Parties use legal thesis to advance left-wing agenda via STF

On December 11, Minister Alexandre de Moraes spoke at the launch of the Visible Streets program, aimed at homeless people, from the federal government, which had been implemented by virtue of the minister’s own decision in July, in the Fundamental Precept Noncompliance Action (ADPF) 976. The minister’s decision responded to the request of left-wing parties and movements: PSOL, Rede Sustentabilidade and the Homeless Workers Movement (MTST). The Visible Streets budget will be around R$1 billion.

The episode drew attention as a striking example of the growing assumption by the Judiciary, in Brazil, of functions previously typical of the Executive Branch, such as defining administration priorities and planning public policies.

In the action, PSOL, Rede Sustentabilidade and MTST invoked the theory of unconstitutional state of affairswelcomed by minister Alexandre de Moraes.

Originally cited by the STF in 2015 to determine the implementation of policies for the prison population, the thesis has since been studied by the STF to order changes in environmental protection policy and has been invoked by political parties for even more diverse purposes. , such as the implementation of racial policies.

The thesis was not created by the STF: it was originally adopted in 1997 by the Constitutional Court of Colombia, which, according to jurists, is considered an exponent of judicial activism and is often a pioneer of innovative theses in the Latin American context.

What is the unconstitutional state of affairs?

According to the traditional legal conception, constitutions are texts intended to discipline the State, and not society. Thus, a law approved by the Legislature or a policy implemented by the Executive could be unconstitutional, but phenomena in the world located outside the State, such as natural disasters or even complex social phenomena, such as poverty or inequality, could not be considered unconstitutional.

In a deviation from this idea, the thesis of unconstitutional state of affairs maintains that, if the text of the Constitution provides for positive rights such as the “dignity of the human person” or the “right to health”, it constitutes an “unconstitutional state of affairs” if there is, in the world of facts, non-compliance with these goals – or , in the STF’s formulation, a “massive and persistent violation of fundamental rights, resulting from structural failures and failure of public policies and whose modification depends on comprehensive measures of a normative, administrative and budgetary nature” (ADPF 347).

What the thesis implies is that, even if all formal rules applicable to state conduct are being complied with, judges can exercise judicial control over the outcome. If it is considered unsatisfactory, they can directly order public policy changes with a view to achieving the desired ends – a task that, in the traditional conception of the separation of powers, would be a typical function of the Executive.

Application to “structural racism”

The thesis of the “unconstitutional state of affairs” may be about to be adopted again by the STF in ADPF 973 (nicknamed “ADPF Vidas Negras”, in reference to the American movement Black Lives Matter), currently in the trial process.

In the action, PT and PSOL ask the STF to recognize an unconstitutional state of affairs constituted by “structural racism” in Brazilian society, especially with regard to health, food and victimization by crime (areas in which the black population appears in a statistically more unfavorable situation than non-black women).

Consequently, the parties also demand that the STF order the State to “adopt policies and reparation measures” for the black population.

What is structural racism

“Structural racism” is an academic and political term associated with progressive currents. Its premise is that the foundations of a certain society (including its rules and procedures) were constructed in a way that disfavors one or another race in favor of others, even in the absence of prejudiced beliefs or behaviors from the individuals who make up that society – the so-called “individual racism”, a concept that is often contrasted with the first.

Proponents of the idea often interpret statistics of inequality of outcome as sufficient proof of the existence of structural racism, even in the presence of procedural rules that make individual discrimination impossible (as in the case of blind selection tests).

The thesis is similar to that of the unconstitutional state of affairs, in that conformity to morality, the law or the Constitution is not measured by adherence to rules in the practice of individuals or the State, but only by the material result, if it is discrepant in relation to the ideal that is adopted as a goal.

From a legal point of view, in Brazil, “racism” is currently a technical-legal term that designates a crime provided for in the Constitution and Law No. 7,716/1989; therefore, applicable only to individual conduct.