Recent decisions by the (Federal Supreme Court) reveal a movement to expand the court’s power, which has been underway for more than a decade. Not on merit, where they don’t present anything very new, but in their form.
Examples include the suspension of members of the Judiciary and other public careers, called penduricalhos, and the prohibition on the application of administrative sanctions.
In relation to penduricalhos, there are many decisions from the Supreme Court stating that the constitutional ceiling must be respected, that the compensation funds are intended only to reimburse expenses incurred in the exercise of public functions and that the profusion of bonuses is unconstitutional.
The novelty, therefore, is not in the arguments of the most recent decisions made by the minister, but in their effects.
The minister decided on a specific case that, in theory, would not be able to spread its effects to other processes or actors. However, the decision determined the so-called penduricalhos, of all servers in all Powers and at all levels of the federation.
To justify the scope of his decisions, minister Flávio Dino cited that the Supreme Court stated the need to observe the constitutional ceiling at least 12,925 times, in different cases, proof of a massive violation of the interpretation given by the court.
Even though it doesn’t pose any major problems on the merits. Amendment 103/2019 removed compulsory retirement from the constitutional text as a sanctioning measure to be applied to judges and, therefore, the National Council of Justice cannot apply it.
There is an important debate about lifetime tenure, preservation of public service and how to punish offending judges. But compulsory retirement — which incorporates strings attached and does not preserve the jurisdictional function — cannot be allowed to be the sanction, a true reward for the offender.
It is a relevant constitutional debate, like almost all that the Supreme Court promotes in its judgments. What is new is that the decision, when dealing with the allegation of violation of due legal process by the judge who received the penalty, expanded the allegation to question the compulsory retirement itself, in addition to urging the National Council of Justice to review the system of disciplinary responsibility in the Judiciary.
The two decisions are examples of how the court has sought to give broader effects to its decisions, expanding a movement that has been consolidating over the last decade.
Procedural reforms in recent years have concentrated decision-making power in the court. The prediction of theses of general repercussion and the strengthening of binding precedents are examples of how the legislator gave greater impact to the Supreme Court’s decisions from 2015 onwards, with the new Code of Civil Procedure.
The court has called this move an “objectification” of constitutional jurisdiction, that is, a greater emphasis on the constitutional issues present in the case, regardless of the subjective contours and allegations of the parties. The focus becomes on constitutional interpretation and not on the interests of those who are litigating.
There are reasons for this to happen, whether to rationalize the activity of judges, avoiding multiple equivalent decisions, or to affirm the Supreme Court as the ultimate body of interpretation.
And there may be reasons for this to be expanded in a new reform that addresses the accumulation of powers to control constitutionality, original actions and appeals.
However, in the absence of a reform that rethinks the attributions of judging concrete, subjective cases, the court has expanded, on its own, the effects and object of its decisions, as it did regarding pennuricalhos and compulsory retirement, even outside the rules of general repercussion and binding precedents.
Even though the merit is obvious, supported by , this becomes a problem because the process is the way in which what a judge can or cannot do is controlled, whether in ordinary instances or in the constitutional court.
