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Minister Gilmar Mendes, of the Supreme Federal Court (STF), partially suspended this Wednesday (12/10) his own injunction which modified the impeachment law on points which concern the ministers of the Supreme Court.
The decision was taken after a request from the Senate, sent to the minister this Wednesday, asking him to suspend the decision at least until Congress passes a new impeachment law (PL 1388/2023), written by Senator Rodrigo Pacheco (PSD-MG), which has not worked since 2023.
Gilmar Mendes suspended two points of the initial decision, which exclusively assigned to the Attorney General’s Office (PGR) the competence to file complaints for crimes of responsibility against STF ministers.
The other articles modified by the injunction, referring to the quorum necessary to open the process and the reasons leading to it, remain in force.
In the decision, the minister highlights the progress in the Senate of the proposal to update the legislation that governs the process of dismissal of authorities, which incorporates elements of the injunction.
“Such legislative improvement is not limited to formally complying with the decisions of the Federal Supreme Court, but constitutes an act of high public conscience, aimed at preserving the integrity of the judiciary and protecting harmony between the powers,” declared the minister.
In the suspension request, the Senate had emphasized that its aim was not to contradict the power of the STF to comment on the matter, but to ensure that the prerogative of Congress to legislate on the impeachment procedure is respected and to guarantee legal certainty on the subject during the development of the new impeachment law.
In today’s decision, Mendes recalls that Davi Alcolumbre, during his first term as President of the Federal Senate (between 2019 and 2021), analyzed 36 impeachment requests presented against ministers of the Supreme Court.
On all these occasions, Alcolumbre, “demonstrating great civic spirit, acute institutional perception, prudence and remarkable civic courage, determined the abandonment of the initiatives, preserving, with firmness and responsibility, the stability of republican institutions and the independence of the judiciary,” Mendes said.
As a result, the trial of the injunction issued by the minister last week, which was to open in the virtual plenary of the STF next Friday (12/12) and which would confirm or not his decision, was removed from the agenda.
What Gilmar Mendes decided
Gilmar Mendes decided on December 3 to modify the impeachment law, in force since 1950, by suspending the articles relating to the dismissal of ministers of the Court.
In this decision, Mendes restricted the PGR’s prerogative to file impeachment requests against magistrates.
Another point modified by the minister’s decision is the quorum necessary for the opening, in the Senate, of a trial against the magistrates of the court: 2/3. Until then, the law provided for a simple majority, i.e. 21 senators.
Mendes also established that it was not possible to hold judges accountable or initiate impeachment proceedings based solely on the merits of their decisions.
The changes came in response to two lawsuits filed by the Solidariedade party and the Association of Brazilian Magistrates (AMB), of which Mendes is the rapporteur.
The same day as the decision, last Wednesday, the President of the Senate, Davi Alcolumbre (União Brasil – AP), opened the session in the Chamber by criticizing the measure.
According to him, the changes aim to “usurp the prerogatives of the legislative power”.
“I express that this presidency receives with great concern the content of the monocratic decision taken by Minister Gilmar Mendes,” declared the President of the House.
“Possible abuses in the use of this right cannot lead to the annulment of this legal mandate. Even less, I repeat, even less, by a judicial decision. Only a legislative modification would be able to review the purely legal concepts, under penalty of a serious constitutional violation of the separation of powers”, declared Alcolumbre.
Credit, Antonio Augusto/STF
“I did not see the same outcry when the Supreme Court changed the law for impeachment of the President of the Republic,” Ademar Borges, one of the lawyers who wrote the AMB opinion, told BBC News Brasil.
For him, both the quorum for the opening of a procedure in the Senate against the ministers of the Court, and the impossibility of opening a file on the basis of the decisions of a magistrate, are “almost indisputable”.
“If we imagine that the quorum was a simple majority, it is the smallest possible quorum, used for decisions of less relevance,” he says. “We cannot equate the opening of impeachment proceedings against Supreme Court ministers with ordinary decisions. It is unconstitutional.”
Borges, who is also a professor of constitutional law at the Brazilian Institute of Education, Development and Research (IDP), of which Gilmar Mendes is one of the partners, affirms that the quorum in the Senate must be the same to open trials against the presidents of the Republic.
Mendes’ decision in favor of the injunction last week comes at a time of escalating authoritarianism, as Borges says.
“The requests (for indictment of ministers of the Court) are not made due to ethical misconduct, corruption or acts of misconduct. For the first time, a President of the Republic has personally made a request for indictment against a minister of the Supreme Court. All on the basis of decisions taken in the regular exercise of his functions.”
However, he claims that he was not aware of the decision to limit the requests to the PGR only.
For criminal lawyer and professor at the Faculty of Law of the University of São Paulo (USP) Mauricio Dieter, Mendes’ decision last week is “controversial to say the least.”
“To say that the Constitution determines that impeachment procedures against ministers are exclusive to the PGR is, to a large extent, attributing hidden meanings to the Constitution and contrary to many principles of a democratic nature which structure it,” he said.
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