Judiciary Rule or… Role?

Remember, remember… the 29th of November!!!

November 29th, 2016, is one of those days to be remembered.

Chapecoense soccer team and some journalists died in a terrible airplane crash going to Colombia; our Senate approved “The End of the World” Constitutional Amendment, Congressmen were having a cocktail while people protesting against it were being attacked outside by the Riot Police with its cavalry, lots of tear gas and rubber bullets; and our Supreme Court‘s First Chamber kind of ruled that abortion should not be regarded as a crime if done during the first three months pregnancy. 

The Supreme Court’s decision is a solace among such bad news, is a relief telling us we can still believe in humanity… but…

Even though we have an immediate comfort in the progress this decision represents, we should be cautious, take a step back, think about it and question ourselves instead of taking the impulse to celebrate in social medias.

I support abortion decriminalization, but the Supreme Court’s attitude should be criticized (not condemned). 

Supreme Court’s (STF) activism should be, indeed, heavily criticized.

The debate I intend to bring to the surface is not about matter, but form.

This STF’s abortion case was about a habeas corpus questioning criminal procedures and asking for the immediate release of the defendants who were illegally in jail. It was being judged by STF’s First Chamber, not the full court.

Therefore, even though the case’s subject was questioning the form, the criminal procedure, Justice Luis Roberto Barroso took the opportunity to speak his mind in his vote and raise the hypothesis – with excellent arguments I must say – that the abortion-crime is unconstitutional and, since our Criminal Law Code (1940) is prior to the Constitution (1988) it should not have been received by our legal system.

I have at least five considerations to make:

1 – since abortion is a delicate subject and of great importance, it should not take place in one of STF’s chambers, but in the full court, which is the appropriate arena for the democratic debate, including the civil society, to take place;

2 – even though I’m fond of this non-reception thesis, the abortion-crime is widely applied both by the police force and first instance courts all over Brazil. Which means that our first layer of Constitutionality Control (diffuse control) understands this crime as valid and in effect. An understanding that could be reverted using a proper action (Judicial Review or Constitutionality Control) to this end, the “Allegation of Disobedience of Fundamental Precept“;

3 – but, the ideal way to change such a complex public policy should be to abide to the Constitutional order (article 2º): Legislative, Executive and Judiciary – or the way I said in item 2, above;

4 – if this precedent is going to be adopted by the STF this time forward in all individual appeals that reach the court, how are going to be the Legislative and Executive branches competencies about this subject’s complexity? In this way, we might be entering in a paradoxical state of affairs since neither the Legislative nor the Executive has proper public policies suited to abortion as a matter of public health. There’s no educational, preventive and contraceptive program, psychological support and counseling for pregnant women and/or a Public Health System program designed to this end. Can the STF dictate the State’s Public Policies by its institutional behavior ruling individual cases? Is the Judiciary who decides it or the democratically elected powers?

5 – maybe it’s because this kind of activism that STF’s power has been increasing. It seems we’re becoming a Juristocracy. It is because this STF’s limitless power tune that Fundamental Rights and Guarantees has been eroded, like, for example: inviolability of the home; inviolability to individual privacy – banking secrecy; presumption of innocence – which not even the Legislative could change since it is an unamendable clause; and, sooner or later, labor rights (subcontracting of core competencies).

When the Supreme Court’s activism is eroding important Fundamental Rights and Guarantees it’s hard to celebrate such a good and relevant decision.

Of course, we can celebrate it, but with caution and reservations.

Next, in the following day, Justice Barroso gave an interview explaining his vote. 

I guess I’m not able to say if what he is doing is right or wrong yet… I still have a long study road ahead of me to settle a position about such complex subjects. But I can say that Justice Barroso’s protagonism makes sense.

Prof. Carlos Alexandre de Azevedo Campos is a pupil from UERJ’s Law School, where he now lectures. His Ph.D. thesis advisor was Prof. Daniel Sarmento, also a lecturer at UERJ Law School and former pupil of Justice Barroso at UERJ Law School, before he went to the Supreme Court.

Prof. Carlos’ Ph.D. thesis subject was about the “Unconstitutional State of Affairs“, and Prof. Daniel Sarmento represents PSOL party in a case to declare the Unconstitutional State of Affairs in Brazil’s prison system at STF.

Being very briefly, they argue that one of the virtues of the Unconstitutional State of Affairs is the STF’s role before both Legislative and Executive branches’s institutional blockage in insuring the Fundamental Rights and Guarantees. When the Supreme Court declares the Unconstitutional State of Affairs of a case it assumes the role in provoking and fostering a broad debate among various institutional and social agents, like organs, institutions and federative entities that should be held responsible for addressing to that deficient public police in its whole complexity. It’s kind of a supervisory jurisdiction whose goal is to ensure the, until then, non-existent or deficient Fundamental Rights and Guarantees.

So, nothing more reasonable than to expect Justice Barroso’s initiative to “provoke” the society to act. Therefore one of the authorities from Constitution’s Article 103 can propose a proper Judicial Review on this subject so that the STF could, thus, make a democratic decision after debating along with the civil society in the due process of law.

Can the STF assume such a Role, or in doing so will we be living under the Judiciary Rule?


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