At least 39 legislative proposals are being processed that seek to restrict the power of action of the (Supreme Federal Court).
Coming mostly from opposition deputies, amid the court’s clash with (PL) allies in recent years, the proposals target topics such as the arrest of deputies and the use of atypical financial transaction reports produced by Coaf (Financial Activities Control Council).
Among the measures are seven projects that define crimes for which magistrates are responsible and regulate their impeachment for behaviors such as demonstrations on political issues. Another project even provides for criminal liability for statements that “tarnish the image of the STF”.
The majority of proposals (13) were attached to other projects already in progress. Another 10 await the order of the President of the House, (-PB), and 12 are being processed in committees, awaiting the designation or opinion of the rapporteur. Furthermore, one of them is awaiting the creation of a temporary commission and another is ready to enter the agenda of the Public Administration and Service Commission (Casp).
Two of them have more advanced processing. One, authored by Caroline De Toni (PL-SC), extends the powers to legislate on firearms to the states and is ready to go to the plenary. It is a response to the STF’s recognition that the issue falls within the exclusive competence of the Union.
Another proposal, which was sent to the Senate in December, seeks to restrict precautionary measures by monocratic decision. It imposes the obligation on the rapporteur to automatically submit the decision to the STF panel, without prejudice to its immediate effects. The PL was presented by Marcos Pereira (Republicanos-SP), but developed by a team of jurists chaired by minister Gilmar Mendes himself.
Opposition parliamentarians lead the matters that target the STF (including, among others, 14 PL projects), but there are also projects from parties within the government base. Among those on the left, PSOL filed the most recent one, which provides for a.
A code of conduct — like the one that gained strength in the midst of — tends to empty some initiatives, without causing as much friction as the minister’s monocratic decision at the end of last year.
At the time, he limited the prerogative of requesting impeachment of magistrates to the (Attorney General’s Office). Days later, Gilmar reached an agreement with Congress and overturned his own decision.
For Daniel Vila-Nova, professor of public law at the Federal University of Campina Grande (UFCG), Congress reacts to a growing concentration of power in the hands of the STF and seeks to restrict the impact of changes to the court made through the rules and not by law.
He and other experts consulted by the Sheet assess that dissatisfaction with the weight of monocratic decisions is at the heart of the issue.
“Constitutional amendment 45/2004 reformed the Judiciary and concentrated powers in the Supreme Court, for example, with the binding summary, the general repercussion and the increase in the court’s duties and powers. The current political situation has led to questions about what the court can or cannot do, especially regarding ministers alone”, assesses Vila-Nova.
For lawyer and doctor in constitutional law Damares Medina, there is a dysfunction in the Supreme Court’s actions, especially in the criminal sphere. She also criticizes what she calls the ministers’ “media stances”.
“Criminal jurisdiction is being exercised in a very hypertrophied way, which weakens the court and undermines its legitimacy, as it judges members of the . It makes sense for Congress to react to a stance that it considers a violation of the Powers”, he states.
Authored by Captain Alden (PL-BA), PL 302/2023 characterizes ministers’ speeches as “judicial activism” and prohibits certain demonstrations on social networks, media outlets and events. According to the justification, “the speech and participation of ministers in a strictly political-ideological environment is noticeable, under the argument of defending democratic institutions”.
On another front, Carla Zambelli (PL-RJ) and Coronel Meira (PL-PE) proposed changes to the Chamber’s internal regulations to submit judicial decisions on precautionary measures or removal of parliamentarians to the House for deliberation — as, in fact, occurred in the impeachment process of the deputy herself.
Furthermore, two PECs (Proposed Amendment to the Constitution) and two PLPs (Complementary Law Project) intend to give Congress the power to suspend STF decisions. On a similar front, a project seeks to extinguish “crimes of opinion” and revoke punishments already imposed by the Judiciary. In the text, deputy Marcos Pollon (PL-MS) claims that “many people have been unfairly prosecuted for expressing political opinions or opposing government actions”.
There are also cases such as PL 2582/2023, which establishes the Brazilian System for the Defense of Freedom of Expression (SBDL), in response to STF decisions related to big tech. Amid broad measures focused on the operations of internet providers, the PL prohibits the removal of parliamentarians’ social media accounts. In the context is the suspension of profiles such as that of senator Alan Rick (União Brasil-AC), in January 2023, and deputy Nikolas Ferreira (PL-MG), in 2022 and 2023.
Author of the proposal, deputy Lafayette de Andrada (Republicanos-MG) emphasizes that it is up to the Legislature, “exclusively”, to “judge legislative merit”.
One of the biggest clashes between the Legislature and the STF, they are also the target of four proposals in the Chamber.
For Vila-Nova, the decision-making process by the Supreme Court needs to be more transparent. He assesses that Congress’s response is legitimate.
“From 2019 to now, the Supreme Court began to modify its internal regulations. Changes like this can alter the entire functioning of a court, without changing the Constitution or the laws. Parliament began to want to establish standards so that this is more stabilized and does not just depend on the winds that are moving the Supreme Court.”
The parliamentarians with the most individual or collective proposals are Caroline De Toni (PL-SC) and Antonio Carlos Nicoletti (União Brasil-RR), each with seven projects in progress.
Fernanda Marinela, a lawyer specializing in administrative law, believes that the conflict is due to the legislative void on relevant topics.
“For many years, the Supreme Court considered that it did not have a law on certain topics and, therefore, could not decide. It asked Congress to make the law, but it did not do so. So, it started to decide based on the concrete situation. In the past, it did this on issues of broad social importance, but, with Lava Jato, the situation gained strength and began to have a strong political influence bias. This was accentuated by political polarization, and the Judiciary began to exaggerate the space it has to occupy”, he says Marinela.
In the same vein, Thiago Pádua, professor of constitutional law and consultant at the Brazilian Institute of Legal Sciences (IBCJ), highlights the opposition’s leadership in the proposals, concentrated in just two parties.
“This highlights a traditional dispute in party politics, like that of manuals that discuss left and right. From a political point of view, Congress can and should make the changes, but it needs the participation of the Supreme Court and civil society. We need to observe defects in initiative.”
For the expert, in the current scenario, the topic ends up contaminated by the polarization typical of the pre-election period. When commenting on one of the proposals, which would oblige public agents, such as STF ministers, to use body cameras —in a declared reaction to the court’s decision to oblige the use of the equipment by police officers—, Pádua characterizes the initiative as “caricatural”.
“We have seen several politicians having as their campaign banner changing the structure of the Supreme Court and managing to obtain the impeachment or removal of judges. This has an absolutely complex burden and brings serious problems”, he assesses.
