STF has ruled in place of other powers 60 times since 2019

The role of the Federal Supreme Court in decisions that should belong to other powers of the Republic has increased especially since 2019 and can be proven by data available at the STF itself, according to a survey published in the newspaper “O Globo”.

Of the 122 sentences handed down by the court since 1990 based on the “unconstitutional omission” instrument, almost half, 60 of them, took place between 2019 and June 2023. The instrument, provided for in the 1988 Constitution, is a control mechanism to prevent Powers do not fulfill their duties and are absent from discussion and practice to enforce constitutional determinations.

Judgments of this nature, which cause friction with the Legislative and Executive, generally generate controversy in society, with opposition from more conservative segments. An example was the criminalization of LGBTphobia, in 2019, with the Court equating it with the crime of racism, which understood the failure of Congress to legislate.

Activism intensifies under Bolsonaro

Since the government of Jair Bolsonaro, in 2019, another 15 STF decisions have been handed down in cases of constitutional omission, involving protection of minorities and vulnerable groups, such as indigenous peoples, quilombolas and people with disabilities, in addition to other social rights.

At least six determinations involved the context of the Covid-19 pandemic. Among them, the temporary suspension of evictions and evictions, extended to rural areas. In 2021, an injunction was granted by Minister Luís Roberto Barroso based on a request from PSOL, which was criticized by Bolsonaro. “As PSOL does not get anything in the Chamber, it goes to court, where it finds its supporters. Barroso’s decision is regrettable”, said the president at the time.

Varied themes involve recent cases

Other judgments based on the omission criteria are related to the prison system, the functioning of the public service and security. Some generated severe criticism, such as the STF’s measures to prevent police operations in Rio’s favelas during the pandemic, determined by Minister Edson Fachin.

A recent example occurred last Friday, when the Federal Supreme Court (STF) defined by 11 votes to 0, that the Chamber of Deputies has until June 2025 to redistribute the number of deputies per state according to the current population of each one of them.