Mendonça acted as AGU in the timeframe process – 06/19/2023 – Environment

The minister of the STF (Federal Supreme Court) André Mendonça represented the Jair Bolsonaro government in the time frame process, which is on trial in the Court, when he headed the AGU (Attorney General of the Union). In the case file, he defended the thesis that restricts the demarcation of indigenous lands.

The trial of the timeframe was resumed on the 7th, but was again paralyzed after the minister asked for a review, that is, more time for analysis. With that, Mendonça won a period of 90 days (which must be added to the recess of the Judiciary, in July) to return the action to the plenary.

So far, the scoreboard has two votes against the thesis, by Edson Fachin and Alexandre de Moraes, and one in favor, by Kassio Nunes Marques.

Members of organizations that follow the case criticize the minister for not declaring himself barred from trying him and see the request for review as an attempt to delay the decision.

Mendonça was approached by the report, through his office, to comment on the criticism, but did not respond until publication.

In the action, the STF analyzes the constitutionality of the temporal framework thesis, which states that the demarcation of indigenous lands must respect the area occupied by the peoples until the enactment of the Federal Constitution, in October 1988. to date or had no open litigation at the time could not claim them.

In the indigenous view, the thesis validates invasions. Ruralists, on the other hand, argue that the determination would serve to resolve disputes over land and would provide legal and economic security for investments in the countryside.

The position of the ruralists was also defended by Bolsonaro — and was reproduced by Mendonça in his position as attorney general of the Union in the same action that is now being judged in the STF.

In a petition signed by him, dated April 2020, the then representative of the AGU says that the Court has already adopted the validity of the time frame in the case of the Indigenous Land Raposa Serra do Sol. He argues that ministers of the Supreme Court and the Attorney General’s Office expressed their views, at the time of that action, “on the need for what was decided in that specific case to be applied to other controversies related to the demarcation of indigenous lands”.

Mendonça headed the AGU on two occasions during the Bolsonaro government: from January 2019 to April 2020 (when he took over the Ministry of Justice and Public Security, after Sérgio Moro left) and from March to August 2021 (when he was appointed to the STF ).

In an interview with the newspaper Gazeta do Povo in 2021, a week before Mendonça’s inauguration in the Supreme Court, Bolsonaro stated that he was sure about his position regarding the time frame, since, as attorney general of the Union, he had worked in line with the government in case.

“We already know that André will be a vote for our side. This is not influence peddling, this is what we know given his behavior”, said the former president. In the four years of his mandate, Bolsonaro fulfilled his electoral promise not to demarcate “not even a centimeter” of indigenous or quilombola lands.

The Code of Civil Procedure makes no direct reference to the performance of the AGU in the articles dealing with the impediment or suspicion of a judge. Experts heard by Sheet opine that, from a moral point of view, however, the impediment exists.

“There should at least be an implicit understanding that if [o advogado-geral da União] signed petitions and followed the case at the head of the organ, having access to the entire process from the perspective of the party’s lawyer, and defending the ideals of an absolutely explicit government in the purpose of ‘not demarcating a centimeter’, he would be impeded”, says Paula Brasil, constitutionalist and law professor at IDP College.

Miguel Godoy, professor of constitutional law at the Federal University of Paraná, explains that the STF understands that the previous performance of current ministers in the position of AGU does not generate automatic impediment.

“However, this understanding of the STF is mistaken. If the STF intends to be an impartial court, with impartial ministers, past actions such as AGU in favor of the Union should, yes, generate impediment, because the AGU represents the Union’s own interest”, evaluates .

Questioned, the STF stated in a note that the causes of impediment are provided for in the Code of Civil Procedure and “are objective”, while those of suspicion are subjective. “Eventual suspicion or impediment can be recognized by the magistrate’s own initiative or by provocation in the records”, says the text.

In another process, on the 6th, Minister Dias Toffoli declared himself impeded for having acted in the case when he was attorney general of the Union. In the action, a group of farmers asks that an ordinance that expanded the boundaries of the Ibirama-Laklanõ Indigenous Land, of the Xokleng people, be annulled. This same indigenous land is the target of the time frame process.

“Minister Dias Toffoli’s decision cannot be considered a precedent because it is not binding, but it shows good conduct”, says Godoy.

For Rafael Modesto dos Santos, a lawyer for the Xokleng people, Minister Mendonça’s attitude is frustrating.

Juliana de Paula, a lawyer for the ISA (Instituto Socioambiental), which also represents the Xokleng people, is still concerned about the delay in the case caused by the request for an examination, “preventing a faster resolution of the issue that has been dragging on for many years in the stf”.

“The minister could already present his vote and advance the step. We are tired of waiting. As the STF does not resolve the issue, more indigenous people die, since agrarian conflicts intensify when this judgment enters the agenda”, reinforces Maurício Terena, legal advisor for Apib (Articulação dos Povos Indígenas do Brasil), who acts as “amicus curiae” (friend of the court) in the process.

_{The Planeta em Transe project is supported by the Open Society Foundations.}