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The Judicialization of Pure Politics in Brazil

–Vanice Regina Lírio do Valle, Estácio de Sá University Law School

The Brazilian Constitutional Court gained visibility worldwide due to its recent ruling in the “mensalão” case – a trial involving a Congressional vote-buying scheme which ended in the conviction of many politicians associated with former President Lula, and also numerous congressmen still in the House. The repercussions of the trial led its reporting Minister – Joaquim Barbosa, now  President of the Court – to be appointed by Time Magazine as one of the 100 most influential people in the world.[1]

The Court’s activism has led to some tension between the Court and the legislature. A recent confrontation between the Court and Congress evidences that perhaps judicialization of pure politics has crossed a line, which isn’t sitting well with the legislature.

Next year Brazil will have Presidential elections, and the political goal for the Workers’ Party (PT) is to reelect President Dilma in the first round. The creation of new political parties to support two opposition candidacies – those of Marina Silva and Eduardo Campos –which present themselves as possible threats to that reelection target,[2] has led the Congress to consider a proposal to regulate campaign finance and media time for political advertisements, which it is believed may undermine the opposition candidacies.

While the legislative deliberation was ongoing, Senator Rodrigo Rollemberg from PSB (one of the parties that might be harmed by the legal proposition) directed a writ of mandamus (a Brazilian constitutional guarantee that seeks to address possible illegalities or abuse in public acts)  to the Constitutional Court, attempting to suspend the legislative procedure. The argument was that the deliberation was undertaken unusually quickly, that the proposal could be unduly threatening to minorities, and that it possiblly conflict with a previous Constitutional Court decision related to the same subject (campaign financing and time in television dedicated to electoral propaganda) with regard to a representative’s change of party affiliations during his term.  The writ of mandamus was examined by Justice Gilmar Mendes, who granted a provisional order suspending the legislative deliberation, agreeing with the arguments.

Congress then reacted, advancing proposed Constitutional Amendment nº 33, which would: 1) establish a higher quorum (4/5) for the Court to declare the unconstitutionality of a law[3]; 2) establish a legislative override clause, similar to the Canadian one, in instances when the Court declares the unconstitutionality of a constitutional amendment (the clause won’t apply to declaration of unconstitutionality of ordinary laws).

The sequence of events exemplifies exactly the judicialization of “pure politics” in the sense proposed by Ran Hirschl.[4] The sequence involved the Constitutional Court delivering an unprecedented ruling that provides a kind of preventive judicial review – that does not exist in the Brazilian system. The Congress’ reaction demonstrated the loss of the political sphere’s support as a necessary precondition for the judicialization of pure politics.

Action and reaction took place during the past week, and the juridical world is in true commotion; many “defending” the Judiciary, adopting an adversarial view in which the Congress represents the bad guys, and the Judiciary, the last bulwark of democracy and freedom. Nevertheless, as days go by, here and there you can find people pointing that in spite of the possible vices of the Constitutional Amendment nº 33, the conflict started with a Constitutional Court overstating its own competencies in the political game.[5]

Recently, Justice Gilmar Mendes, who delivered the controversial decision – has been visited by a group of congressmen trying to cool the situation; on the other hand the Congress has signaled that it may again examine the controversial proposal on campaign regulation. There is also some speculation in the press that Congress’ initial reaction to the Court decision – demanding that it be reviewed by the entire Constitutional Court – might yet produce a reversal.

If one were to compare the current events to a ballet performed by the political actors, one might say that we’re at the intermission. A second act is expected to begin next week, with the ruling of the Congresses’ appeal. The sole mystery in this plot is whether the corps de ballet will support the – until now – soloist.

 


[1]See “The 2012 Time 100”, http://time100.time.com/2013/04/18/time-100/slide/joaquim-barbosa/ (last visited May, 6, 2013).

[2] Marina Silva received almost 20 million votes in the last Brazilian presidential election (2010) placing her in third position among nine candidates.

[3] Today, the Constitutional Court can pronounce the unconstitutionality of a law by an absolute majority of votes among its 11 Justices.

[4] Hirschl, Ran, The New Constitutionalism and the Judicialization of Pure Politics Worldwide. Fordham Law Review, Vol. 75, No. 2, pp. 721-754, 2006. Available at SSRN: http://ssrn.com/abstract=951610.

[5] Some controversy has already emerged about the adequacy of the precedents quoted by the preliminary decision that in a certain point of view, do not endorse the possibility of such an intervention in the legislative procedure.

 

Suggested Citation:  Vanice Regina Lírio do Valle, The Judicialization of Pure Politics in Brazil, Int’l J. Const. L. Blog, May 7, 2013, available athttp://www.iconnectblog.com/2013/05/the-judicialization-of-pure-politics-in-brazil/

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Published on May 8, 2013
Author:          Filed under: Developments
 

4 Responses

  1. Joel Colon-Rios

    Hello Vanice, that was a really interesting post. I was wondering why is it that amendment 33 includes the adoption of a “legislative override clause, similar to the Canadian one, in instances when the Court declares the unconstitutionality of a constitutional amendment”. Is this exclusively a preemptive measure, or have there been recent past instances in which the court has declared constitutional amendments unconstitutional (I presume, in light of the eternity clause contained in the constitution)?

    One more question, does the proposed override clause involve a super-majority requirement?

    Thanks,

    Joel

    • Vanice

      Thanks for your comment, Joel. To your first question, the answer is yes; in Brazil, the Supreme Court has already examined constitutional amendments, and asserted its unconstitutionality; frequently due to violation of fundamental rights and guarantees, that are indeed protected by an intangibility clause contained in the Brazilian Constitution.
      The override clause stipulated by the proposed constitutional amendment nº 33 involves a 3/5 quorum for Congress deliberation– the same that is required in the Brazilian Constitution for the approval of a constitutional amendment itself.
      There is a logical breakage that should be pointed in the system proposed by amendment nº 33: in the future Congress should provide a supermajority of 3/5 to approve a constitutional amendment. The Constitutional Court in the other hand can only deliberate about the constitutionality of that future amendment by a 4/5 quorum (this is also a new clause prescribed by amendment nº 33). If the Court pronounces the unconstitutionality of the legislative deliberation, on a 4/5 quorum basis; it can be overruled by Congress, but again on a 3/5 majority. So, there is a double privilege that favors Congress: the overruling clause itself and a smaller majority required to deviate from the Constitutional Court’s ruling.

  2. Joel Colon-Rios

    Thanks Vanice. In terms of my first question, I should have been clearer: i was curious about whether the proposed override is a reaction to a particular recent decision or set of decisions about the constitutionality of amendments, or if it simply part of the attemp by Congress of limiting the review power of the courts.

    • Vanice

      There is no recent decision from the Court in reviewing constitutional amendments; so I don’t think we can point a relationship between constitutional review in amendments, and the current proposition.
      On the other hand, judicial review is largely applied to ordinary laws – in the Court’s site statistic reveals around 220/250 decisions per year in abstract procedures. So, it would be fair to affirm that judicial review is an important tool in the political game in Brazil, at least on the last decade – as long as the great majority of those lawsuits are presented by minority political parties. This may explain why Constitution Amendment Proposal nº 33 do not extend the override possibility to decisions that declare unconstitutionality of an ordinary law; resist and revert a political deliberation in the judicial ambience is still an important alternative to political minorities, and those minorities would not endorse such a broad proposition.

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