Balancing Within the Context of Brazilian Constitutionalism: The Supremo Tribunal Federal’s Shift to Activism

Benvindo, Juliano Zaiden

doi:10.1007/978-3-642-11434-2_3

Balancing Within the Context of Brazilian Constitutionalism: The Supremo Tribunal Federal’s Shift to Activism

Juliano Zaiden Benvindo²

Chapter
First Online: 01 January 2010

666 Accesses

Abstract

As an interesting example of the current movement towards judicial activism, the Brazilian Federal Supreme Court (Supremo Tribunal Federal) reveals how a different constitutional reality can lead, by using similar methodologies and interpretations of basic rights, such as the principle of proportionality (and thus balancing) and the idea of subjective rights as objective principles of a total legal order, to comparable outcomes to those observed in Germany. Except for the untranslatable differences between both countries, it is possible to verify that, also in Brazil, there is a growing process of juridification of politics exactly after a period of authoritarianism and the rebirth of a constitutional democracy. This movement is also followed by the attempt to “rationalize” decision-making, providing thereby decisions that seem not only more legitimate but also the rational result of a careful interpretation of the “Guardian of the Constitution”. The question, nevertheless, is how Brazilian democracy, which must preserve the principle of separation of powers, deals with this reality, and how the exercise of citizenship is preserved in this process.

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Notes

1.
Gilmar Mendes, interview by Izabela Torres, “Entrevista – Gilmar Mendes,” Correio Braziliense, Brasília (August 17, 2008), translation mine.
2.
See the second chapter.
3.
Gilmar Mendes, interview by Izabela Torres, “Entrevista – Gilmar Mendes,” Correio Braziliense, Brasília (August 17, 2008), translation mine.
4.
Bernhard Schlink, “German Constitutional Culture in Transition,” Cardozo Law Review 14 (1993): 729.
5.
See Marcelo Andrade Cattoni de Oliveira, “O Projeto Constituinte de um Estado Democrático de Direito,” in 15 Anos de Constituição: História e Vicissitudes, ed. José Adércio Leite Sampaio (Belo Horizonte: Del Rey, 2004), 149.
6.
See Enzo Bello, “Neoconstitucionalismo, Democracia Deliberativa e a Atuação do STF,” in Perspectivas da Teoria Constitucional Contemporânea, ed. José Ribas Vieira (Rio de Janeiro: Lumen Juris, 2007), 33.
7.
José Alfredo de Oliveira Baracho Júnior, “O Supremo Tribunal Federal e a Teoria Constitucional,” in 15 Anos de Constituição: História e Vicissitudes, ed. José Adércio Leite Sampaio (Belo Horizonte: Del Rey, 2004), 211, translation mine.
8.
Robert Alexy, Theorie der Grundrechte (Frankfurt a.M: Suhrkamp, 1994). See the next chapter.
9.
It is possible to associate the idea of negative legislator with Hans Kelsen’s discussion of the constitutional courts’ role, a simple consequence of his premise that adjudication is not qualitatively different from legislation, except for creating singular norms for the case. For this purpose, see Hans Kelsen, Wer soll de Hüter der Verfassung sein? (Berlin: Rotschild, 1931); Hans Kelsen, “Wesen und Entwicklung der Staatsgerichtsbarkeit.” Berichte [der] Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Wien am 23. und 24. April 1928, Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer 5 (1929): 30–88, 117–123.
10.
See Bello, “Neoconstitucionalismo, Democracia Deliberativa e a Atuação do STF,” 31 ff.
11.
According to the German Basic Law: Art. 100 (1): “If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law.”
12.
For a detailed analysis of this American influence in the diffuse model of judicial review and the limits of its introduction in Brazilian pre-Republican reality, see Álvaro Ricardo de Souza Cruz, “Habermas, Ação Estratégica e Controle de Constitucionalidade,” in 15 Anos de Constituição: História e Vicissitudes, ed. José Adércio Leite Sampaio (Belo Horizonte: Del Rey, 2004), 219–280.
13.
The Extraordinary Appeal is the name of the constitutional appeal filed against a lower decision, based normally on a possible violation of the Constitution (art. 102, III, of the Constitution of 1988).
14.
The only possibility to extend, in the diffuse model, the effects of the decision to other similar cases occurs with the Senate’s participation, which can suspend the execution of the legal statute. This mechanism has existed in Brazilian constitutionalism since the Constitution of 1934 (art. 90, IV). It is now established in art. 52, X, of the Federal Constitution of 1988. Gilmar Mendes provides a detailed analysis of this institute, who, nevertheless, as a supporter of the abstract and concentrated model of judicial review, understands it as still existing merely due to history, whose function, especially after the possibility of this court to suspend the efficacy of the law in the abstract judicial review, is only to give publicity to the STF’s decisions. For him, the STF’s own decisions have already the normative power to suspend the law, thereby conferring on the Senate solely the duty to publish the decision. For this purpose, see Gilmar Mendes, “O papel do Senado Federal no Controle de Constitucionalidade: um Caso Clássico de Mutação Constitucional,” Revista de Informação Legislativa, no. 162 (April, June 2004): 149–168. Against this understanding, by presenting a favorable approach to the Senate’s suspension of the legal effects, see Lenio Luiz Streck, Marcelo Andrade Cattoni de Oliveira and Martonio Mon'Alverne Barreto Lima, A Nova Perspectiva do Supremo Tribunal Federal sobre o Controle Difuso: Mutação Constitucional e Limites da Legitimidade da Jurisdição Constitucional, http://www.mundojuridico.adv.br/ sis_artigos/artigos.asp?codigo=912 (accessed July 7, 2009).
15.
For an investigation of the STF’s history, and particular this influence of the American model of judicial review, see Lêda Rodrigues Boechat, História do Supremo Tribunal Federal (Rio de Janeiro: Civilização Brasileira, 1991); Oscar Vilhena Vieira, Supremo Tribunal Federal: Jurisprudência Política (São Paulo: Malheiros, 2002); Marcelo Paiva dos Santos, A História Não Contada do Supremo Tribunal Federal (Porto Alegre: Sergio Antonio Fabris, 2009); Gilmar Mendes, Controle de Constitucionalidade: Aspectos Jurídicos e Políticos (São Paulo: Saraiva, 2004).
16.
Art. 59, § 1o., b of the Constitution of 1891.
17.
See Oscar Dias Corrêa, “O 160o. Aniversário do STF e o Novo Texto Constitucional,” Arquivos do Ministério da Justiça, no. 173 (1988): 67.
18.
See Oscar Dias Corrêa, O Supremo Tribunal Federal, Corte Constitucional do Brasil (Rio de Janeiro: Forense, 1987), 6.
19.
In Brazilian constitutional reality, it is possible the judicial review of a constitutional amendment, when it violates the Federal regime, the basic rights and guarantees, the separation of powers or the direct, secrete, universal and periodic vote, according to art. 60, §4 of the Constitution of 1988.
20.
The Constitution of 1934 (art. 12, § 2) introduced the possibility of the Attorney-General of the Republic (Procurador Geral da República), responsible at that time for judicially representing the interests of the federal government, to file an action (Representação Interventiva) directly in the Supremo Tribunal Federal in order to question any action or omission against the fundamental principles of the federative order (art. 7, I, a to h), which could lead to a federal intervention in the state. The Constitution of 1946 improved this model, inasmuch as the Attorney-General of the Republic could file the Representação Interventiva to question the constitutionality of state laws (art. 8) that infringed some sensible principles (republican representative system, separation of powers, municipal autonomy, judiciary’s guarantees, periodicity of elections, etc, according to art. 7, VII). The declaration of unconstitutionality, nevertheless, did not necessarily lead to the intervention in the state, for the simple decision already had the power to suspend the effects of the state law. This model was then expanded in 1965, with the constitutional amendment 16/65, according to which exclusively the Attorney-General of the Republic could file an action to question the constitutionality of not only state laws but also federal legal statutes (art. 101, n. 1, k). Unlike the previous system, now the questions were not merely related to a certain violation of sensible principles involving a conflict between the Federal Union and a state, but rather the defense itself of the Constitution against unconstitutional laws. It is important to mention that this system, whose decisions had an erga omnes effect, was born with the purpose of reducing the excess of appeals in the STF, and not, in fact, of expanding the possibilities of protection of individual rights (See, for this purpose, Vieira, Supremo Tribunal Federal: Jurisprudência Política, 120–126; Gilmar Mendes, Jurisdição Constitucional: Controle Abstrato de Normas no Brasil e na Alemanha (São Paulo: Saraiva, 2004), 23–38 and 64-77; Cruz, “Habermas, Ação Estratégica e Controle de Constitucionalidade,” 245–257).
21.
Mendes, Jurisdição Constitucional, XII, translation mine.
22.
According to the Brazilian Constitution of 1988: “Article 103. The following may file an action of unconstitutionality and the declaratory actions of constitutionality:
I – the President of the Republic;
II – the Directing Board of the Federal Senate;
III – the Directing Board of the Chamber of Deputies;
IV – the Directing Board of a State Legislative Assembly or of the Legislative Chamber of the Federal District;
V – a State Governor or the Governor of the Federal District;
VI – the Attorney-General of the Republic;
VII – the Federal Council of ^the Brazilian Bar Association;
VIII – a political party represented in the National Congress;
IX – a confederation of labor unions or a professional association of a nationwide nature (...)”
23.
Mendes, Jurisdição Constitucional, 38, translation mine.
24.
See Menelick de Carvalho Netto’s analysis of the participation of many and distinct civil organizations in the preparatory works for the elaboration of the new Constitution, which was not concentrated on some personalities, but rather on the direct mobilization and participation of the population. There was a strong receptivity to this participation by the legislators and the internal legal statute of the constituent process. According to Carvalho Netto, “it was from this process, profoundly democratic, that the Constitution earned its original legitimacy, resulting from an authentic manifestation of the constituent power, by reason of the employed process” (Menelick de Carvalho Netto, “A Revisão Constitucional e a Cidadania: a Legitimidade do Poder Constituinte que deu Origem à Constituição da República Federativa do Brasil de 1988 e as Potencialidades do Poder Revisional nela Previsto,” Revista do Ministério Público Estadual do Maranhão, no. 9 (2002): 45, translation mine).
25.
Gilmar Mendes, New Challenges of Constitutional Adjudication in 21st Century: A Brazilian Perspective, Lecture presented in Washington (US), October 10, 2008, http://www.stf.jus.br/arquivo/cms/noticiaArtigo Discurso/anexo/Jurisdicao_Constitucional_ no_Seculo_XXI_v__Ing.pdf (accessed July 14, 2009).
26.
The Brazilian Constitution provides nowadays many mechanisms to access the judiciary in order to guarantee civil rights and the democratic process (Ação Civil Pública, Ação Popular, Mandado de Segurança, Mandado de Injunção, Habeas Corpus, Habeas Data, Ação Direita de Inconstitucionalidade, Ação Direta de Inconstitucionalidade por Omissão Ação Declaratória de Constitucionalidade, Arguição de Descumprimento de Preceito Fundamental, among others). For a detailed analysis of these actions, see Gilmar Mendes, Jurisdição Constitucional: Controle Abstrato de Normas no Brasil e na Alemanha (São Paulo: Saraiva, 2004); Gilmar Mendes, Arguição de Descumprimento de Preceito Fundamental (São Paulo: Saraiva, 2007); Gilmar Mendes and Ives Gandra da Silva Martins, Controle Concentrado de Constitucionalidade (São Paulo: Saraiva, 2009); Gilmar Mendes, Direitos Fundamentais e Controle de Constitucionalidade, (São Paulo: Saraiva, 2004); André Ramos Tavares, Arguição de Descumprimento de Preceito Fundamental (São Paulo: Atlas, 2001); Motauri Ciochetti de Souza, Ação Civil Pública (São Paulo: Malheiros, 2003); Jose Adonis Callou de Araújo Sá, Ação Civil Pública e Controle de Constitucionalidade (São Paulo: Del Rey, 2002); Luzia Nunes Dadam, Ação Popular – Controle Jurisdicional (Rio de Janeiro: Lumen Juris, 2000); Celso Agricola Barbi, Mandado de Segurança, (Rio de Janeiro: Forense, 2008); Hely Lopes Meyrelles, Mandado de Segurança (São Paulo: Malheiros, 2008); Heráclito Antônio Mossin, Habeas Corpus (São Paulo: Manole, 2008); J. E. Carreira Alvim, Habeas Data (Rio de Janeiro: Forense, 2001).
27.
See Lênio Luiz Streck, Entrevista ao Conjur: Lênio Streck Fala sobre o STF, http://www.conjur.com.br/2009-mar-15/entrevista-lenio-streck-procurador-justica-rio-grande-sul (accessed July 14, 2009).
28.
See Jürgen Habermas, Between Facts and Norms (Cambridge: Polity Press, 1996), 199. This debate will be examined, with more details, in the sixth chapter.
29.
See Streck, Entrevista ao Conjur: Lênio Streck fala sobre o STF.
30.
Indeed, during the military regime, not only were the constitutional guarantees of the judiciary suspended, but also some crucial legal statutes, such as the Institutional Acts (which were authoritarian legal statues the government directly enacted usually restricting the exercise of basic rights), were not under the judiciary’s authority. Besides, no rarely were judges, and even STF’s Justices, automatically compulsorily retired. This circumstance promoted a judiciary’s silence, and the STF, after these confrontations, no longer opposed any resistance to the military regime. See, for this purpose, Vieira, Supremo Tribunal Federal: Jurisprudência Política, 123–126.
31.
Ibid., 123, translation mine.
32.
Mendes, New Challenges of Constitutional Adjudication in the 21 ^st Century: a Brazilian Perspective.
33.
See Streck, Entrevista ao Conjur: Lênio Streck fala sobre o STF.
34.
See the examples of judicial order to raise the pension of retirees paid by the Brazilian Social Security Service (Instituto Nacional de Seguridade Social) in 1992, whose disobedience caused the imprisonment of the president of that institution; the prohibition of the Brazilian Central Bank (Banco Central do Brasil) to put into practice a program of financial reorganization framed to prevent a crisis of confidence in Brazilian banking industry; the imprisonment of the President of the Brazilian Central Bank, in 1991, by virtue of his refusal to suspend the dissolution of a brokerage firm; the order to reduce the monetary correction of incoming tax penalties, according to the technical definition deemed correct by the federal revenue service; the judicial liberation of the blocked Cruzados Novos (Brazilian currency at that time) during the government of President Fernando Collor de Mello, among others. For an accurate analysis, see Marcus Faro de Castro, “The Courts, Law and Democracy in Brazil,” International Social Science Journal, no. 152 (June 1997): 241–252; Vieira, Supremo Tribunal Federal: Jurisprudência Política, 135 ff.
35.
This reality is even more evident, if we remark that, in Brazil, there is the Provisional Measure (Medida Provisória), which, although being a mechanism for the government’s legal production to be used merely in situations of relevance and urgency, has been widely employed in many other circumstances with the parliament’s collaboration. The Provisional Measure, nonetheless, does not pass through the procedures where a more accurate debate on the constitutionality of its contents takes place, as it happens with legal statutes. Indeed, in Brazilian history after the Constitution of 1988, the use of Provisional Measures has become a generalized mechanism of legislation, which has often been passively accepted by the parliament, and not really controlled by the STF in what refers to its constitutional requirements of relevance and urgency (art. 62 of the Constitution of 1988). See, for this purpose, Vieira, Supremo Tribunal Federal: Jurisprudência Política. 219. For a critical analysis of the institutional disrespect for the due process of law and the constitutional process within this context, see Marcelo Andrade Cattoni de Oliveira, “Devido Processo Legislativo e Controje Jurisdicional de Constitucionalidade no Brasil,” in Jurisdição Constitucional e Direitos Fundamentais, ed. José Adércio Leite Sampaio (Belo Horizonte: Del Rey, 2003).
36.
See Vieira, Supremo Tribunal Federal: Jurisprudência Política, 125; Cruz, “Habermas, Ação Estratégica e Controle de Constitucionalidade,” 251–257.
37.
The Writ of Injunction is a constitutional writ whose purpose is to preserve the exercise of subjective rights and freedoms, as well as prerogatives inherent to nationality, sovereignty and citizenship, in case of a lack of regulatory norm for this purpose. The court, at the beginning of its activities after the Constitution of 1988, had a very restrictive attitude in this matter by stating that, if the writ were granted, the effect was merely an order to the legislator to take the appropriate measures, without any sanction (See MI n. 107, published on 08.02.1991). This understanding, nonetheless, began to change over the years. In the judgment of the MI n. 283 (published on 10.02.1992), the court determined a deadline to correct the omission caused by the legislature’s delay, establishing besides the sanction of considering the legal rights, now denied due to omission, automatically granted. Similar understanding happened in the analysis of the MI n. 232 (published on 03.27.2002). The most radical innovation, nonetheless, would happen only in 2007, when the STF, in the judgment of the MI n. 670 (published on 10.31.2008) and MI n. 708 (published on 10.31.2008), determined that, by reason of an omission regarding the regulation of public servants’ strike, the Law n. 7.783/89, applicable to strikes in the private sector, should be extended to the public domain where appropriate. As Gilmar Mendes remarks “the Court, moving away from the course initially followed of attaining to declare the existence of legislative omission and issuing a specific regulating norm, without any commitment to the exercise of a legislative function, began to accept the possibility of provisory regulation by the judiciary itself” (Gilmar Mendes, Constitutional Jurisdiction in Brazil: The Problem of Unconstitutional Legislative Omission, http://www.stf.jus.br/arquivo/cms /noticiaArtigoDiscurso/ anexo/Omisao_Legislativa_v__Ing.pdf (accessed July 7, 2009), 12).
38.
According to Gilmar Mendes, “the injunctive writ is granted based on the constitution whenever there is a lack of implementing rule that makes it impossible to exercise constitutional rights and freedoms, as well as prerogatives that are inherent to nationality, sovereignty and citizenship. Thus, the injunctive writ must be aimed at non-compliance with the constitutional duty to legislate, which in some way may affect rights that are ensured by the constitution (lack of a regulatory norm that makes it impossible to exercise constitutional rights and freedoms and prerogatives that are inherent to sovereignty and citizenship). Such omissions may have either an absolute or total character or be partial in nature” (Gilmar Mendes, Controlling Constitutionality in Brazil, Lecture presented at Harvard Law School: http://www.stf.jus.br/arquivo/cms/noticiaArtigo Discurso/anexo/Controle_ de_Consti tucionalidade_v__Ing.pdf (accessed July 14, 2009), 4).
39.
The purpose of this Direct Action of Unconstitutionality due to Omission (ADIo), an instrument of the abstract system of judicial review, is to make constitutional norms effective, informing thereby the appropriate authority to adopt the necessary measures and, in case of the government, to do it within thirty days. Right after the Constitution of 1988, the STF, when it favorably decided the case, merely notified the responsible organ of the decision and the need to provide the required measure as a means to overcome the omission (See ADI 2520, published on 03.15.2002; ADI 2525, published on 04.05.2002; ADI-MC 267, published on 05.19.1990; ADI-MC 1458, published on 09.20.1996). Moreover, in case the legislative procedure had already started, even when during many years (inertia deliberandi), the precedent was that ADIo, in these cases, could not be filed (See ADI 2.495 – published on 08.02.2002). This thinking changed recently. Now, with the STF’s more active approach, this court has understood that, in some specific cases, it can establish a reasonable term for the parliament to supply the omission (See, for this purpose, ADI 3.682, published on 09.06.2007).
40.
See, for this purpose, the decisions MI n. 107; MI n. 232; MI n. 283; MI n. 419–9.
41.
Indeed, between 1988 and 1992, 113 Direct Actions of Unconstitutionality (Ações Diretas de Inconstitucionalidade – ADI) were filed by political parties, but only 6 were judged at the beginning of 1993. For this purpose, see Castro, “The Courts, Law and Democracy in Brazil,” 245.
42.
Ibid., 246.
43.
Ibid., 243.
44.
Many of these appeals are the Agravo de Instrumento, which seeks only the discussion of whether the STF should judge the question, after the lower court had decided that it was not a constitutional matter, and therefore not on the STF’s competence.
45.
Marcus Faro de Castro argues that this judiciary, even though shifting to a more active and audacious attitude, did not lead to the improvement of a stable judicial power from the institutional standpoint, inasmuch as this shift was not followed by a clear definition of the judiciary’s institutional role regarding its political participation in this new democratic system. For this purpose, see Castro, “The Courts, Law and Democracy in Brazil,” 244 ff.
46.
According to art. 3 of the Temporary Constitutional Provisions Act, “the revision of the constitution shall be effected after five years as of its promulgation, by the vote of the absolute majority of the members of the National Congress in a unicameral session.”
47.
Menelick de Carvalho Netto develops a critical analysis of the abstract system of judicial review, which, in his opinion, goes in the opposite direction of a constitutional experience already solidified in Brazilian reality. His words: “(…) I would like to highlight another challenge, not less serious, even though of internal origin: the importation through legal means of typical premises of the concentrated or Austrian judicial review. Our premises are of a tradition much older and also better in terms of experience and constitutional living than the German one, extremely more sophisticated and much more effective as a guarantee of the idea of concrete freedom and equalities. The basic principles of the diffuse judicial review are put in jeopardy, which constitute our heritage of more than one hundred years, a heritage expressing the comprehension of the Constitution as everyone’s authorial work. The diffuse judicial review makes everyone of us an authorized interpreter of the Constitution, insofar as it did not authorize the legislature nor any other power to violate basic rights, and in which the constitutional matter, for it always relates to the basic rights of all of us, has recognized itself the authority for discussion, investigation and decision of this issue by any judge in any concrete case whatsoever appearing to him. It is important to remark the tremendous effort Peter Häberle endeavors to be able to affirm the existence of an open community of interpreters of the German Constitution, which, for us, is a premise, a basic point of departure for more than one hundred years. It is clear that it is no longer possible the artificiality of the Kelsenian standpoint, absolutely overcome, as Prof. Lênio Streck sustained. The authority in charge to apply the Constitution cannot do whatever he wants from the constitutional text; there are boundaries, which are intersubjectively shared, and the greatest guarantee of any constitution calls citizenship, a live and active citizenship, careful of its rights” (Menelick de Carvalho Netto, “A Hermenêutica Constitucional e os Desafios Postos aos Direitos Fundamentais, ” in Jurisdição Constitucional e Direitos Fundamentais, ed. José Adércio Leite Sampaio (Belo Horizonte: Del Rey, 2003), 163, translation mine). Marcelo Cattoni de Oliveira expresses similar point of view. See Marcelo Andrade Cattoni de Oliveira, Direito Processual Constitucional (Belo Horizonte: Mandamentos, 2001), 212 ff.
48.
Paulo Bonavides, Curso de Direito Constitucional (São Paulo: Malheiros, 1994), 278, translation mine.
49.
The year of 1993 also points out the STF’s more intervenient attitude towards the other powers. Marcus Faro de Castro stresses an event referring to a provisional order issued by Justice Marco Aurélio de Mello, after an action filed by the left wing parties, which ordered the immediate suspension of the legislative works concerning the process of constitutional reform. Although the other Justices revoked afterwards this provisional order, this attitude already reaffirmed its authority and had, accordingly, “sent a message across to politicians that the Court was a political power not to be underrated” (Castro, “The Courts, Law and Democracy in Brazil,” 248). This development of a more intervenient attitude towards the other powers was then reestablished, with more frequency, in other relevant opportunities, many of them also in the economic area, such as the exclusion through a STF’s decision of the salary raise ordered by the President Itamar Franco to the employees of public companies; the judgment related to the ex-President Fernando Collor de Mello’s impeachment; the decision invalidating the governmental Provisional Measure (Medida Provisória) that prohibited indexation of the contracts after the creation of the Plano Real, which provided a general stabilization of the Brazilian currency and attacked the inflation; the decision provisionally suspending the legislative activity, which discussed the reform of the Social Security System, among others. For this purpose, see Ibid., 247 ff.
50.
See Cruz, “Habermas, Ação Estratégica e Controle de Constitucionalidade,” 237.
51.
See Ibid., 237.
52.
According to Streck, Cattoni de Oliveira and Lima: “The ADI was the way the original framer had found to also involve the organized civil society in the protection of the Constitution. We can prove the objectivity of this assertion by reading the roll of actively legitimate actors to file the ADI: we can find in art. 103 of the Constitution of the Republic both representatives of the state and the society. Accordingly, we can remark the democratic-participative keynote of the Constitution, for the very Constitution does not embrace the society without its connections with the state and vice-versa” (Streck, Cattoni de Oliveira and Lima, A Nova Perspectiva do Supremo Tribunal sobre o Controle Difuso: Mutação Constittucional e Limites da Legitimidade da Jurisdição Constitucional, 6, translation mine).
53.
Indeed, if we could correctly say that the Constitution of 1988, in its original text, introduced the possibility of the abstract judicial review by means of a lawsuit (Direct Unconstitutional Suit – ADI) able to be filed by different authorities and sectors of civil society (art. 103 of the Constitution of 1988) – and this could represent an expansion of democratic participation in the realm of constitutional adjudication – the constitutional amendment n. 3/93, which introduced the Declaratory Action of Constitutionality (ADC), established, however, that solely the President of the Republic, the Directing Board of the Federal Senate, the Directing Board of the Chamber of Deputies, and the General-Attorney of the Republic could file it. The other authorities and institutions of civil society – as the Federal Council of the Brazilian Bar Association and the confederations of labor unions or professional associations of a nationwide nature, for instance – were then excluded. This situation only changed after the constitutional amendment n. 45 in 2004, which identified the competent authorities and institutions of civil society of the ADC with those of the ADI (art. 103 of the Constitution of 1988, with the text of the amendment n. 45/2004).
54.
It is interesting to remark that, in many consolidated systems of judicial review as in Germany (see, for this purpose, BVerfGE 40, 88 (93ff)), Portugal and Spain, the declaration of constitutionality does not cause the binding effect, thereby not preventing someone from filing an action questioning the constitutionality of a legal norm before declared constitutional. There are many reasons for this understanding: (1) the declaration of constitutionality would make the open and variable contents of the constitutional principles static and rigid, causing therefore an impediment to its evolutive constitutional interpretation; (2) this declaration would confer on the constitutional court an uncontrollable power to infallibly decide on the constitutionality of a legal norm, turning then into an irresponsible arbiter of the constitution and an owner, instead of a serve, of the constitution; (3) a wrong decision in this matter could have the same value of a constitutional norm that was used as a parameter and could only be corrected by means of a constitutional amendment. For this purpose, see Streck, Cattoni de Oliveira and Lima, A Nova Perspectiva do Supremo Tribunal sobre o Controle Difuso: Mutação Constittucional e Limites da Legitimidade da Jurisdição Constitucional, 14–15.
55.
According to Álvaro Ricardo de Souza Cruz, “it is curious to remark that, once more, the institute of judicial review, born to safeguard the basic rights and the supremacy of the Constitution, comes out within a context of arbitrariness to respond to the fiscal interests of the federal government” (Cruz, “Habermas, Ação Estratégica e Controle de Constitucionalidade,” 261, translation mine).
56.
The original text of art. 102, §2, of the Constitution of 1998 did not establish the binding effect for the Direct Unconstitutionality Suit. It was the constitutional amendment n. 45/2002 that instituted it. Its actual text is this one below: “Art. 102 (…)
§2 – Final decisions on judgments, pronounced by the Supreme Federal Court, in direct actions of unconstitutionality and in declaratory constitutionality suits, shall have force against all, as well as a binding effect, as regards the other bodies of the Judicial Power, as well as direct and indirect public administration, at federal, states and municipalities levels.”
57.
See note 461 supra.
58.
A very interesting example is the famous Apagão case (ADC 9 – DF) further examined.
59.
Vieira, Supremo Tribunal Federal: Jurisprudência Política, 136, translation mine.
60.
The Laws 9.882/90 (art. 6, §1) and 9.868/90 (art. 9, §1) introduced, in any case, an interesting mechanism in the abstract system of judicial review: the amicus curiae, that is, the Rapporteur Justice can solicit the presence of representatives of civil society and experts of a determined subject matter to manifest their opinion in a public audience.
61.
Art. 102, §1 of the Constitution of 1988.
62.
For instance, the judicial review of municipal legal statutes, pre-constitutional legal statutes still valid, and even an act practiced by the government that infringes a fundamental precept of the Constitution (in this case, the concept of fundamental precept has been created by case law).
63.
Art. 5, §3 of the Law n. 9.882/99.
64.
In these cases, the decision must be made by two-thirds of the STF’s Justices.
65.
Art. 11 of the Law n. 9.882/99.
66.
Art. 21 of the Law n. 9.868/99.
67.
Art. 27 of the Law n. 9.868/99.
68.
See the extensive analysis Gilmar Mendes carried out on the modulation of effects – which he clearly endorses (See Mendes, Jurisdição Constitucional, 271) – when he examined the German constitutional model. For this purpose, see Ibid., 196–321. It is interesting to remark that Mendes himself understands that the modulation of effects is a direct consequence of the political character of judicial review. According to him, the more political the decision is, the more it demands the modulation of effects. See Ibid., 197.
69.
See, for this purpose, ADI 2.240 (published on 08.03.2007); ADI 3.682 (published on 09.06.2007); ADI 1.351 (published on 06.29.2007).
70.
Imagine, for instance, the possibility of a determinate tax being considered unconstitutional, but the STF states that it will be ineffective only in two years, allowing thereby that the government continues to enforce this unconstitutional law on the citizens for more two years. For this purpose, the STF simply says that, if it decided otherwise, there could be a serious economic outcome for the whole society.
71.
See, for instance, the clear connection between the modulation of effects and the deployment of balancing according to the Brazilian constitutional scholarship. See, for this purpose, Daniel Sarmento, “Eficácia Temporal do Controle de Constitucionalidade: O Princípio da Proporcionalidade e a Ponderação de Interesses das Leis,” Revista do Direito Administrativo (Renovar), no. 212 (April-June 1998): 27–40.
72.
Cristiano Paixão and Paulo Henrique Blair Oliveira, “O Julgamento das Células-Tronco: Ponderação contra a Constituição,” Constituição e Democracia, June 2008: 17, translation mine.
73.
The constitutional amendment n. 45/2004, in any case, introduced some interesting mechanisms, such as the expansion of the legitimate actors to file the Declaratory Action of Constitutionality (ADC), thereby identifying them with those of the Direct Unconstitutionality Suit (ADI) (art. 103 of the Constitution of 1988), and the institution of the National Council of Justice. This organ, composed of representatives of the judiciary, public prosecutors, Brazilian Bar Association and civil society, is responsible for supervising the judiciary’s administrative and financial activities (art. 103-B of the Constitution of 1988).
74.
The binding precedent can be created after the approval of two-thirds of the members of the STF, that is, eight judges (art. 103-A, caput, of the Constitution of 1988).
75.
See, for instance, Justice Gilmar Mendes’s justification: “This instrument [the binding precendent] plays an obvious role in stabilizing expectations and in reducing the overload of cases in the judiciary in general and particularly in the Federal Supreme Court” (Gilmar Mendes, Judicial Reform as a Fundamental Element to Ensure Legal Security to Foreign Investments in Brazil, New York (US) Lecture presented at the Council of Americas, http://www.stf.jus.br/arquivo/cms/noticiaArtigoDiscurso/anexo/Reforma_do_Sistema_Judiciario_no_Brasil_v_Ing.pdf (accessed July 14, 2009), 5).
76.
Two interesting examples occurred when the STF, by using the institute of the binding precedent, limited the nepotism in the three powers and restricted the use of handcuffs by the police when arresting a suspect of a crime (Binding Precedent n. 13 and 11, respectively).
77.
According to Gilmar Mendes: “As it contributes to a drastic reduction in the number of cases that reach the Court, as well as to limiting the subject of decisions to constitutional questions of an objective nature, the new requirement of general repercussion for extraordinary appeals opens up promising prospects for constitutional jurisdiction in Brazil, especially as to the Federal Supreme Court assuming the typical role of a truly constitutional court” (Mendes, Judicial Reform as a Fundamental Element to Ensure Legal Security to Foreign Investment in Brazil, 8).
78.
Art. 102, §3, of the Constitution of 1988.
79.
See art. 543-A, §1, of the Brazilian Civil Procedural Code.
80.
The STF can only dismiss the constitutional appeal (Recurso Extraordinário), in any case, after the decision taken by two-thirds of its members, that is, eight judges (art. 102, §3, of the Constitution of 1988). This decision will serve as a parameter for the future ones with identical matter, which can be dismissed a limine (art. 543-A, §5, of the Brazilian Civil Procedural Code).
81.
In the American model, nonetheless, the stare decisis derives from a longstanding tradition and not from any law or written rule. Besides, it is intimately connected to the common law system, which has as its focal point the case and its particularities. In Brazil, on the other hand, the binding precedent is a consequence of a legal determination, which has no connection whatsoever with the tradition of the Brazilian legal system (grounded in the roman-germanic model), and, instead of focusing on cases, it leads to the framing of general theses binding the different branches of the judiciary and the government. The American stare decisis is, therefore, contextually bound; the Brazilian binding precedent is, in turn, decontextualized. This fundamental difference, however, might have not been observed by some who defend its implementation, such as STF’s Justice Gilmar Mendes, according to whom the binding precedent is similar “to what occurs in Anglo-American law.”
82.
For this reason, Justice Mendes’s words saying that, contrary to the objective cases, “the binding precedent is derived from decisions that were in principle made when dealing with concrete cases, under the incidental model” (Mendes, “Controlling Constitutionality in Brazil,” 13) are not wrong, but he failed to verify that, as soon as it is created, the binding precedent becomes an abstract and objective thesis without any effective control of other powers (always the last word is STF’s) and without the possibility of directly questioning of its contents by a common citizen.
83.
Lênio Luiz Streck, O Fahrenheit Sumular no Brasil: o Controle Panóptico da Justiça, http://leniostreck.com.br/index2.php?option=com_docman&task=doc_view&gid=17&Itemid=40 (accessed July 14, 2009), 4, translation mine.
84.
See Vieira, Supremo Tribunal Federal: Jurisprudência Política, 224–225.
85.
Indeed, to modify or revoke a binding precedent, unless the STF does not implement it, it is necessary three-fifths of the congressmen’s votes, in both the Senate and the Deputy Chamber, in two rounds. Another possibility is a Direct Unconstitutionality Suit (ADI) filed by the authorities of art. 103 of the Constitution.
86.
According to Streck, Cattoni de Oliveira and Lima: “By intending to accept complaints against its thesis and not against the decisions from cases (remark that we are dealing with the diffuse judicial review, whose ratio is the examination of concrete cases and prejudicial questions), the Supremo Tribunal Federal diverts the legal discussion to the discourses of justification (Begründungsdiskurs), elaborated in a decontextualized way. They become “concepts without things.” And this is metaphysics, if we use a language relevant to philosophical hermeneutics.” (Streck, Cattoni de Oliveira and Lima, A Nova Perspectiva do Supremo Tribunal sobre o Controle Difuso: Mutação Constittucional e Limites da Legitimidade da Jurisdição Constitucional, 22, 26, translation mine.)
87.
Moreover, with this understanding, as already the STF clearly exposed (See RCL 4335-5 – Justice Eros Grau’s opinion), it put at risk the institute of the Senate’s participation in the suspension of the legal execution deemed unconstitutional by a STF’s definitive decision (art. 52, X, of the Constitution of 1988), an interesting mechanism existing since 1934 that aims to bring to judicial review the representatives of the population. The elaboration of a binding precedent in the diffuse system of judicial review, nevertheless, creates a general rule – it refers to a thesis, not an immediate case, after all – without the involvement of any political organ more directly connected to the citizens. Insofar as the STF can declare the erga omnes and binding effect in its decisions, now in the realm of the diffuse system of judicial review, the Federal Senate, within this context, becomes merely responsible for the publicity of that court’s decisions (See, for this purpose, Mendes, “O papel do Senado Federal no Controle de Constitucionalidade: um Caso Clássico de Mutação Constitucional”).
88.
Furthermore, with the introduction of the binding precedent as a general thesis, the diffuse system of judicial review shifted progressively to the idea that it could no longer have, as its ratio, the case and its features, but rather the simple judgment of a thesis, capable of being enforced, in the hypothesis of the lower courts’ or the government’s disobedience, through a direct complaint (Reclamação) filed in the STF. With this instrument, this court can then straightaway revoke the administrative act or annul the lower decision, determining thereby that the lower court makes another conclusion (Art. 103, §3, of the Constitution of 1988). This institute, nonetheless, seems to go in the opposite direction of the premise that, in the diffuse system of judicial review, as the Constitution clearly specifies (Art. 103, III, a, b, c, d of the Constitution of 1988), “the result of the Supremo Tribunal Federal’s activity (…) is never the judgment of a thesis, and this activity does not result in a theory, but a decision” (Streck, Cattoni de Oliveira e Lima, A Nova Perspectiva do Supremo Tribunal sobre o Controle Difuso: Mutação Constittucional e Limites da Legitimidade da Jurisdição Constitucional, 4). Yet, from that moment onwards, the STF could establish a certain interpretation of a legal statute and immediately impose it – as a general prospective thesis – on all other different procedures taken place in every branch of the judiciary and the government. It could even revoke an already-made decision, if still appealable, as well as modulate its effects (See RE 197.917, published on 05.07.2007; HC 82.959, published on 09.01.2006; MS 26.602, published on 10.17.2008), based on reasons of legal security or exceptional public interest. Ultimately, therefore, the binding precedent, in the way as such defined, radically altered the structure of the diffuse system of judicial review, its inner core, which could lead one to sustain that it subverted the constitutional principles of due process of law, ample defense and contradictory, as long as it immediately excluded the claim of those who did not participate in the very process of decision-making that affects them (See Streck, Cattoni de Oliveira e Lima, A Nova Perspectiva do Supremo Tribunal sobre o Controle Difuso: Mutação Constittucional e Limites da Legitimidade da Jurisdição Constitucional, 7).
89.
See the second chapter.
90.
Mendes, New Challenges of Constitutional Adjudication in the 21 ^st Century: a Brazilian Perspective, 2.
91.
Cattoni de Oliveira, “Jurisdição e Hermenêutica Constitucional no Estado Democrático de Direito: um Ensaio de Teoria da Interpretação Enquanto Teoria Discursiva da Argumentação Jurídica de Aplicação,” 385.
92.
See, for example, what the then Brazilian Minister of Justice, Tarso Genro, said about the binding precedents concerning the restriction on nepotism in the three powers and the use of handcuffs by the police: “if the STF reaches the realm of creation of norms, I would say a little without precedents here in the country, this means that there are legal vacuums that have to be filled. And the Supremo has been doing it” (Folha de S. Paulo, Interview by Lucas Ferraz, Brasil (August 28,. 2008), translation mine).
93.
See, for instance, the Federal Deputy Arnaldo Faria de Sá’s words (PTB-SP), which, although praising the contents of the decision, mentioned: “The STF did the homework in place of the Chamber of Deputies. Congratulations to the judges.” One can reach the same conclusion through the Federal Deputy Henrique Alves’s words (PMDB-RN): “This is a very important discussion and the Chamber of Deputies, with its own legs, should approve a constitutional amendment prohibiting this practice” (Folha de São Paulo, Brasil, (August 21, 2008), translation mine).
94.
Folha de São Paulo, Brasil, (August 26, 2008), translation mine.
95.
We can observe this circumstance either in the cases of binding precedents or in the Writ of Injunction, whereby the STF undertakes the responsibility to establish provisional regulations until the parliament or the government enacts the regulatory measure. See MI 670 and MI 708 (both published on 10.31.2008).
96.
According to Gilmar Mendes: “(…) the functionality of the Congress is affected, and therefore the Court is going to make decisions, albeit provisional ones”; “The model suggested is of cooperation, in which one tries to make the decision functional but, at the same time, expects that the legislature reacts.”
Besides, he even says that, in order to promote the legislature’s reaction, it would even be possible to discuss mechanisms such as the salary cut of the congressmen or even threaten them with a criminal lawsuit. (Folha de S. Paulo, Interview by Andreza Matais, Brasil, (September 13, 2008), translation mine).
97.
Mendes, New Challenges of Constitutional Adjudication in the 21 ^st Century: a Brazilian Perspective, 10.
98.
Schlink, “German Constitutional Culture in Transition,” 729.
99.
See Mendes, “O papel do Senado Federal no Controle de Constitucionalidade: um Caso Clássico de Mutação Constitucional,” 155.
100.
See Cruz, “Habermas, Ação Estratégica e Controle de Constitucionalidade,” 266.
101.
See Cattoni de Oliveira, “Jurisdição Constitucional e Hermenêutica,” 399.
102.
See the second chapter.
103.
See, for this purpose, Silva’s analysis of the usual confusions the Brazilian scholarship makes in the investigation of the principle of proportionality in: Luís Virgílio Afonso da Silva, “O Proporcional e o Razoável,” Revista dos Tribunais, no. 798 (April 1992): 23–50.
104.
See, for this purpose, Suzana de Toledo Barros, O Princípio da Proporcionalidade e o Controle de Constitucionalidade das Leis Restritivas de Direitos Fundamentais, (Brasília: Brasília Jurídica, 2003); Helenilson Cunha Pontes, O Princípio da Proporcionalidade e o Direito Tributário (São Paulo: Dialética, 2000); Wilson Antônio Steinmetz, Colisão de Direitos Fundamentais e Princípio da Proporcionalidade (Porto Alegre: Livraria do Advogado, 2001); Paulo Arminio Tavares Buechele, O Princípio da Proporcionalidade e a Interpretação da Constituição (Rio de Janeiro: Renovar, 1999); Luis Roberto Barroso, Interpretação e Aplicação da Constituição: Fundamentos de uma Dogmática Constitucional Transformadora (São Paulo: Saraiva, 1998); Humberto Ávila, Teoria dos Princípios: da Definição à Aplicação dos Princípios Jurídicos (São Paulo: Malheiros, 2008); Alexandre Araújo Costa, O Princípio da Proporcionalidade na Jurisprudência do STF (Brasília: Thesaurus, 2008); Raquel Denise Stumm, Princípio da Proporcionalidade no Direito Constitucional Brasileiro (Porto Alegre: Livraria do Advogado, 1995); Luís Virgílio Afonso da Silva. “O Proporcional e o Razoável”; Luís Virgílio Afonso da Silva, Interpretação Constitucional (São Paulo: Malheiros, 2005).
105.
See, for instance, Gilmar Mendes, “O Princípio da Proporcionalidade na Jurisprudência do Supremo Tribunal Federal,” in Revista Diálogo Jurídico I, no. 5 (2001); Suzana de Toledo Barros, O Princípio da Proporcionalidade e o Controle de Constitucionalidade das Leis Restritivas de Direitos Fundamentais (Brasília: Brasília Jurídica, 2003); Luis Roberto Barroso, “Os Princípios da Razoabilidade e da Proporcionalidade no Direito Constitucional,” Revista dos Tribunais – Cadernos de Direito Constitucional e Ciência Pollítica 23 (1998): 65-79; Alexandre Araújo Costa, O Princípio da Proporcionalidade na Jurisprudência do STF.
106.
Silva, “O Proporcional e o Razoável,” 30.
107.
See, for instance, Humberto Ávila, Teoria dos Princípios: da Definição à Aplicação dos Princípios Jurídicos (São Paulo: Malheiros, 2008), 151–179.
108.
According to Luís Virgílio Afonso da Silva: “The rule of proportionality in the control over restrictive laws to basic rights arose from the German Constitutional Court’s practice and is not a simple agenda that vaguely suggests that the state acts must be reasonable, nor a simple analysis of the relationship means-goal. In the way the German constitutional practice developed it, it has a rationally defined structure, with independent sub-elements – the analysis of suitability, necessity and proportionality in the narrow sense – which are deployed in a predefined order, and which confer on the rule of proportionality a singularity that differentiates it clearly from the mere exigency of reasonability (Silva, “O Proporcional e o Razoável,” 30, translation mine)”.
109.
Gilmar Mendes, interview by Izabela Torres, “Entrevista – Gilmar Mendes,” Correio Braziliense, Brasília (August 17, 2008).
110.
Some interesting examples: RE n. 18.331 (published on 11.08.1951); RE 16.912 (published on 06.28.1968); HC 45.232 (published on 06.17.1968); RP 930 (published on 08.02.1977); RP 1.054 (published on 06.29.1984).
111.
During the period of the military regime, the manifestations concerning the deployment of the principle of reasonability and balancing were very diluted by the formalist character of constitutional interpretation that prevailed in those years, and, when they appeared, they were still marked by an unsystematic approach that could, indeed, denature the characteristics of the idea of reasonability. Apart from some very rare manifestations (see note 488 supra), the STF, even after receiving the authorization to evaluate the constitutionality of federal legal statutes in the abstract system of judicial review, would not undertake a more activist approach. The military dictatorship could not live with the idea of having a constitutional court with sufficient powers to invalidate legal statues, many of them directly originated from the military government. Therefore, the STF, by normally using formal arguments, behaved with a certain complacency and even supported some government’s arbitrary practices. The development of a value-based account of constitutional principles to be balanced with other values emerging from the economic, social and political order was, even though presented in some court’s opinions (many of them coming from the minority of its Justices), a premise that contrasted substantially with the prevalent judiciary’s and scholars’ legal thinking. It is from this period the idea that the judiciary could not control the merits of the administrative act, and above all, the legislative ones, a principle that, if existing in different legal realities, achieved an expressive passive character towards many of the illegalities and arbitrariness the dictatorship yielded, leaving then the common citizen, in many cases, without any legal protection. When the STF attempted to react against this situation, the military regime created barriers that strongly intimidated its activities. It was necessary thus that this court thought and acted in accordance with the military regime, and nothing better for this purpose than establishing a strict and formal comprehension of the principle of separation of powers and, as Alexandre Araújo Costa mentions, “an almost mythical respect to the so-called administrative merit and the legislative discretion, ideas well aligned with an authoritarian regime where the governmental axiological choices could not even be contested by the society, and much less annulled by the judiciary” (Costa, O Princípio da Proporcionalidade na Jurisprudência do STF, 93–94, translation mine).
112.
Reasonability (or proportionality) is normally, in these cases, used to express the idea of an existing common sense of a determined matter. See, for this purpose, RE 192.568 (published on 09.13.1996), REED 199.066 (published on 08.011997), ADIN 1.326 (published on 09.26.2007); AGRAG 203.186 (published on 06.12.1998); ADI-MC 2273 (published on 05.25.2003); ADI 2019 (published on 06.21.2002); RE 453.740-1 (published on 02.28.2007); RE 197.917 (published on 05.05.2004).
113.
In this case, the idea of reasonability or proportionality (some already with the triadic structure of the German doctrine) is instrumentally introduced as a criterion of validity to evaluate discriminatory treatments, as though the discrimination established by the legal statute or the administrative act not only violates the equality principle but is also unreasonable to achieve a certain goal. See, for instance, ADIn 1.326 (published on 09.26.1997); AGRRE 205.535 (published on 08.14.1998); RE 184.635 (published on 05.04.2001); RE 176.479 (published on 09.05.1997); ADInMC 1.753 (published on 06.12.1998); ADI-MC 2317 (published on 03.23.2001); ADI 3522 (published on 05.12.2006); RE 140.889 (published on 12.15.2000); RE 150.455 (published on 05.05.1999); ADI 1.040 (published on 04.01.2005); ADI 1.351 (08.05.2005).
114.
In the following years, the STF’s decisions began to provide a better shape to the principle of reasonability and present it explicitly as a central argument. In 1993, the STF introduced the so-called principle of proportionality, still mixed up, however, with many other arguments, as a justification to provisionally suspend a law (Law n. 10.248/93 of the state of Paraná) that determined that all gas (LPG) cylinders had to be weighted before being sold in favor of the consumer (ADI-MC 855-2, published on 10.01.1993). Based on a neutral technical report saying that this measure would be ineffective and would not provide any real benefit to the consumer, the STF deployed the principle of proportionality – specifically here suitability and necessity, even though these elements were not explicitly discussed – in order to suspend the law by virtue of its non-suitability to achieve the goal and the existence of other means less harmful to the consumer’s rights. In the same year, the STF judged the reasonability of the Complementary Law n. 75/93, which required the lapse of two years after the graduation as a legal bachelor to participate in public contests created to select public prosecutors, deciding in favor of the reasonability of the measure. Other cases that also deployed, in a certain sense, the idea of reasonability can be found in the AGRAG 153.493 (published on 02.25.1994), which stated that the constitutional model of monetary correction of public debts was not suitable; the ADIn n. 966 and ADIn n. 958 (published on 08.25.1995), which discussed the constitutionality of the Federal Law n. 8.713/93, responsible for restricting the possibility of minor political parties to indicate a candidate for President, whose decision had some opinions founded on the reasonability of the restriction (Justice Sepúlveda Pertence connected the concept of reasonability to that of moderation; Justice Moreira Alves connected it to the due process of law) as a principle to control legal norms restricting constitutional principles. See also ADInMC 1.158 (published on 05.26.1995), which discussed the constitutionality of a legal norm of the State of Amazonas that extended a benefit related to vacations to retired public officers; the HC 76.060 (published on 05.15.1998), in which Justice Sepúlveda Pertence proceeded to the analysis of proportionality as a means to decide that the father could not be compelled to make an investigation of paternity (DNA test), if there were already other sufficient evidences indicating who was the father; the ADI-MC 2667 (published on 03.12.2004), concerning the possibility of issuing a high school degree before finishing the last grade, in case of approval in the vestibular (Brazilian access exam to the University), when Justice Celso de Mello connected this principle to the abuse of the legislative function and to the substantive due process of law; the RE 319.556-5 (published on 03.12.2002), in which Justice Sepúlveda Pertence connected the principle of proportionality to the substantive due process of law in order to sustain the principle, in criminal law, of “minimal intervention.”
115.
See notes 551 and 552 supra.
116.
These cases demonstrate, therefore, that balancing appears in the most different contexts, and not only as a necessary third element of the principle of proportionality, normally deployed after the principles of suitability and necessity. The premise that a basic right can be restricted depending on how relevant the realization of another value is reveals a usual practice in the construction of political arguments by constitutional courts. The German scholarship’s methodological construction and the BVG’s practice attempt to provide a “rational” aura for decision that is, fundamentally, open to the relativization of a basic right with other value (economic, sociological, political). This is its greatest danger and the main reason to associate it with the constitutional court’s discretionary power.
117.
See ADInMC 223 (published on 06.29.1990).
118.
In this case, Justice Moreira Alves mentioned that, in order to evaluate the reasonability of the measure, the abstract system of judicial review was not adequate (See ADInMC 223, published on 06.29.1990).
119.
Ibid.
120.
See ADInMC 223 (published on 06.29.1990), translation mine.
121.
Ibid., translation mine.
122.
Published on 04.23.2004.
123.
It is interesting to verify that Luís Virgílio Afonso da Silva, one of Brazilian most notorious and expert scholars in the principle of proportionality, when examined specifically this case, concluded that a correct decision would point out the unconstitutionality of the Provisional Measure, because the restrictions it created were clearly unnecessary (there were alternatives less harmful to the citizen’s consumer rights, after all). See, for this purpose, Silva, “O Proporcional e o Razoável,” 39–41. This conclusion also demonstrates that balancing, as practiced in this case, not necessarily occurs after a systematical investigation of the suitability and necessity, even though the German doctrine (Alexy in particular) and Silva, in Brazil, mention that balancing is a procedure to carry out after the other two (suitability and necessity), given its subsidiary nature. Besides, as it will be shortly examined, it is not by reason of strictly deploying this methodology that the discretionary character of this principle disappears.
124.
ADC 9 (published on 04.23.2004). Judge Neri da Silveira’s opinion, translation mine.
125.
ADC 9 (published on 04.23.2004). Judge Ellen Gracie’s opinion, translation mine.
126.
ADC 9 (published on 04.23.2004). Judge Sydney Sanches’ opinion, translation mine.
127.
ADC 9 (published on 04.23.2004). Judge Maurício Corrêa’s opinion, translation mine.
128.
Art. 5, XXXII, of the Federal Constitution of 1988.
129.
The HC 71.373 (published on 11.22.1996), a habeas corpus, judged in 1994, referred to the obligation of a father to proceed to an investigation of paternity (DNA test). After the lower courts had determined that, in favor of the child’s right to know her genetic origin, the father had to submit himself to this test, the STF granted the writ to the father. After Justice Franciso Resek’s opinion, according to whom “the sacrifice imposed on the plaintiff’s physical integrity is ridiculous when confronted with the child’s interests as well as with the certainty the expert evidence can provide to the judge’s decision,” the court, in a very tight result oriented by Justice Marco Aurélio’s opinion, stated that the principle of human dignity was a fundamental principle that should prevail in this situation. The court did not use the word “balancing” in this case, but there was already, at least implicitly, the discussion of which principle was more relevant to the circumstances of the case: human dignity, intangibility of the human body and the principle of legality (there was no law compelling someone to be submitted to a DNA test in these cases, for instance), on the one hand, or the child’s interest in knowing her original ancestry, and the “ridiculous sacrifice imposed on the corporal inviolability,” on the other. It is, besides, important to notice that the discussion of the “minimal sacrifice” the father would suffer was a primary value for balancing (translation mine).
In 1998, in a similar case, HC 76.060 (published on 05.15.1998), the court was again encouraged to balance comparable constitutional principles. The difference, nonetheless, was that now the plaintiff, the registered father by reason of marriage, asked to revoke a lower courts’ decision, which compelled him to proceed to the investigation of paternity, even when there were already evidences of the child’s DNA tests, as well as his mother’s and the third-party’s who defined himself as the real father. In this case, Justice Sepúlveda Pertence, who was one of the dissenting opinions in the previous case, and clearly mentioning that this was a case of collision of principles leading to the evaluation of their weight, argued that it was against the principle of proportionality to compel someone when there are already enough evidences proving who was the father.
130.
Published on 06.06.2003.
131.
This case is particularly remarkable for it carries out an analysis of what the principle of proportionality is (indicating, for instance, how this debate occurs in Germany and Spain), a doctrinal differentiation between proportionality and reasonability (even though this difference was afterwards not clearly developed according to the features of the case), and an investigation of the evolution of this principle (reasonability and proportionality used as a synonym). See ADI 1.51107 (published on 06.06.2003).
132.
Art. 205 and 206, VII of the Constitution of 1988.
133.
See Justice Ellen Gracie’s opinion. ADI 2.435 (published on 10.31.2003).
134.
See Justice Marco Aurélio’s opinion. ADI 2.435 (published on 10.31.2003).
135.
Published on 11.22.1996.
136.
Art. 5, XI, of the Federal Constitution of 1988.
137.
This case is very interesting, because it directly examined the principle of proportionality and the collision of legal principles and interests in play. Justice Sepúlveda Pertence argued that the principle of proportionality can be used as a means to relativize the principle of inviolability of domicile, by balancing it with the general interests in the efficacy of criminal repression. The result, nonetheless, which seemed to consider the evidence illegal, because there was no previous judicial authorization for that, was in the other direction. Justice Sepúlveda Pertence, who expressed the court’s opinion, understood that, insofar as there was no evidence of plaintiff’s opposition to the government agents in the case, the collected evidence was therefore valid for all effects (See HC 71.373, published on 11.22.1996).
138.
Published on 12.19.2001.
139.
Art. 5, LVI, of the Federal Constitution of 1988.
140.
This was one of the most interesting analyses of the risk of balancing to the constitutional principles and guarantees. According to Justice Celso de Mello, based on some relevant views of Brazilian scholars, in the case of evidence collected through illegal means, it is a serious risk to admit them with support of the principle of proportionality. See, for this purpose, Justice Celso de Mello’s opinion in the HC 80948 (published on 12.19.2001).
141.
Published on 12.14.2001.
142.
Justice Sepúlveda Pertence even says that the STF is the Guardian of the Constitution and not the Guardian of the prisons, as if it were its duty to relativize the guarantee of the inadmissibility of illegal evidences in favor of the real truth of the criminal prosecution. See this interesting analysis in Justice Sepúlveda Pertence’s opinion in the HC 80949 (published on 12.14.2001). See also HC 87927 (published on 06.23.2006); HC 90232 (published on 03.02.2007).
143.
See the previous chapter.
144.
See the previous chapter.
145.
See the first and second chapters.
146.
This influence, nonetheless, is complicated to be verified. Different Justices have different forms of justifying the principle of proportionality, some still recalling the debates on American substantive due process of law, and others connecting it more directly to the German constitutional scholarship, or mixing up both views. In any approach, however, it is possible to observe that the idea of proportionality, and balancing in particular, became more and more frequent. From cases where the idea of balancing was not explicitly mentioned, but obviously inferred, to cases where terms such as “weight,” “proportionality” and the triadic structure appeared, what is relevant to observe is that the principle of proportionality, and especially balancing, accompanied progressively the STF’s decisions and has become a fundamental criterion for constitutional adjudication.
147.
A transitory example of this tendency was the judgment of the Direct Unconstitutionality Suit, ADI-MC 2.213 (published on 04.23.2004), in 2002, which exposed, despite the decision declaring the constitutionality of the legal statute, one of the most extensive analysis of the possibility of judicial review of the motives – relevance and urgency (art. 62 of the Constitution of 1988) – for the enactment of Provisional Measures (Medidas Provisórias). This case refers to the Provisional Measure n. 2.027-38/2000 (later 2.183-56/2001), responsible for the introduction of some serious restrictions on the program of land reform, especially motivated by some invasions of rural properties by organized civil movements. The STF carried out the principle of proportionality, indirectly deploying the triadic structure – for it held the Advocate-General of the Union’s arguments grounded in this triadic framework – while, simultaneously, associating it with the premise of reasonability and substantive due process of law as a fundamental category for the limitation of excesses practiced by the government in this area.
148.
See the next chapter.
149.
See Gilmar Mendes, Die abstrakte Normenkontrolle vor dem Bundesverfassungsgericht und vor dem brasilianischen Supremo Tribunal Federal (Berlin: Duncker & Humblot, 1991). In Portuguese: Gilmar Mendes, Jurisdição Constitucional: Controle Abstrato de Normas no Brasil e na Alemanha (São Paulo: Saraiva, 2004).
150.
See, for instance, Justice Gilmar Mendes’s extensive analysis of the necessity of modulation of effects also in the diffuse system of judicial review (RE 197.917/SP – published on 05.07.2004).
151.
Published in 11.28.2003. See also IF 298 (published on 02.27.2004); IF 444 (published on 11.14.2003); IF 2194 (published on 06.20.2003); IF 1690 (published on 05.20.2003); IF 1466 (published on 06.20.2003); IF 470 (published on 06.20.2003); IF 237 (published on 05.20.2003); IF 139 (published on 05.23.2003); IF 449 (published on 08.29.2003); IF 2257(08.01.2003); IF 1952 (published on 08.01.2003); IF 1317 (published on 08.01.2003); IF 492 (published on 08.01.2003); IF 317 (published on 08.01.2003); IF 171 (published on 08.01.2003); IF 3578 (published on 08.22.2003); IF 3292 (published on 08.29.2003); IF 2973 (published on 08.29.2003); IF 3601 (published on 08.22.2003); IF 3046 (published on 08.22.2003); IF 2975 (published on 08.22.2003); IF 2909 (published on 08.22.2003); IF 2805 (published on 08.22.2003); IF 2737 (published on 08.22.2003); IF 2127 (published on 08.22.2003); IF 164 (published in 11.14.2003).
152.
See IF 2.915-5 (published on 11.28.2003). Justice Marco Aurélio’s opinion.
153.
Ibid., Justice Gilmar Mendes’s opinion, translation mine.
154.
The idea that constitutional rights have limits according to the interests of the overall society and other constitutional rights, bringing about conflicts in particular situations, is what is behind the concept of “limits of limits” (Schranke der Schranke). See, for this purpose, Bodo Pieroth and Bernhard Schlink, Grundrechte: Staatsrecht II (Heidelberg: C. F. Müller, 2006), 51ff.
155.
IF 2.915-5 (published on 11.28.2003). Justice Gilmar Mendes’s opinion, translation mine.
156.
See the next chapter.
157.
Ibid., Justice Gilmar Mendes’s opinion, translation mine.
158.
According to Justice Gilmar Mendes: “(…) The deployment of the principle of proportionality in cases such as the present one, in which there is the claim to the Federal Union’s activity in the realm of federal state’s autonomy, is admitted by the German law. For this purpose, Bruno Schmidt-Bleibtreu and Franz Klein remark, in commentary on art. 37 of the Basic Law, that “the means of federal execution (‘Bundeszwang’) are established by the Constitution, by the federal laws and by the principle of proportionality” (“Die Mittel des Bundeszwanges werden durch das Grundgesetz, die Bundesgesetze und das Prinzip der Verhältnismäßigkeit bestimmt,” Kommentar zum Grundgesetz, 9a. ed., Luchterhand, 795). (Ibid., Justice Gilmar Mendes’s opinion, translation mine).”
159.
Art. 100 of the Federal Constitution of 1988.
160.
IF 2.915-5 (published on 11.28.2003). Justice Gilmar Mendes’s opinion, translation mine.
161.
Ibid., Justice Gilmar Mendes’s opinion, translation mine.
162.
It is interesting to verify that, in other opportunities, this court understood that the argument of the “reserve of the financially possible” could not be used against a constitutional norm, demonstrating thereby how this concept is extremely malleable according to the judge’s discretionary viewpoint. See, for instance, the case in which it was discussed an appeal against a lower decision that determined the ample and unrestricted access of all children up to six years old to crèches in the city of Santo André. The STF, in this case, clearly stated that the argument of the “financially possible” – except when there are motives objectively assessed (not presenting, though, any explanation of which motives they were) – could not be used as a justification for not observing the duty established by the Constitution (See RE-AgR 410.715. published on 02.03.2006).
163.
IF 2.915-5. (published on 11.28.2003). Justice Gilmar Mendes’s opinion, translation mine.
164.
See the next chapter.
165.
After this case, many other interesting debates took place in the STF that led to the deployment of the principle of proportionality with the triadic dogmatic structure. A very well known example is the HC 82.424 (published on 03.19.2004), the Ellwanger case previously examined (see the first chapter), judged in 2003, where this constitutional court balanced the freedom of speech, on the one hand, with the principle of human dignity and equality, on the other, with distinct and irreconcilable approaches by each of its Justices, particularly Gilmar Mendes and Marco Aurélio, the former by centering more on the constitutional principles in play, and the latter by using balancing to insert a naturalistic justification tied to a semantic approach. Another example was the ADI 3.324 (published on 08.05.2005), judged in 2004, which discussed the possibility of transference of civil or military public officers and his or her dependents from private to public universities, according to the Law n. 9536/97. In this case, Justice Gilmar Mendes, founded upon the equality principle – using, for this end, Alexy’s Theory of Constitutional Rights – sustained that this privilege had no “sufficient reasons” (translation mine) for the discrimination. Afterwards, he proceeded to the deployment of balancing, in which the equality principle, the university autonomy and the economic argument of Brazilian public universities’ budgetary limits were introduced after a theoretical analysis of the “thinking of the possible” (translation mine). For this purpose, Justice Gilmar Mendes entered into the debate with authors such as Gustavo Zagrebelsky and Peter Häberle, providing thereby the basis for the premise of the “legal thinking of the possible,” as well as bringing out the arguments to conclude that the obligatory transferences have limits on the public universities’ budgets.
Moreover, in what refers to the possibility of modulation of effects, balancing became a very powerful instrument, even to justify it in the diffuse system of judicial review, whose possibility was not legally defined. We can cite two relevant cases in this matter:
(1) The HC 82.959 (published on 09.01.2006), in criminal law. In this case, the principle of proportionality with this framework appeared, – as a dissenting opinion, though – in Justice Gilmar Mendes’s extensive opinion. He contradicted the then prevailing precedent, which stated that, according to the Law n. 8.072/90, in case of heinous crimes, there was no possibility of progression of the regime of the punishment, and therefore the criminal would remain in prison during the whole period of the conviction. The main argument was that this law, by abstractly establishing the impossibility of this progression, violated the constitutional principle of individualization of punishment. For this purpose, he presented initially the doctrine of the “essential core of fundamental rights,” its divergences (absolute and relative theory), based, above all, on German scholarship and practice, and then began to develop the connection between the idea of “essential core of fundamental rights” and the principle of proportionality. With these premises in mind, he sustained that this legal norm offended the “essential core of the principle of individualization of punishment.” Through the examination of other legal statutes, he concluded that the prohibition of progression of regime was neither suitable nor necessary, for there were other mechanisms equally effective and less harmful to the rights of the criminal. However, if we could consider this decision a right one, at the end, Justice Gilmar Mendes proceeded to the modulation of its effects, according to balancing, extending through decision-making thereby a possibility that existed only in the abstract system of judicial review. Founded upon this presumption, he declared the unconstitutionality of some articles of the law n. 8072/90 but defended the effect ex nunc of the decision, for it could cause serious repercussions for the civil, procedural and criminal area. Balancing appeared within the context of placing a value – the serious repercussions for the civil, procedural and criminal area – to be weighted in favor of a practice (the modulation of effects in the diffuse system of judicial review) that was neither historically nor even legally authorized. See also HC 85692/RJ (published on 09.02.2005); HC 85687/RS (published on 08.05.2005).
(2) The ADI 2240 (published on 08.03.2007). This case referred to the analysis of the constitutionality of the Law n. 7.619/2000 of the state of Bahia, which created the municipality of Luís Eduardo Magalhães in a municipal electoral year. After Justice Eros Grau’s opinion, which declared the constitutionality of that legal norm and thus the dismissal of the action, Justice Gilmar Mendes affirmed that this was a situation that required the observation of principles as optimization requirements, leading inevitably to the technique of balancing. In the circumstances, there was the principle of legal security, for the municipality had been already factually established for more than six years, and the principle of nullity of unconstitutional laws. Within this context, Justice Mendes initiated a serious analysis of why this last principle could be mitigated in Brazilian constitutional reality. Considering comparative law and examples, even from the United States (Linkletter v. Walker (381 U.S. 618), judged in 1965), he demonstrated that, on account of practical reasons, one could shape this principle according to the particular circumstances, founded on legal security, equity or exceptional public interest. This was why, in complex state of affairs, the STF would have to deploy balancing between the legal security, the exceptional social interest, on the one hand, and the principle of nullity of unconstitutional laws, on the other. For this reason, Justice Mendes argued that the law that created the municipality of Luiz Eduardo Magalhães was unconstitutional, but not void, establishing in the sequence a period of twenty four months for the state legislator to appreciate again this matter. He used then balancing to reduce the normative force of the constitutional principle of nullity of unconstitutional laws. Justice Sepúlveda Pertence, although afterwards having agreed with the balanced solution, on the other hand, did not see this shift as a normal one (and also Justice Marco Aurélio), expressing, in this regard, his serious apprehension about what was occurring at the court in this shift to the modulation of effects of the declaration of unconstitutionality. His words: “I am not able yet, with all the excuses to the Washington Court – case Linkletter and others – to remain calm and pose, in this very difficult living of the diffuse and the direct judicial review, more this problem of temporal modulation of the effects of the declaration in theory of the unconstitutionality of a law. Particularly, in a legal system as ours, where the guarantee of the vested rights, the perfect legal act and res judicata against the law is an expressed and intangible text of the Constitution (…) Now, legal acts are perfected and rights are vested by the non-incidence of an unconstitutional law. Therefore, where there are vested rights, I cannot really accompany the possibility of the court to project to the future the initial term of the unconstitutionality of a law” (translation mine).
166.
Published in 10.28.2007.
167.
Mitbestimmungsgesetz (BVerfGE 50, 290); Lagerung Chemischer Waffen (BVerfGE 77, 170); Mühlenstrukturgesetz (BVerfGE 39, 210), Cannabis (BVerfGE 90, 145), and Apothekenurteil (BVerfGE 7, 377).
168.
Ibid., translation mine.
169.
In this case, Justice Gilmar Mendes also makes reference to the discussion of the prohibition of excess (Übermassverbot) and the protection against deficient legal protection (Untermassverbot). See ADI 3.112 (published on 10.28.2007). Justice Gilmar Mendes’s opinion.
170.
For instance, he associated this problem with the debate on the prevalence of the principle of innocence (art. 5, LVII) and the constitutional norm that requires justification for every type of prison (art. 5, LXI).
171.
In any case, after his opinion, Justice Gilmar Mendes manifested the difficulty in verifying whether, in these circumstances, the legislator exceeded its legislative function. See ADI 3.112 (published on 10.28.2007). Justice Gilmar Mendes’s opinion.
172.
See ADI 3.112 (published on 10.28.2007).
173.
“Art. 5, LXVI – no one shall be taken to prison or held therein, when the law admits release on own recognizance, subject or not to bail.”
174.
“Art. 5, XLIII – the practice of torture, the illicit traffic of narcotics and related drugs, as well as terrorism, and crimes defined as heinous crimes shall be considered by law as non-bailable and not subject to grace or amnesty, and their principals, agents and those who omit themselves while being able to avoid such crimes shall be held liable.”
175.
Ibid., Justice Sepúlveda Pertence’s opinion, translation mine.
176.
Ibid., Justice Eros Grau’s opinion, translation mine.
177.
Published on 05.28.2008.
178.
ADI n. 3510 (published on 28.05.2008). Justice Marco Aurélio’s opinion, translation mine.
179.
Ibid., Justice Gilmar Mendes’s opinion, translation mine.
180.
Ibid., Justice Gilmar Mendes’s opinion, translation mine
181.
Ibid., Justice Gilmar Mendes’s opinion, translation mine.
182.
Ibid., Justice Gilmar Mendes’s opinion.
183.
Gilmar Mendes, interview by Izabela Torres, "Entrevista – Gilmar Mendes," Correio Braziliense, Brasília (August 17, 2008).
184.
ADI n. 3510 (published on 05.28.2008). Justice Gilmar Mendes’s opinion, translation mine.
185.
Ibid., Justice Gilmar Mendes’s opinion, translation mine.
186.
Justice Gilmar Mendes used the doctrine of Claus-Wilhelm Canaris to associate the idea of prohibition of excess with the prohibition of insufficient protection, deploying, in the sequence, the principle of proportionality.
187.
Justice Gilmar Mendes’s opinion resembles the BVG’s opinion in the second case of abortion (BVerfGE, 88, 203 – Schwangerschaftsabbruch II), in which that court pointed out that the temporal exception of twelve weeks to the general criminal rule could only occur if some requirements were previously filled, establishing besides the need of counseling with the purpose of fostering the continuity of pregnancy. With this case, therefore, it is possible to observe how influenced by the BVG the STF has progressively been, not only in the deployment of similar methodologies but also in this shift to a more active approach. See the second chapter.
188.
Ibid., Justice Gilmar Mendes’s opinion.
189.
Ibid., Justice Gilmar Mendes’s opinion.
190.
Justices Gilmar Mendes, Eros Grau, Ricardo Lewandowski, Menezes Direito and Cezar Peluso.
191.
According to Justice Menezes Direito, if the institutions responsible for the research, once having submitted their projects to the Ministry for Health, had their projected approved in violation of the presented recommendations, this would configure a crime according to art. 24 of the Law n. 11.105/2005. See Ibid., Justice Menezes Direito’s opinion.
192.
Schlink, “German Constitutional Culture in Transition,” 729.
193.
Menelick de Carvalho Netto, “A Contribuição do Direito Administrativo Enfocado da Ótica do Administrado para uma Reflexão acerca dos Fundamentos do Controle de Constitucionalidade das Leis no Brasil: Um Pequeno Exercício de Teoria da Constituição,” Forum, March 2001: 26, translation mine.

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Faculdade de Direito, University of Brasília, Campus Darcy Ribeiro, Asa Norte, Brasília - DF, Brazil, 70.919-970
Professor Juliano Zaiden Benvindo (Faculty of Law)

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Benvindo, J.Z. (2010). Balancing Within the Context of Brazilian Constitutionalism: The Supremo Tribunal Federal’s Shift to Activism. In: On the Limits of Constitutional Adjudication. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11434-2_3

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