STF went far beyond the “technical activism” cited by Barroso, say jurists

Speeches last Wednesday (5) by the vice-president of the Federal Supreme Court (STF), Luís Roberto Barroso, reveal a mistaken view of the minister on judicial activism, according to jurists consulted by the People’s Gazette.

The minister stated that “the Supreme Court has very few activist decisions in a technical sense” and defined activism of this type as “the decision by which a judge interprets a vague principle to govern a situation that was not contemplated by either the legislator or the constituent.” This would be a type of legitimate measure by the Court, Barroso pointed out.

According to jurists, there is, in fact, the possibility of activism in this sense, but what the STF does goes far beyond this prediction.

“The Supreme can practice activism in a technical sense, as any court does, but, in Brazil, this has been done in an exacerbated way. It is not in a technical sense. And a very striking example is an inquiry whose acts have been, here and there, ratified by the collegiate, with a series of restrictions on freedom of expression, and actions on networks and social media, including”, comments Adriano Soares da Costa, former judge and specialist in Electoral Law, in reference to the inquiry of fake news.

To exemplify what would be admissible activism in a technical sense, the minister cited the judgment of same-sex unions, in 2011. “There was no law governing the matter; some applied de facto partnership, others thought they should apply stable union, and the Supreme Court intervened and decided that the same rules of stable union will govern in homoaffective union. This was a creative solution, there was no rule and the Supreme Court created it. But other than that, cases were very rare. [de ativismo judicial]””, said the minister.

Alessandro Chiarottino, professor of Constitutional Law and Doctor of Law from USP, criticizes Barroso’s suggestion that activism in Brazil has only occurred to fill legislative gaps. In the opinion of the jurist, what has been observed in the country goes far beyond that.

“We see the Supreme Court determining people’s arrests, defining what freedom of expression is in a way with which most people in the legal area and other areas do not agree, speaking about the appointment of servants by the Executive… The Supreme Court has not limited to acting when there is no norm and the citizen would be exposed to the law, as Minister Barroso said. that are fundamental in the Rule of Law, such as freedom of expression, and, beyond that, it has gone as far as defining what gender and sex are, as Justice Celso de Mello did, in that famous judgment on the same-sex unions”, he says.

STF does have “political power”, but cannot abandon self-restraint, say jurists

Regarding Barroso’s statement that the Supreme Court is a “political power”, and not merely a technical department, jurists say that, in itself, it is not wrong – since, among other things, the Court is an interpreter of the Constitution , which establishes the norms for the political functioning of the country. They point out, however, that the fact of being a political power should not be confused with permission for the Judiciary to interfere in the other powers of the Republic.

“The Judiciary is, yes, one of the powers of the Republic and, as such, a political power – as are the Legislative and the Executive. There is no problem with that. It is like that in France, Italy, the United States, Germany, but this is not to be confused with an action by the Judiciary outside the boundaries of the Constitution, of interference in the other powers. They are different things. I agree when he says that it is a political power, but restraint is needed, it is necessary to leave the Legislative and Executive with their roles. At the pace we are today, those who run the risk of becoming a merely technical body are the Legislative and Executive”, comments Chiarottino.

Soares da Costa states that the STF, in its republican history, “has always had a political role insofar as it is the interpreter of the Constitution”. Over time, especially with the delegitimization of other powers in the face of corruption scandals, it ended up becoming the focus of attention and began to be provoked by parties, associations and minorities.

“This meant that the Supreme Court started to be called to deal with all the questions. And this started, in practice, to transform it, many times, into an unelected substitute of the Parliament. The minister [Barroso] gives the example of the homoaffective union, from the point of view of equating it with the stable union, but he forgot to say that the Federal Supreme Court created a criminal type for transphobia and homophobia by analogy in malam depart [isto é, prejudicial ao réu, algo que não é admitido no Judiciário brasileiro]equating it with the crime of racism and, thus, violating the principle of strict legality, of criminal types, taking for itself a competence that is exclusive to the national Congress”, criticizes the jurist.