful semi-presidentialism. The deep ideological division between the conservative-dominated Congress and the left-wing government, in addition to the impediment for the Planalto to manage amendments to solidify benches in the Chamber and, above all, in the Senate, forced Lula to seek to recover the power lost to the Legislature by negotiating positions with the Centrão .

Government seeks to reverse defeats in Congress with actions in the STF

With important measures approved, such as the fiscal framework and tax reform, in addition to points on Minister Fernando Haddad’s (Finance) fundraising agenda, there are those who think that Lula managed to prevail. But most analysts emphasize that these important agendas were authored by the Legislature itself and that the victories celebrated by the government were loaded with the interests of the parliamentarians themselves. Leonardo Barreto emphasizes that parties have always gone to the STF in search of a “third round” of votes, a procedure normally used by the opposition and never by the government. “In this sense, there is now an escalation in the deterioration of relations between the Executive and the Legislative with interference from the Judiciary”, he warned.

A clear illustration of the Planalto-STF partnership was seen at Palácio do Planalto during the warm reception given to Minister Alexandre de Moraes, last Monday (11), to participate in the launch of a program for homeless people. The initiative launched by Lula is the result of Moraes’ order for federal, state and municipal governments to welcome the homeless population with social actions, in addition to prohibiting forced removals of these people.

When taking the pulpit to speak, Moraes smiled when he heard the PT militants shout “Xandão, Xandão” and “no amnesty, no amnesty”, in an appeal for Bolsonaro and his political group to be punished. The brotherhood also set the tone for the reaction of the first lady, Rosângela Lula da Silva, to Janja, when predicting on Saturday (9) Bolsonaro’s imminent arrest “if everything goes well”. On Tuesday (12), Moraes took over the investigation into the case of the hacker who invaded Janja’s account on X (formerly Twitter).

Judicialization and persecution of Bolsonaro supporters favored Lula

“Judicialization presidentialism” has already borne fruit during the government transition, with the breach of the spending ceiling and the annulment of the rapporteur’s amendments (RP9). Then came the correction of the FGTS index, the removal of precatório payments from the fiscal target, the imposition of the union contribution, the time frame, the cancellation of the State Law, the annulment of the Odebrecht judgment and, now, possibly the exemption of the payroll and again the time frame. “It’s not a small agenda”, stressed political scientist Barreto.

Committed to facilitating contacts with STF ministers, including André Mendonça and Nunes Marques, appointed by former president Bolsonaro (PL), Lula distributes affection, honors and applause to the “hunt for Bolsonaro supporters”. Last month, Lula called Nunes Marques to inform him that the minister’s supporter, judge João Carlos Mayer Soares, would be appointed judge of the Federal Regional Court of the 1st Region (TRF-1). More recently, in a gesture to Planalto, Nunes Marques asked for another 90 days (visit) to vote in the judgment on the constitutionality of the State Law, which prevents politicians from participating in these companies.

Senate reacts against judicial activism and was contained by agreements

Recently, the Senate and the Supreme Court exchanged barbs after the approval by senators of the Proposed Amendment to the Constitution (PEC) that limits the powers of the Court’s ministers. Interestingly, Flávio Dino stated on Wednesday (13) that he has an “undeniable commitment” to harmony between the Powers and that the action of the Judiciary to revoke the effects of a law approved by Congress should only be done in “very exceptional situations” and “preferably by collegiate decisions.” The minister took advantage of his hearing at the House’s Constitution and Justice Committee (CCJ) that day to alleviate tensions with the Legislature, valuing the Legislative’s activities. According to him, “the Brazilian system is bicameral and not tricameral”.

Ministers of the STF classified the Senate’s approval of the PEC of individual decisions as an “attack” by the Legislature and stated that this would harm the Court’s dialogue with the government, whose actions were crucial for the approval of the matter, in the opinion of judges. In the Senate, the government leader in the House, Jaques Wagner (PT-BA), voted in favor of the proposal. The gesture was seen as decisive for the text to pass, as it was approved with just three votes, precisely the three from the Bahian bench.

Thinking aloud about the model of association between the Executive and the Judiciary, Lula even suggested making all the votes of STF ministers secret, which was widely criticized, including for its incompatibility with the constitutional principle of transparency. The president argued that ministers need to be protected from society’s negative reactions. The Minister of Justice, Flávio Dino, was one of the few voices who considered the thesis subject to discussion. Government and Congress also favored the Supreme Court ministers by including in the 2024 Union Budget the coverage of all their expenses with air tickets on unofficial trips.

Jurists point out convergence of interests of STF and Planalto

Constitutional lawyer André Marsiglia laments that the Judiciary is actually coming to Lula’s aid to guarantee governability threatened by the president’s difficulties with the Legislature, in addition to attacking common enemies. “I have said that the STF has no other ideology than to maintain the power gained in recent times. Thus, the Court partnered with the government, realizing that they shared interests: the Supreme Court feared the institutional crisis in the Bolsonaro government and PT wanted to criminalize Bolsonarism to return to power”, he said, remembering that the STF’s decisions “not only they sank the opposing ship, as the government maintains.”

For lawyer and professor at PUC-SP Adilson Dallari, Dino’s move to the STF is part of the government’s intention to increasingly use the court’s decisions in its favor. “The scheme will be consolidated if the former minister of the Court, Ricardo Lewandowski, Lula’s eternal squire, goes to the Ministry of Justice”, he highlights.

In the same vein, lawyer Ricardo Peake Braga, professor and author of the book Juristocracy and the End of Democracy (EDA, 2021), does not yet see combined actions between the Judiciary and Executive, but it is a “great possibility”. “Without a doubt, the STF is more receptive to the Executive’s interests than in the previous government, but I don’t know how long this honeymoon will last. At some point, interests may conflict,” he said.

Constitutionalist professor Vera Chemim recalls that the strengthening of the STF in recent years reflects dysfunctionalities in Congress, such as the fact that the majority of members are involved in processes under the jurisdiction of the Court and, therefore, fear retaliation of a political nature. Furthermore, the legislative omission on several constitutional provisions gave rise to judicialization, especially by minority parties, making what should be the exception the rule.

“Sensitive issues linked to fundamental rights are frequently prosecuted due to gaps in legislation. In democratic regimes, the rule is to serve the majority of society through their representatives in the Legislature, with the possibility for minorities to appeal to the courts. In Brazil, the possibility has become trivialized, exacerbated by political polarization,” he explains.

According to the jurist, the STF acquired even more power in relation to the Executive and Legislative branches throughout this process. The actions of Operation Lava Jato, the rise of the right to power and the consequent political polarization, the health crisis and the return of the left to power, concomitantly with the acts of January 8th, put pressure on the Court to decide the multiple demands of a political and which contributed to the gradual increase of its intervention, both in the Executive and Legislative branches, leading to judicial activism, with the imposition of procedures on the government and the initiative to “legislate” in place of Congress.