Even though they are optional, public hearings have become frequent at the (Supreme Federal Court), with ministers increasingly resorting to them in high-octane political, technical or social processes. Experts, however, point to a use below potential.
Public hearings are meetings open to society in which the court, upon identifying the need to clarify an issue or circumstance related to the case, invites people with experience and authority in the matter to promote a debate and hear what they have to say.
Although it serves to listen to the views of different segments of society and qualify the ministers’ arguments, in practice, this tool does not always have a concrete effect on judgments in the Supreme Court and, sometimes, ends up working more for rhetorical purposes and to legitimize the court.
The first time the Supreme Court used the instrument was in 2007 on the initiative of the minister, now retired. Aspects of the Biosafety Law were discussed, including the controversial and divisive use of embryonic stem cells in treatments and scientific research.
The law already authorized the court to call public hearings, but until that moment the STF did not have its own rule that governed the entire process — something that would only come with a 2009 amendment to the rules. The option was to adopt the Internal Regulations of the .
Since then, the Supreme Court has recorded a total of 48 public hearings called, including the one on embryonic stem cells. Examples from the last two years are no less in terms of controversy and social relevance: , , and .
With the amendment in 2009, the court created an internal procedure for public hearings. The person responsible for calling the meeting is the reporting minister, who is responsible for coordinating the meeting, opening the deadline for registration, selecting the participants, defining the dates and structuring the order of presentation.
There is a general line of growth in public hearings at the STF from 2007 to 2025. With the exception of a non-standard peak in 2013, the number varies from 1 to 2 in the first years. From 2017 onwards, there is an escalation, with an upward trajectory, culminating in 5 sessions in 2024 and, again, in 2025.
According to Miguel Godoy, professor of constitutional law at UnB (University of Brasília) and UFPR (Federal University of Paraná), frequency has increased mainly in the last decade, at a time when it has become routine in the court to examine complex topics with experts.
“The Supreme Court adopted hearings as a space for hearing and information on morally sensitive and complex issues, opening the court to a plurality of technical and social arguments”, he says. “The STF uses public hearings not as a result of legal imposition, but to enrich the decision-making process.”
But Godoy has a mixed assessment of the court’s application of this instrument. On the one hand, it says that it contributes to information and publicity about the case. On the other hand, he claims that there is a dynamic that is not very dialogical, without the exchange and challenge of arguments and that does not exploit its full potential.
Despite the criticism, UFMG (Federal University of Minas Gerais) professor Bernardo Fernandes sees a positive balance, even if gradually, due to the fact that the court has started to recognize that constitutional decisions of great impact require dialogue with society and technical knowledge.
He argues, however, that they are “a real instrument of influence in the decision-making process, and not as a mere rite of consultation or a procedure just to satisfy public opinion that the STF is (or would be) open to input from society (thus, its use is merely rhetorical)”.
Thiago Sombra, public law partner at Mattos Filho, explored how criteria and procedural defects affect the effectiveness of public hearings at the STF in a 2017 article entitled “”.
The lawyer highlights the lack of a standard regarding the selection criteria for speakers, the low participation of ministers in the sessions and the limited mention of the material collected in the ministers’ votes. THE Sheet the expert states that the conclusions remain valid to this day.
Sombra also criticizes the calling of public hearings for cases that are then resolved through a formal question (without going into the merits) and the fact that lawyers, and not technicians or representatives of society, make up the majority of participants in these sessions. Some even take part in the processes.
“It’s a slightly incongruous situation, because the court should use the mechanism to listen to civil society and experts, and not to anticipate a judgment”, says the expert. “Whenever possible, we should avoid having the same parts heard twice.”
He cites, for example, the need to have a notice with clear parameters for calling public hearings, prohibiting people or entities from having the opportunity to speak twice (once at the hearing and once at the trial) and focusing on topics that may in fact be the subject of a judgment on the merits.
