The Floor of Portugal from parliamentarians, authorities and VIPs of the legal environment to participate in the first days of the month is more than an opportunity to take advantage of the European summer, eat well and discuss the dilemmas of the country. It is an effusive demonstration of the political power of the person of his dean ,. Created by him in 2013 to foster the legal debate of the great questions of the State and Contemporary Law, O, as the media properly baptized the event, grew of importance in parallel to performance – the extended and unconceive limits – of the Brazilian Supreme Court in the political life of the country.
In fact, it has gone far beyond its traditional role of Baluarte of the Constitution, judging the compliance of legislative production to the principles of the larger law. He has been acting as an instance of mediation and conciliation.
See the recent episode of the Presidential Decree defined a percentage of increase, after all overthrown in the House of Representatives-which led the AGU (Attorney General of the Union) to resort to the Supreme. This, instead of judging the constitutionality of the legislature, suspended both decisions and called a conciliation hearing to the 15th.
This is not the first time, in the validity of the letter, that STF assumes a moderating role and calls the understanding among the parties in dispute. Arbitrated disputes between executive and legislative, as in the case of the secret budget; in federative impasses, between the Union and states or municipalities, for example, during the COVID-19 epidemic; In disputes between the state, indigenous peoples and local interests, such as the demarcation of the Raposa-Sun lands and, more recently, in conciliation to define the temporal framework of the demarcation of territories of the original populations. For this purpose, it used public hearings, working groups and informal dialogues with those involved.
The use of conciliation is not a national idiosyncrasy. Studies show similar behavior of the high cuts in India, South Africa and Colombia.
In Brazil, the institutional bases of STF power were defined in the expansion of its protagonism was also due to political circumstances. The pandemic and conflicts generated by Bolsonaro’s coup opened an avenue for the supreme engagement.
His role in reconciling interests was robbed as the executive or legislature were delegating power to deal with very controversial issues, impasses that could not resolve, or whose solution would be politically costly.
In any case, there are risks embedded in this form of action that goes beyond the classic borders of the judiciary, often shuffling the consecrated separation of powers.
On the one hand, the limits between what is dictated by the legal technique and what results from the political preferences of the togades were less precise. On the other hand, there are no monitoring mechanisms. Especially, the main instrument to judge their responsibility for decisions they may make: the prerogative of citizens to punish them at the polls.
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