Minister Gilmar Méndez’s decision to suspend the rules relating to the dismissal of STF (Supreme Federal Court) ministers was the target of criticism from experts interviewed by the government. Bound Not only for its content and potential impact, but also for the way in which it was presented: in a unilateral and preliminary (temporary) decision – generally reserved for pressing issues.
Another point considered negative was that the matter was to be decided in the court’s virtual plenary session (in which votes were recorded only in writing), rather than in the actual plenary session, allowing for more discussion among ministers, as well as greater visibility of the voices and arguments mobilized by each of them.
Regarding the merits of the Gilmar Méndez decision, although there are differences between the salient points made by each expert, the general criticism is that the design identified there acts as a shield for the Ministers of the Supreme Court, creating a separation of powers imbalance. There are also those who point out inconsistencies in the premises used by the rapporteur.
Despite disagreeing with the form and content of the decision, these experts do not refute the legitimacy of the STF assessing whether the points in the impeachment law, including regarding the rules for the impeachment of its members, are inconsistent with the Constitution.
Gilmar Méndez’s unilateral decision came in the context of two actions questioning sections of the Accountability Act of 1950, referring to the dismissal of ministers from the STF – a flag that the Bolsonarianism mobilized against the court.
Both were filed in September, one by the Solidarity Party and the other by the AMB (Association of Brazilian Judges). The Minister determined the ruling on the subject of procedures in the virtual plenary session in a session scheduled to begin on the 12th and end on the 19th.
One of the aspects that aroused the most criticism of the decision was the restriction of the legality of filing an impeachment application against an STF Minister to the PGR (Public Prosecutor’s Office), which until then could be done by any citizen. This point, in addition to the approval of the requests on an already urgent basis, was only requested by the actions of the Solidarity Party, the party led by MP Paulinho da Forsa (SP), close to the STF ministers.
Lawyer and professor at the Faculty of Law of USP (University of São Paulo) Rafael Mafi says that although he considered it important to have an analysis of the rules for the removal of STF ministers in light of the 1988 Constitution, there was no basis for doing so through a precautionary measure.
He highlights that, beyond an accountability law dating back to 1950 that has been under the current constitution for 37 years, there would be no tangible risk to justify such urgency. “We do not appear to be in imminent danger of the arbitrary dismissal of a Soviet minister,” he says.
He also criticizes the design outlined by Gilmard: “Under the pretext of defending the Court from possible abuses, this design would in practice make the removal of STF ministers a practically unattainable reality, eliminating the only existing accountability mechanism of the Court.”
In his decision, Gilmard justifies that there is great urgency given the need to preserve the independence of the judiciary, which, according to him, will be seriously compromised, given that ministers will be subject to a system of accountability that is “partly inconsistent with the Constitution.”
Among other points, the Minister also decided that instead of a simple majority, a two-thirds vote of the Senate was now necessary to initiate the impeachment process. Additionally, he stopped automatic removal from his position after receiving the complaint.
Rubens Glazer, professor at FGV Direito SP, also estimates that there was no basis for urgency, and no uniform jurisprudence. “This is a highly controversial issue, with Minister Gilmar Mendes himself needing 70 pages to justify this change,” he points out.
He also says that a decision of this importance should not be taken unilaterally, nor in a virtual plenary session. “It’s not just a specific shield,” Glazer says. “It’s a deep flaw in the relationship of separation of powers.”
For the professor, Gilmard’s design creates a shield that “practically destroys control over the impeachment proceedings”, highlighting, for example, that removal from office at the opening of the process is no longer automatic, opening up the possibility of ministers using their seats to retaliate.
Miguel Gualano de Godoy, professor of constitutional law at the UFPR (Federal University of Paraná), also sees no basis for the initial decision. It is estimated that the decision, by restricting reporting to the PGR and seeking to protect the STF from misuse, also jeopardizes legitimate control.
“This choice short-circuits the democratic control of the STF, as this control now depends on a single institutional actor, the PGR, which has, historically, a closer relationship with the STF,” he says, criticizing the failure to schedule the process for analysis in the physical plenary session.
Ana Laura Pereira Barbosa, professor of law at ESPM (Ecole Supérieure de Advertising et Marketing), also sees no justification for a precautionary decision, and believes that the best course would have been to refer the case directly for analysis by the plenary session of the court.
Although she agrees with the premises of the decision, in the sense that it is important to take measures to protect constitutional courts, Ana Laura disagrees that these measures lead to the conclusion that the Constitution prohibits citizens from bringing motions for impeachment, for example, and sees more risks in concentrating this power in the PGR.
It also says that instead of protecting the Supreme Court, the decision could have the opposite effect, whether by intensifying the Legislature’s mood against the court or by fueling rhetoric that it is overstepping its bounds.