Editor’s Note: Today we publish the 2016 Report on Brazilian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Luís Roberto Barroso[1], Juliano Zaiden Benvindo[2], and Aline Osorio[3]
I. Introduction
Developments in Brazilian Constitutional Law in the year 2016 were shaped by deepening economic, political, and social turmoil, and by the repercussions of investigations into widespread corruption implicating high-profile political actors and leading companies.
In politics, we went through a traumatic impeachment trial against President Rousseff; the speaker of the Lower House was removed from office and later arrested on corruption charges; and the speaker of the Senate has been indicted on charges of embezzlement and removed from the presidential line of succession. Hundreds of political figures from diverse political parties are currently under investigation for graft, money laundering, and other crimes, mostly within “Car Wash Operation”.
In the economic field, Brazil has been facing a severe recession, with a shrinking GDP, rising unemployment, and the hemorrhaging of public finances. The fiscal crisis has had a major impact on the member states’ economies, many of which have been struggling to meet their payrolls and maintain essential public services. In the social realm, the widespread popular discontent with and cynicism toward the political class, coupled with the fear of impending setbacks to the protection of social rights, gave rise to people’s protests and to the “Occupy Schools” movement led by students nationwide.
It would be naive to assume that the storm would not hit the Supreme Court. If, in Brazil, there was already a tendency toward the judicialization of politics, in times of crisis this inclination has become even more clear. Throughout the year, the Court was called upon to intervene in several core political, economic, and social controversies. Taking the position as arbiter of national disputes, it was nonetheless thrust into the heart of the crisis.
II. The Constitution and the Court
The Brazilian Supreme Federal Court (STF), the apex court of the country’s judiciary, comprises 11 justices, appointed by the President of the Republic and confirmed by the absolute majority of the Federal Senate. The justices have life tenure and are subject to mandatory retirement at age 75.
The STF has primary responsibility for safeguarding the Constitution. Brazil’s 1988 Constitution adopts a hybrid or mixed system of judicial review, which combines aspects of both the American and European models. From America, we derived a concrete and diffuse form of review: every judge or court has the authority to adjudicate on claims of constitutional violation in a case. The constitutional issues raised in the various courts can ultimately be brought before the STF through “extraordinary appeals” (RE), whereby the Court examines if the appealed decision violates the Constitution. Extraordinary 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”.[4] 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.
III. Constitutional Controversies
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 others, ousting the House Speaker signified a serious encroachment on the powers of Congress.
In December, another justice would further test the boundaries of law and politics when he, also through a unilateral decision, issued a preliminary order to remove Senate President Renan Calheiros from office based on embezzlement charges (ADPF 402). This decision was overturned by the Court the next week, but it could not help but reveal how the STF had transformed itself in 2016. Challenged by all sides of the political spectrum, it became a prominent example of what Hirschl calls “the judicialization of mega-politics”.[5] After all, it was at best unexpected to have a Supreme Court involved in such sensitive political matters as the fate of the heads of the Executive, Lower House, and Senate in one single year.
IV. Major Cases
A. Separation of powers
- Proceedings in the impeachment trial of President Rousseff (ADPF 378-ED, decided 03/16/2016)
In March, the STF rejected the final appeal on a case originating from a Claim of Non-Compliance with a Fundamental Precept, which discussed how the impeachment proceedings should take place in Congress. There were many doubts about this proceeding, because the 1988 Constitution regulates it only very briefly and Law 1079, which defines the crimes of malversation and the procedural rules for the impeachment trial, was enacted in 1950. Moreover, although there was already a Supreme Court precedent regarding President Collor’s impeachment in 1992, some relevant issues remained unanswered and the political and legal context had changed a great deal since then.
The plenary session to decide the merits of the case took place in December of 2015. Following Justice Luís Roberto Barroso’s opinion, the majority of the Court reaffirmed the precedent set during President Collor’s impeachment. The decision focused on the following rules: (i) every deliberation in impeachment proceedings should be based on openly-cast votes; (ii) the special impeachment committee should be proportionally composed in accordance with the party leadership; and (iii) the Senate has the final say on the impeachment proceedings, while the Lower House has only the power to authorize the impeachment trial by the Senate. As a result, the STF invalidated the previous election of the special impeachment committee that was established by secret ballot.
From this trial on, the Court acted with increasing self-restraint. On April 15, in an extraordinary hearing held just two days before the Lower House was to vote to authorize Rousseff’s impeachment trial before the Senate, the 11 Justices gathered to decide claims filed by the government and other parties that attempted to suspend the impeachment proceedings. The motions questioned the congressional voting procedures and the scope and validity of the impeachment bid. During the session, which lasted more than seven hours, the STF rejected all claims and studiously avoided the merits of the impeachment, emphasizing that it lacked jurisdiction over interna corporis acts and that it was the sole responsibility of Congress to decide whether President Rousseff had committed the alleged crime of malversation.
- Annulment of the appointment of minister by President Rousseff (MS 34.070, interim measure granted 03/18/2016)
In March, an interim ruling issued by a single Justice suspended former President Lula’s appointment as Rousseff’s Chief of Staff. The rapporteur, Justice Gilmar Mendes, considered that Lula’s appointment was aimed solely at preventing lower court judge Sérgio Moro from issuing a preventive arrest warrant against him, as ministers are tried directly by the STF per the 1988 Constitution. Justice Mendes based his decision on a wiretapped private conversation between President Rousseff and Lula, leaked to the press by the lower court judge, which allegedly provided proof of the misuse of the cabinet appointment to avoid prosecution. Later, the STF ruled that both the wiretap and its release to the press were illegal. However, Justice Mendes’s unilateral decision was never examined by the Plenary.
- Lower House speaker suspended from office (AC 4070, decided 05/05/2016)
In May, the STF voted unanimously to approve a request by the Head of the Federal Prosecutor’s Office to suspend the speaker of the Lower House, Mr. Eduardo Cunha, from his duties as deputy and house speaker for obstructing a criminal investigation against him. The justices upheld an injunction issued hours before by Mr. Teori Zavascki, the justice presiding over the “Car Wash Operation” who was recently killed in a tragic plane crash. To justify the decision to remove Cunha from speakership, Justice Zavascki also considered that the congressman was indicted by the Court on graft charges in March and, therefore, could not hold office in the line of presidential succession.
- Defendants in criminal proceedings shall not occupy posts in the presidential line of succession (ADPF 402, injunction order decided 12/07/2016)
Brazil’s 1988 Constitution provides that the speakers of the Lower House and the Senate are the first and second authorities in the line of succession to exercise presidential authority in the event of a dual (temporary or permanent) vacancy of the presidential and the vice-presidential offices. In the Claim of Non-Compliance with a Fundamental Precept 402, it was argued that, if the authorities in the presidential line of succession are indicted by the STF, they must be removed from the post, given that the Constitution provides that the President shall be suspended from his duties if a criminal complaint against him or her is received by the STF. As the trial got underway, six justices voiced their opinions in favor of the claim, stating that defendants in criminal proceedings before the Court should step down from their positions in the line of succession. The trial was suspended at a request for further examination of the case.
Based on that majority opinion, the rapporteur of the case, Justice Marco Aurélio, in a unilateral decision, issued a preliminary order to remove Senate President Renan Calheiros from his post, just after he was indicted by the Court on charges of misusing public funds. However, the Senate resisted the ruling. Two days later, the STF, by a 6-3 vote, overturned the injunction, deciding that, although Senator Calheiros should be removed from the presidential line of succession, he could remain Senate President.
B. Rights and freedoms
- Enforcement of criminal sentences after first appellate ruling (HC 126.292, decided 02/17/2016)
In a decision on a writ of habeas corpus, the STF held that defendants who have their prison sentence affirmed on appeal can serve time before all appeals have been exhausted and a final decision is issued. This ruling overturned the Court’s precedent, set in 2009, which stated that the constitutional principle of the presumption of innocence prevented anyone from being arrested until an unappealable criminal sentence is issued. The previous understanding was considered by most justices to be an impunity loophole, as the Brazilian criminal system is fraught with statutes of limitations and an excessive number of appeals.
According to Justice Teori Zavascki’s opinion, joined by six other justices, a criminal conviction may be enforced provisionally even if an appeal to superior courts is still pending, since such courts are not allowed to revisit matters of fact and evidence, and such extraordinary appeals do not suspend the enforcement of sentences. Other members of the Court also adopted pragmatic arguments. Justice Luís Roberto Barroso, for instance, stated that the enforcement of criminal sentences after the first appellate ruling is necessary to ensure the credibility of the criminal justice system, as it not only helps put an end to lawyers’ dilatory tactics but also reduces selectivity (since white-collar criminals were seldom arrested) and the sense of impunity in society. The dissenting opinions argued, however, that this shift would disrupt the guarantee of the presumption of innocence and raised concerns about the already overcrowded prisons. Shortly thereafter, the Plenary of the Court twice reaffirmed the habeas decision, which is now binding upon every court.[6]
- Unconstitutionality of the incidence of the crime of abortion in cases of abortion during the first trimester of pregnancy (HC 306, decided 11/29/2016)
The First Panel of the Court ordered the release from pretrial detention of a doctor and employees of a clandestine abortion clinic who had been arrested for the practice of the crimes of abortion and conspiracy to commit crimes. The order of habeas corpus was granted on two grounds. First, the original pre-trial detention did not meet the legal requirements. Second, as per Justice Luís Roberto Barroso’s opinion, which was joined by the majority of the members of the First Panel, the criminalization of the voluntary termination of pregnancy carried out during the first trimester violates several fundamental rights of women (such as their reproductive rights, autonomy, physical and psychological integrity, and right to gender equality), as well as disproportionately harms poor women, who are forced to resort to precarious clandestine clinics, which offer high risks of injury, mutilation, and death.
Moreover, Justice Barroso stated that the treatment of abortion as a crime also violates the principle of proportionality since: (i) it constitutes an unsuitable measure by which to protect the life of the unborn, as criminalization does not have a relevant impact on the number of abortions practiced in the country; (ii) it is possible for the State to avoid the occurrence of abortions by more effective and less harmful measures than criminalization, such as sexual education, distribution of contraceptives, and support for women who wish to carry the pregnancy to term; and (iii) the measure is disproportional in the narrow sense, as it produces social costs (public health problems and deaths) that clearly outweigh its benefits.
Despite not decriminalizing abortion nor setting a binding legal precedent, the ruling does indicate that at least some of the Court justices are ready take a further step to guarantee women’s reproductive rights.
- Rodeo sport of “vaquejada” and animal rights (ADI 4983, decided 10/06/2016)
The Court’s Plenary, by a close vote of 6-5, struck down as unconstitutional a law aimed at acknowledging “vaquejada”, in which cowboys on horseback chase a bull across an arena and attempt to pull it to the ground by twisting and pulling its tail as a rodeo sport and cultural practice. Based on several technical reports, the majority opined that “vaquejada” inflicts needless suffering on animals in violation of the Constitution’s prohibition of animal cruelty. Although the STF has not explicitly recognized that animals are entitled to fundamental rights, it has certainly granted animals “a peculiar dignity” and “the moral right not to be subjected to cruelty”. The dissenting justices argued that “vaquejada” is a constitutionally protected cultural practice that does not necessarily impose cruel treatment on the bull. The ruling sparked angry reactions among practitioners and supporters, and a backlash has begun, as Congress already passed a law that recognized “vaquejada” as part of Brazil’s intangible cultural heritage, and is making every effort to approve a constitutional amendment overruling the decision.
- Health rights litigation (ADI 5501-MC, decided 05/19/2016)
Health rights litigation was a recurring issue on the Court’s agenda in 2016. In May, the STF examined the constitutionality of a law that authorized the production and distribution of a compound that is hailed by some as a miracle cancer cure, despite both a dearth of clinical tests proving its safety and efficacy as well as a lack of regulatory approval by the Brazilian Health Surveillance Agency (ANVISA). The “cancer pill” was first developed by a chemist at the University of São Paulo and illegally distributed to patients. When the university cut off its distribution and shut down the lab, lower courts began granting orders for the university administration to provide the pill to hundreds of persons with terminal cancer. Next, responding to popular pressure, Congress passed a bill to legalize use of the untested pill. Less than a month later, however, the STF’s majority granted an injunction to suspend the effectiveness of the law. The Court held that the legalization of the untested compound violates the constitutional duty to safeguard the people’s health and the separation of powers.
In September, the STF has begun to review two extraordinary appeals (REs 566471 and 657718) which generate a broader debate on the impacts of strong individual litigation of health rights on frustrating inequities in health service delivery and disrupting public policies. In these cases, the Court will decide whether the courts can compel the State to provide access to high-cost drugs that are not listed on the public health system and to drugs not approved by ANVISA. The rapporteur, Mr. Marco Aurélio, considered that the State has a duty to supply high-cost medicines for patients who are unable to pay for them, regardless of their cost, but voted against providing access to unregistered drugs. The other two justices who had already cast their votes, Justices Barroso and Fachin, dissented. They opined that the judicial distribution of drugs not covered by the official list exacerbates inequities within the healthcare system, and thus proposed criteria to make this case the exception.
- Public servants’ pay cuts during strikes (RE 693456-RG, decided 10/27/2016)
The 1988 Constitution provides for the right of public servants to strike, but it left the matter to be enacted into law by the Legislature. Almost 30 years after the Constitution took effect, the law had still not been passed. In 2007, the Court itself addressed the matter and ordered that the law dealing with private sector strikes be extended to public servants, by analogy, until Congress decides to pass a law for public servants. Up to the present day, however, the Congress has failed to pass such a law.
In view of the multiplications of strikes during 2016, the Court discussed the constitutionality of pay cuts during public servant strikes. By a 6-4 vote, the Plenary decided that the public administration should reduce the strikers’ salaries unless the strike is motivated by the illegal conduct of the State. The Court accepted, however, an agreement to compensate the days off during the strike by working extra hours. The four dissenting justices understood that the pay cuts cannot be unilaterally determined by the public administration; rather, they must depend on a previous court ruling declaring the illegality of the strike.
C. Foreign, international, and/or multilateral relations
- Statute of limitation for crimes against humanity (Ext 1362, decided 11/09/2016)
The STF, by a narrow 6-5 vote, rejected Argentina’s request to extradite an Argentinian citizen accused of kidnapping and murdering leftist political activists during the military regime. Although the Tribunal agreed with the applicant State that those acts were crimes against humanity, the majority opinion held that they are subject to statutes of limitation under Brazilian law, as the country has not signed the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
V. Conclusion
In 2016, the STF was thrust into the political turmoil that has engulfed the country, and one conclusion is inevitable: the Court has found itself in a starring role, one that is possibly unparalleled by any other democratic period in Brazil’s history. Matters of substantial political impact, moral disagreement, and social rights, for instance, have increasingly been subject to its scrutiny. Naturally, the Court’s skyrocketing influence has led to more clashes with the political realm. Moreover, the Court’s increasing purview has also highlighted some of the STF’s longstanding flaws, such as its justices’ unbalanced powers and inability to deliver an “opinion of the Court”. Much work still remains for the STF to engineer an optimal design for decision-making, but, if there is one lesson to be learned from 2016, it is that the comparative constitutional law field should pay more attention to the developments of the Brazilian Supreme Court.
[1] Brazilian Supreme Federal Court Justice; Tenured Professor of Constitutional Law at the Rio de Janeiro State University.
[2] Tenured Professor of Constitutional Law at the University of Brasília.
[3] Clerk of the Brazilian Supreme Federal Court; Professor of Constitutional Law at the University Center of Brasília.
The final version of this paper was edited by Sara Huddleston.
[4] Only more recently, in the most prominent cases, did the STF begin to formulate a statement that represents the majority opinion.
[5] Ran Hirschl, “The Judicialization of Mega-Politics and the Rise of Political Courts” (2008) 11 ARPS 93.
[6] See STF, ADC 43-MC; ARE 964246-RG.
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