When judging the case against the former president (PT), the (Supreme Federal Court) adopted the position of restricting its analysis to the rite of the process, without delving into the merits — which could result in the court’s assessment of whether or not there was a basis for the definition of a crime of responsibility.
Until today, . If this happens, the court will find itself faced with the dilemma of reinforcing the position it adopted in the Dilma case, or possibly reviewing that understanding, allowing the court to block possible processes that, for example, seek to remove magistrates based on the merits of their decisions.
If, on the one hand, this would allow the Supreme Court to be an obstacle to requests that were in fact retaliation against ministers for disagreement with their orders, on the other, such a movement would hardly occur without fueling the already heated dispute regarding the checks and balances of one Power over the other.
Both the STF minister’s recent decision and the STF explicitly state that this type of punishment could not occur based on the content of the ministers’ decisions.
Among experts, there are those who understand that this limitation already exists, despite not being explicit in the legislation.
In 2021, the then president of , (-MG), by the then president of the Republic, (at the time without a party), against , arguing that it was based on the merit of the minister’s acts and decisions.
When commenting specifically on the actions for which Minister Gilmar is the rapporteur, the law professor at ESPM (Escola Superior de Propaganda e Marketing) Ana Laura Pereira Barbosa assesses that the Supreme Court could exclude any possibility that authorizes the Law to be interpreted to classify the merit of judicial decisions as a reason for removal.
“In my view, it would not be a problem and I think it would simply be reinforcing something that is already in the nature of constitutional determinations, in the nature of legislation”, she says, who saw, in other points raised by the minister, an absence of adequate justification.
If Gilmar’s view prevails in the plenary — or even if this restriction is explicitly included in the legislation, as discussed by the Senate — the question will remain as to the limits of the Supreme Court to assess the adequacy of a possible request in progress, a situation still unprecedented for court ministers.
“In fact, the Supreme Court refused to enter into the merits [no caso de impeachment presidencial]but he controlled the procedure, sometimes in a very incisive way, to the extent, filling gaps, reviewing procedures, things like that”, says Juliana Cesario Alvim, law professor at UERJ (State University of Rio de Janeiro), adding that, in the USA, the Supreme Court did not even enter into this type of discussion, understanding that this would be a political competence.
In the Brazilian case, she says that it will be necessary to observe in the future what would happen in the event of a request against a minister being filed. “We would have to see if, by any chance, this would lead to a change in the Supreme Court’s jurisprudence, in the sense of, eventually, controlling more what is being discussed in the case of the Supreme Court minister, in order to perhaps intervene more in the protection of prerogatives”, she says.
The professor of constitutional law at UFPR (Federal University of Paraná) Miguel Gualano de Godoy considers that, in the case of Dilma, the effort to legally frame the complaint made by the Legislature was weak and that this ended up being endorsed by the STF – which in his assessment was an error and should not be replicated in the case of requests against ministers.
“According to the Supreme Court’s jurisprudence, he [o STF] he could not make that type of judgment, because that is what he decided in the Dilma case, that the Legislature is the one who defines the classification of the crime of responsibility, period. And the Supreme Court does not carry out this control”, he says.
“Crimes of hermeneutics, that is, disagreements between the Legislature and the merits of Judiciary decisions, do not constitute a crime of responsibility and this should be subject to control by the Supreme Court itself”, he argues.
Lawyer and professor at the USP Law School (University of São Paulo) Rafael Mafei believes that the STF should be able to impose limits.
“I tend to accept that the STF can prevent the Federal Senate from receiving a complaint against the minister, if the object of the complaint is a decision taken by the magistrate”, he says. “Otherwise, in practice, the possibility that the Supreme Court could take measures that would contradict the predominant interest in the Senate would be none.”
Mafei cites as an example the court’s actions regarding parliamentary amendments and adds that, if removal were possible due to this type of decision, the judicial independence of ministers would be greatly compromised.
He claims to recognize, on the other hand, that the design of having the Supreme Court himself say whether the complaint has as its object a minister’s interpretation is not perfect. “But I can’t imagine any other better [instituição] than the Supreme Court for this rule to work at all”, he says.
