2016 Global Review of Constitutional Law

nary appeals account for the vast majority of
cases heard by the STF (in 2016, about 82%
of the total number of decisions).
From Europe, we adopted abstract and concentrated
control, allowing for the possibility
of bringing direct constitutional lawsuits
before the Supreme Court, in which the constitutionality
of a statute is discussed in the
abstract (i.e. regardless of a pending case).
There are multiple instruments of abstract review
in Brazil, such as the direct action of unconstitutionality
(ADI), the declaratory action
of constitutionality (ADC), and the claim of
non-compliance with a fundamental precept
(ADPF), with ample legal standing (e.g. these
actions may be initiated by the President,
the Head of the Federal Prosecutor’s Office,
any political party, the Bar Association, etc.).
Nonetheless, direct actions represent a very
small fraction of the Court’s decisions (in
2016, less than 0.5% of the rulings).
The STF also enjoys broad jurisdiction to
review other appeals and direct proceedings
not necessarily involving constitutional
matters. For example, the Court is competent
to try the President of the Republic,
the Vice-President, members of the National
Congress, the Tribunal’s own justices, and
the Head of the Federal Prosecutor’s Office
on charges of common criminal offenses; to
settle federal conflicts; and to decide extradition
requests from foreign States. Regarding
the President’s impeachment process, the
Supreme Court’s Chief Justice presides over
the trial session at the Senate.
The cases brought before the STF are randomly
assigned to justices by lot through an
automated system. The Tribunal ordinarily
convenes in plenary sessions (with full attendance)
twice a week, and in panel sessions
(there are two panels of five justices each,
excepting the Chief Justice) once a week.
The plenary sessions are presided over by
the Chief Justice, who has the power to set
the Court’s agenda.
The decision-making process is external and
aggregative. The justices deliberate and vote
in public plenary sessions that are broadcast
on live TV, without any previous in-camera
conference among them. Decisions are
reached by an aggregative procedure in
which the justices sequentially read their
own opinions during the Court’s sessions; all
of the opinions are later published, adopting
the seriatim model. Thus, generally, there is
no “opinion of the court”. 1 This is why the
Court’s justices are commonly identified as
“11 islands”, who operate in a rather individualistic
manner and with low levels of
cooperation. The “11 islands” are also identified
by the number of unilateral/monocratic
decisions. In 2016, only 12% of all cases
were decided collectively, either in plenary
or panel sessions, while 88% of the decisions
were issued by a single justice.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
The increased role of the STF in matters of
strong political impact gained momentum in
2016. This is most notably exemplified by
the Court’s role during the impeachment of
then President Dilma Rousseff. In December
2015, it established some central procedural
rules Congress needed to follow (ADPF 378).
That decision was confirmed by the Court
in March 2016 when the last appeal was
rejected, thereby annulling the deliberations
taken thus far in the Lower House.
While the STF somehow confirmed
precedent based on the impeachment case of
former President Collor judged in 1992 (MS
21564), it did not wade into the discussion of
whether President Rousseff’s alleged crime
of fiscal irresponsibility could be interpreted
as a crime of malversation, a condition for
impeachment according to the Constitution.
Three main reactions have emerged
therefrom. First, by limiting its consideration
mostly to the procedural rules, some argued
that the STF washed its hands of the
situation and let the political arena decide,
solely on political grounds, the destiny of
an elected president, thus deviating from its
constitutional duty to protect the presidential
regime and contributing to a sophisticated
form of coup d’état. For others, conversely,
by annulling the deliberations taken so far
in Congress based on a claimed breach of
the constitutional rules of impeachment,
the STF overstepped the boundaries of its
constitutional role and thereby entered a
dispute that was inherently political and
protected by the interna corporis doctrine.
Finally, some have agreed with the STF’s
behavior, arguing that its role was merely to
mediate the conflict and guarantee procedural
fairness; in their view, the STF rightfully left
the merits to be decided by Congress.
During the impeachment trial, despite being
continuously challenged, the STF held fast
to its position of safeguarding the procedural
rules, and did not wade into the merits of the
case. What in principle seemed an attitude of
self-restraint, though, would be contradicted
by some unilateral decisions with substantial
political impact, which raised doubts as to
whether they were politically motivated.
For example, in March, one of the justices,
in a unilateral decision, barred former
President Lula from becoming President
Rousseff’s Chief of Staff on grounds that the
appointment simply sought to circumvent the
lower court judge’s issuance of a preventive
arrest warrant against him (MS 34070). This
decision was never scrutinized by the Court,
but it was considerably influential on the
course of the impeachment trial.
Another controversy arose from the “Car
Wash Operation” involving several key
players in Congress. Due to its deep political
impact, the timing of decision-making
raised several debates on how it could
have influenced the impeachment trial. For
instance, the Head of the Federal Prosecutor’s
Office filed a lawsuit on graft charges against
Eduardo Cunha, then Speaker of the Lower
House, in December 2015 (AC 4070). Since
Mr. Cunha was a decisive player in launching
the impeachment trial in Congress, some
have argued that if the STF had decided the
case immediately after charges were filed
against him, things would have unfolded
differently. Yet, the STF only decided to
oust him from office in May 2016, after the
Lower House had already authorized the
impeachment procedure. While, for some,
this was a politically biased strategy, for
1
Only more recently, in the most prominent cases, did the STF begin to formulate a statement that represents the majority opinion.
28 | I•CONnect-Clough Center