The decision of the minister of the (Supreme Federal Court) is the target of criticism by experts heard by the Sheet not only for its content and potential impact, but also for the way it was given: in a monocratic and preliminary (provisional) decision – generally intended for urgent issues.
Another point seen as negative is that the judgment on the matter was scheduled for the virtual plenary of the court (in which votes are recorded only in writing), instead of the physical plenary, which would allow for more debate between the ministers, in addition to increasing the visibility of the votes and arguments mobilized by each of them.
Regarding the , although there are differences between the highlights given by each expert, the general criticism is that the design defined there represents a shield for the Supreme Court ministers, generating a . There are also those who point out inconsistencies in the premises used by the rapporteur.
Despite disagreeing with the form and content of the decision, these experts do not refute the legitimacy of the STF to assess whether points in the Impeachment Law, including with regard to the rules for removing its own members, would be in disagreement with the Constitution.
Gilmar Mendes’ monocratic decision took place in the context of two, referring to the removal of ministers from the STF —.
Both were filed in September, by the Solidariedade party and the AMB (Association of Brazilian Magistrates). The minister scheduled the judgment of the merits of the actions in the virtual plenary session in a session scheduled to begin on the 12th and end on the 19th.
One of the aspects that generated the most criticism of the decision is the restriction of the legitimacy for offering an impeachment request against a STF minister to the (Attorney General’s Office), which until then could be done by any citizen. This point, as well as the granting of requests already on an urgent basis, was requested only in the action of Solidariedade, a party led by the deputy (SP), which is.
Lawyer and professor at the Faculty of Law at USP (University of São Paulo) Rafael Mafei says that, despite considering it important that there be an analysis of the rules on impeachment of STF ministers in light of the 1988 Constitution, there was no basis for this to be done via precautionary measure.
He highlights that, in addition to the Impeachment Law dating back to 1950 and being under the current Constitution for 37 years, there would be no palpable risk justifying the urgency. “It does not appear that we are at imminent risk of abusive impeachment of a STF minister,” he says.
He also criticizes the design defined by Gilmar: “Under the pretext of defending the court from potential abuses, in practice this design will make the impeachment of STF ministers a practically unattainable reality, annihilating the only accountability mechanism that exists in the court.”
In his decision, Gilmar justifies that extreme urgency would be present given the need to preserve the independence of the Judiciary, which, according to him, would be seriously compromised, given that ministers would be subject to an accountability regime “partially incompatible with the Constitution”.
Among other points, the minister also decided that, instead of a simple majority, the vote of two thirds of the senators is now necessary to open the impeachment process. In addition, he suspended the automatic removal from office after receiving the complaint.
Rubens Glezer, professor at FGV Direito SP, also assesses that there was no basis for urgency, nor consolidated jurisprudence. “It is a deeply controversial case, in which Minister Gilmar Mendes himself needs 70 pages to justify this change”, he points out.
He also argues that a decision of this importance should not be taken monocratically, nor in the virtual plenary. “It’s not just a specific shield, but a profound imbalance in the separation of Powers relationship”, says Glezer.
For the professor, the design established by Gilmar creates a shield that “practically wrecks impeachment control”, highlighting, for example, that the removal from office at the opening of the process is no longer automatic, opening the possibility of ministers using their chairs for retaliation.
Miguel Gualano de Godoy, professor of constitutional law at UFPR (Federal University of Paraná), also sees no basis for the preliminary decision. He assesses that the decision, by restricting reporting to the PGR and seeking to shield the STF against abuse, also puts legitimate control at risk.
“This choice shortens the democratic circuit of control over the STF, as this control now depends on a single institutional actor, the PGR, which, historically, has a closer relationship with the STF”, he says, criticizing that the process is not scheduled for analysis in the physical plenary.
Ana Laura Pereira Barbosa, law professor at ESPM (Escola Superior de Propaganda e Marketing), also sees no justification for a precautionary decision and believes that the best path would have been to forward the case directly for analysis by the court’s plenary.
Despite agreeing with the premises of the decision, in the sense that it is important to take measures to protect the constitutional courts, Ana Laura disagrees that they lead to the conclusion that the Constitution prohibits citizens from submitting requests for impeachment, for example, and sees even more risk in concentrating this power in the PGR.
She also says that, instead of protecting the Supreme Court, the decision could have the opposite effect, both by intensifying the Legislature’s temper against the court and by fueling the discourse that it was overstepping its limits.
