Re-discussion of issues judged in the STF may be in vain – 09/28/2023 – Power

In recent weeks, a series of initiatives coming from the Legislature seem to directly confront issues that have already been judged or are being judged by the Federal Supreme Court.

It is nothing new for the Legislature to react to Supreme Court decisions or agendas.

For example, in 2017, months after the Supreme Court considered vaquejada unconstitutional for subjecting animals to mistreatment, the National Congress approved an amendment to change the Constitution and exempt vaquejada as a cruel practice. The issue returned to the Supreme Court and there is still no decision.

In 2018, when the Supreme Court was discussing the limitation of forum prerogative by function, Congress asked to remove the topic from the agenda as it was analyzing a constitutional amendment proposal with the same purpose. A little earlier, Congress considered reinserting the financing of electoral campaigns by legal entities in the text of the Constitution.

Thus, sometimes the Legislature reacted to the Supreme Court’s decisions in a self-interested way, to perpetuate its dynamics, and sometimes it acted to please its electoral base, even on issues already considered unconstitutional by the court.

There is no legal or institutional limitation that prevents the Legislature from re-discussing issues already voted on by the Supreme Court, as the court’s decisions do not bind legislative activity. However, it may be a vain re-discussion, as it is likely that new laws that contradict court decisions will return to court and receive the same treatment.

Even so, as the court itself is not bound by its own decisions, changes in understanding, resulting from a new interpretation or a change in the composition of the court, can validate positions previously considered unconstitutional.

When in doubt, it seems that the Legislature prefers to take risks. All of this is part of the logic of the relationship between the Powers.

This movement has been particularly intense in recent months, when the Legislature moved forward with projects on the time frame for the protection of indigenous lands, criminalization of drugs, prohibition of same-sex unions and amnesty for penalties for non-compliance with affirmative actions in the electoral sphere, being that in some of these cases there was an explicit announcement that it was a response to the court’s deliberations.

The opinion of the bill that intends to ban unions between people of the same sex is an example, with the rapporteur mentioning that “once again, the Brazilian constitutional court usurped the competence of the National Congress” and that the court’s decision “was guided by based on ideological purposes, which distorts the mens legislatoris and the will of the Brazilian people, which is only manifested through their regularly elected representatives”.

The same has been repeated by senators unhappy with Rosa Weber’s vote on abortion and by the president of the Senate in relation to the trial on decriminalization of drug possession for personal consumption.

The difference is that, now, these tactics are immersed in a context in which the Supreme Court is emerging from a long and exhausting process of attacks promoted by the extreme right, which, in part, remains entrenched in the Legislature and which, by all indications, has not abandoned the directive to confront the court.

Thus, the dispute between the Legislature and the Supreme Court can transcend a divergence of positions to become a front for intentional erosion of the court. In fact, in this sense, there are already proposals about the possibility of the Legislature suspending decisions from the Supreme Court.

The idea that minority rights and democratic guarantees cannot be at the mercy of elected majorities is a basic precept of the Constitution and logic, as is the role of the Supreme Court in preserving these rights, as an instance that does not operate in representative logic and that, Sometimes, it will decide in a way that is contrary to the will of majorities – and the Legislature – in defense of a democracy qualified by pluralism. There are no paradoxes.

In democracies like ours, the will of the population, exercised through voting for the Legislative and Executive, is limited by the Constitution, as is the decision-making power of the STF.

When both depart from the Constitution, we have a problem. It is adherence to the Constitution and its plural and democratic project that will determine the legitimacy of the decisions that are now in dispute between the Supreme Court and the Legislature.

And who should win the dispute between the Legislature and the Supreme Court? The answer should be: the Constitution.