(30) In the Commission of Justice and Citizenship of the, the project that deals with constitutionality actions in (Supreme Federal Court) transforms into law entertainment already signed by the Court, but also advances to a point considered unconstitutional by specialists.
The proposal limits the STF’s performance on topics such as monocratic decisions and adds to congressional messages in the wake of the. The text, authored by Deputy Marcos Pereira (Republicanos-SP) and rapporteur of Alex Mante (Citizenship-SP), will be appeal for voting in plenary.
The change in rules for granting individual decisions divides the opinion of experts consulted by Sheethowever, they agree that the imposition of a restriction on parties present actions to the Supreme is unconstitutional and would require an amendment proposal to the Constitution.
The text provides that only parties or federations that have exceeded the performance clause can propose actions. It also requires entities to prove acting nationwide and present reports, opinions or data when there is private economic interest.
As for injunctions, the proposal authorizes individual decisions in cases of extreme urgency, danger of severe injury, exceptional social interest or in a period of recess. The measure, however, must be submitted to the plenary for referendum, under penalty of annulment, an innovation in relation to the current model.
Daniel Sarmento, professor of Constitutional Law at UERJ (Rio de Janeiro State University), considers the project in general balanced. For him, it is reasonable that the rule, in “99.9% of cases”, be the judgment in plenary, with space for urgent measures that can later be submitted to the ministers.
Sarmento sees as a problem, however, the attempt to restrict the legitimacy for proposition of actions. “The constitutional text speaks of a political party representing the. Political Party with representation in the National Congress is not the party that passes the performance clause.”
Daniel Capeci, Professor of Constitutional Law at UFRJ, states that the restrictions on the possibilities of constitutional questions that the project imposes on lower expression political parties violates the “logic of the constituent”, which sought to broaden these possibilities, and makes it difficult to access politically underrected groups to the Court.
In addition, Capeci states that such changes must be made through PECs (proposals for amendments to the Constitution), under penalty of declaration of unconstitutionality. The proposal approved in the House, until then, has not adopted this legislative procedure and is being processed as a bill.
The position is corroborated by the professor of the State Law Department of USP Maria Paula Dallari Bucci. It reaffirms the need for constitutional amendment for any changes in Article 103 of the Constitution, which deals with authorized entities to propose constitutionality actions in the Supreme.
Regarding the rules for granting injunctions in the Supreme Court, Dallari states that the approved text is broader than the Court’s internal regulations. On the other hand, it points out relevant restrictions on the project, such as the need for these decisions to be based on topics on which Supreme Plenary has already been positioned.
Capeci argues that changes in the rules for monocratic analysis in plenary strengthens collegiality, but ponders: “Care must be taken so that these changes are not used as attacks disguised to the autonomy of the court and its ministers – which needs to be evaluated from the content of each proposal.”
Insper Luiz Fernando Esteves’s law professor states that the project advances towards a “constitutional process code” by organizing the Supreme’s performance in the judgment of processes on constitutionality of laws and norms in general – an old demand of the academy.
According to him, the proposal consolidates the Court’s understandings, but also hardens rules for the presentation of actions by class entities. Esteves says the proposal “returns a jurisprudence of the STF from the early 1990s”, and the Supreme was flexing these requirements.
