The Senate approved on Wednesday (23/11) the Proposed Amendment to the Constitution (PEC) on monocratic decisions, which limits decisions taken individually by ministers of the Federal Supreme Court (STF). The initiative went through two rounds with the same score, 52 votes in favor and 18 against. It is a nod from the president of the Senate, Rodrigo Pacheco (PSD), and the president of the Constitution and Justice Commission (CCJ), Davi Alcolumbre (União-AP), to Bolsonaro’s parliamentarians, who have been demanding the approval of instruments that weaken the Judiciary. The text now goes to the Chamber of Deputies, where it is likely to face more resistance.
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Main Points
- The PEC prohibits individual decisions that suspend “acts of the President of the Republic, the President of the Federal Senate, the President of the Chamber of Deputies or the President of the National Congress”
- The proposal provides for only one exception, which is when the Judiciary is on recess. Even so, the monocratic decision will need to be confirmed in plenary within 30 calendar days
- The measure comes into force 180 days after being enacted
- It is effective even on monocratic decisions taken before promulgation, but which during the period of validity are pending analysis by the plenary
Changes to the Original Text
The rapporteur, Esperidião Amin (PP), accepted amendments and made changes to the original text written by senator Oriovisto Guimarães. Amin softened one of the effects of the initiative. With the new wording, individual decisions in the STF will continue to be taken to annul normative acts of general effect, which are generally government decisions.
Impactful Individual Decisions
Targeted by the Senate, individual decisions by Court ministers have already been responsible for impacting measures. In 2016, amid the crisis surrounding Dilma’s government, STF minister Gilmar Mendes suspended Lula’s appointment to the Civil House, after the PT member had already taken office.
In the case of the secret budget, in November 2021, shortly before the Judiciary recess, minister Rosa Weber suspended the payment of rapporteur amendments to the Union Budget. The previous year, the appointment of the then director general of Abin, Alexandre Ramagem, as head of the Federal Police, was also suspended by Moraes.
In 2023, the State Law and the decision that suspended a Porto Alegre law that established 8 January as “Patriot’s Day” are among the decisions that ended up being considered monocratic.
Most Decisions
Data from the Supreme Court show that 78,031 monocratic decisions were made in the Court this year. The number represents 83% of the total decisions handed down by the STF this year, 93,436.
Individual decisions, however, have already been the target of internal STF rules that have sought to give greater “collectivity” to what is decided. At the end of last year, still under the presidency of minister Rosa Weber, the Court made a regulatory change that determined that the reporting minister should immediately submit monocratic decisions involving arrest, removal from public office or interruption of any government policy to the plenary.
Government Leader
Lula government ministers assess that Senator Jaques Wagner (PT) took the government into the conflict that exists between the Senate and the Federal Supreme Court (STF). Government leader in the House, Wagner voted in favor of the Proposed Amendment to the Constitution (PEC) that restricts monocratic court decisions. Caught by surprise, members of the government criticized the position. For them, Wagner’s vote diluted the weariness of the Senate, by including the government in the fight with the court. The assessment is that Wagner’s position could harm the progress of agendas of interest to the Government in the STF. Court magistrates already claim that dialogue with the government leader in the Senate has been hampered.
Analysis:
The PEC approved in the Senate is not a major threat by itself. It was softened and ended up having the main effect of containing the monocratic decisions of court ministers. There are those who see a violation of an essential clause of the Constitution as it is supposedly an interference of one Power over another. Such individual decisions, however, generated distortions and suspicions about their adequacy, given the different interpretative lines of the judges. The suspension of laws voted by Congress and sanctioned by the Executive by a single judge does not seem convincing. The point is that this is not just the proposal now approved. This is a wave of attacks on the Federal Supreme Court. Added to this, Ministers of the Federal Supreme Court classified the approval in the Senate of the PEC of the monocratic decisions as an attack by the Legislators and stated that this harms the court’s dialogue with Lula’s government, since the leader of the government in the Senate, Jaques Wagner (PT-BA), voted in favor of the proposal.
