What are the pros and cons of setting mandates for STF ministers

A proposal to set mandates for ministers of the Federal Supreme Court (STF) began to gain strength in the Senate. This Wednesday (15), in response to an appeal by Senator Plínio Valério (PSDB-AM) and several other parliamentarians, mainly from the right, the president of the Constitution and Justice Commission (CCJ), Davi Alcolumbre (União-AP) , announced that it will include in the voting agenda a proposal that limits the length of stay of a member on the Court to 8 years. If approved, the change would not be applied to current STF ministers.

The proposed amendment to the Constitution (PEC) 16 was presented in 2019 by Valério, but never advanced. The willingness to vote on it in the current legislature is a response from the President of the Senate, Rodrigo Pacheco (PSD-MG), who, in order to win votes from the new conservative group for his re-election to the position, promised to re-discuss the functioning of the Supreme Court.

For this reason, several of the current ministers fear change, for envisioning some kind of revenge from Congress, due to the accentuated judicial and political activism, practiced in recent years, during the government of former president Jair Bolsonaro (PL), who did not he hid his revolt with decisions against his administration.

Although they know that the PEC in process would not affect them, they consider that, during the discussion, other changes can be included and approved. There is great interest from deputies, for example, in ending or at least reducing the monocratic decisions of ministers, as they suspend, overnight, public policies approved by the Legislative or adopted by the Executive.

Another idea is to raise the minimum number of votes needed to declare a law, decree or administrative act unconstitutional. It would go from six – the number that enshrines the majority decision among the 11 ministers – to seven or eight. Even more daring propositions, which circulate among congressmen, discuss changes in the way ministers are appointed to the STF – for example, giving the Legislature the prerogative to choose part of the names, thus removing the exclusivity of the President of the Republic in the definition.

Valerio’s own PEC determines that, if the chief executive does not appoint a replacement within 120 days after the departure of a minister, the Senate itself could fulfill this task, so as not to leave the Court incomplete for a long time.

The main discussion to be fought, however, concerns the maximum term of office of a minister of the STF. Among the defenders of the idea, even outside the right, there is a lot of support for a longer period, up to 16 years, for example, without the right to renewal. Until last year, former senator Antonio Anastasia, rapporteur of another proposal, proposed a 10-year mandate.

At various times in the recent past, the idea of ​​fixing mandates was also defended by left-wing politicians and jurists – this was discussed, for example, when the PT was bothered, during the first two terms of President Luiz Inácio Lula da Silva (PT) and that of former president Dilma Rousseff (PT), with the growing power achieved by the STF, which already interfered in the government.

The trial of the monthly allowance, in 2012, and the initial impulse given to Lava Jato, between 2014 and 2018, accentuated discontent, mainly with ministers who had been appointed by Lula and Dilma, and who later came to be seen as traitors, for voting against party politicians.

The idea of ​​fixing mandates was seen as a form of “harm reduction” – if the nominated minister started to oppose the party too much, at least he wouldn’t stay long. The same logic is present among those who defend, with the current rules, appointing people closer to the age of 75, when the minister is obliged to retire.

Setting mandates for STF ministers

But, apart from political interests, for one side or the other, depending on the government at hand, what effects – negative and positive – could the setting of mandates generate for the STF?

The idea of ​​a lifetime term for ministers emerged in the United States, during debates for the elaboration of the American Constitution, of 1787. Alexander Hamilton, one of the founding fathers of America, argued that the fixation of terms could undermine the independence of the Supreme Court judge Cut, especially in the event of reappointment.

If I had to ask the president and senators to remain on the Court, I would tend to act in a partial way, to please them, during the first term. He also argued that tenure would make the position more attractive to candidates. In the US, the period of permanence is even longer than in Brazil, as there is no retirement age limit – the minister can occupy the chair as long as he wants.

This model was copied by Brazil in the first Constitution of the Republic, of 1891, designed by Rui Barbosa and very inspired by the American Constitution. In Europe, however, the formation of constitutional courts, from the beginning, was marked by the setting of mandates, starting with Austria in 1920. Throughout the 20th century, the model spread to other countries, such as Germany, Italy, Spain , Portugal and France, which maintain the system until today.

For Felipe Fonte, lawyer and professor of Constitutional Law at FGV Direito Rio, the setting of mandates worked well in these countries. Experience has shown that they are no less independent or more politically fragile than the Americans, who have a lifetime mandate. “Like these, they make countermajoritarian decisions,” he says.

In Brazil, the idea of ​​keeping the minister until compulsory retirement prevailed, strongly supported by another argument: that this would bring more legal security, since former ministers would tend to honor precedents more and preserve jurisprudence. It is common, for example, for those who have been on the Court for more than 20 years to have participated in relevant judgments and maintain their positions over the years.

For Fonte, however, this has not materialized in Brazil in the most recent period, with constant changes in the understandings of the Court, in a short time. The most eloquent example is the decision that, in 2016, reestablished the possibility of imprisoning a convict after the confirmation of the sentence in the second instance, and which was revised in 2019.

Thus, for the professor, since there is no guarantee of conservation of decisions, the setting of mandates would at least bring more “oxygenation” to the Court.

“The court has a lot of interference in political activity, for many reasons. But if this is the model of governance, for better or for worse, it would be better if it had oxygen. I think the term of 8 years is short, 12 years would be better. Evidently it is wrong to choose someone because he has the same ideology as the current president. But the renewal would give more oxygen, the new ministers would be more in tune with what is happening in the world”, says the FGV professor.

The Public Prosecutor, Helio Telho, says that the proposal to set an 8-year term for STF ministers “is a threat to democracy”. “With each new President of the Republic re-elected, there would be a full renewal of the STF. Do you realize the risk this brings? No president should have the power to make a Supreme Court majority,” he posted on Twitter.

Even so, he defends the setting of mandates, for a longer period, of 16 years, for example. “It does not seem healthy for the Republic that ministers of superior courts, who are responsible for the final word of Justice in matters of interpretation of the Constitution and the Laws, remain in office forever. This seems to be a holdover from the monarchy,” he argues. “On the other hand, very short terms undermine the independence of ministers in relation to the political power that handed them over to the toga, which is a threat to democracy, because it concentrates a lot of power in the hands of those responsible for choosing the toga. The ideal seems to be in the middle ground. Limit the maximum time that a judge can exercise the magistracy in courts superior to 16 years (which is the equivalent of two senator terms)”.