—Ranieri Lima Resende, PhD. in Law Candidate, Federal University of Rio de Janeiro (Brazil); Visiting Doctoral Researcher, New York University; José Ribas Vieira, Full Professor of Constitutional Law, Federal University of Rio de Janeiro (Brazil).*
The current national debate in Brazil about the recent imprisonment of the former President of the Republic, Luiz Inácio Lula da Silva, brings to light a collateral but important question focused on agenda-setting in the Brazilian Supreme Court.
After his conviction was confirmed by the Federal Court of Appeals based on charges of corruption and money laundering, former President Lula requested a preemptive Habeas Corpus before the Superior Court of Justice against the high risk of the provisional execution of the criminal sentence. The Superior Tribunal denied this remedy based on the Supreme Court’s precedent of 2016, which had allowed immediate imprisonments after the decision of the Court of Appeals, without waiting for the definitive end of criminal process. As a last shot, a second Habeas Corpus was directly presented to the Brazilian Supreme Court and recently rejected by a small majority (6 to 5).
Concomitantly with these facts, the current Brazilian Supreme Court’s President, Judge Cármen Lúcia, declined to submit to the plenary two erga omnes cases focused on the provisional execution of criminal sentences, despite explicit pressure from other Judges and the aggressive environment generated by political tensions. This action of the Court’s President were relevant because the analysis of these erga omnes cases by the plenary could have overruled the 2016 precedent, potentially changing the result of other judgments, including former President Lula’s.
This illustrates an old problem involving the discretionary power of the President of the Brazilian Supreme Court to set the institutional agenda of the plenary. A historical analysis of the relevant rules offers interesting perspectives on the “pre-decision” stage of judgments.
The Discretionary Agenda in Brazilian Courts: A General Institutional Design
Although each Judge Rapporteur of a case can decide when her opinion is “mature” for judging, after this preliminary phase, most cases must be submitted to the discretionary decision of the President regarding the appropriate time for collective decision-making. According to the Brazilian Supreme Court’s statistics, out of a total of 1,040 cases judged by the plenary, 1,016 cases have fallen under the president’s discretionary agenda-setting power, or about 98%.
The legal basis of the agenda-setting power held by the presidents of Brazilian courts is reflected in the 2015 Code of Civil Procedure, which establishes textually that “the process will be presented to the President, who will set a date for judgment, and order, in all possible cases hereby presented, that this date be published by the official gazette.” However, the Code does not express any criteria for the use of this power, which continues the tradition of the 1973 Code of Civil Procedure and is also very similar to what had originally been written in the 1939 Code.
In the same way, the current Internal Rules of all Superior Tribunals in Brazil reinforce the discretionary power of presidents to set their respective agendas, such as the Superior Court of Justice, the Superior Labor Court, and the Superior Military Court. An interesting exception can be found in the special procedures of the Superior Electoral Court, which applies a mandatory rule of automatic agenda setting by the secretariat for most of the cases under the Electoral Law, because of the specific dynamic of judgments connected to the electoral calendar.
Nevertheless, an analysis of the successive editions of the rules of the Brazilian Supreme Court demonstrates that the president’s discretionary agenda power has not always prevailed. There have been periods when an objective temporal criterion was in place as the strict guideline for establishing the order in which cases were judged, and also periods in which the collegiate body as a whole could participate in agenda-setting.
Rules of the Court (1909-2018): Comings and Goings
Although there were no regulation of this issue in the Rules of the Supreme Court of 1891, the Internal Rules of 1909 stated expressly that “judgments, for which these Rules do not define their proper moment, shall rigorously follow the temporal precedence order, according to their respective category”. Through “temporal precedence order”, the Rules of the Court have defined the sequence of cases for judgment by the collegiate body from the oldest to the newest, according to the moment when the processes were formally released for trial by the last Judge Reviewer and, after an Amendment of 1913, when they were originally received by the secretariat. There was also a clear legal warning that presidential power was limited to ensuring that judgments related to one category were not delayed in relation to others (e.g.: injunctions compared to civil appeals).
Along with specific cases where the temporal precedence order could be broken (e.g.: for insufficiency of quorum), the same Rules of 1909 mentioned the possibility of collective deliberation in extraordinary circumstances so as to mitigate the monolithic decision power of the Presidency. Thus, at this point the collegiate body retained an element of control of the potential arbitrariness in the definition of the Court’s agenda, and counterbalanced presidential power.
Decree-Law No. 6 of 1937, edited during the “Estado Novo” Dictatorship (1937-1945), brought about a radical change that altered the rule regarding the order of temporal precedence: “The judgment of processes shall follow, when possible and not a risk to the process, the order of temporal precedence”. We can observe in this clause a clear adoption of discretionary power in setting the judgment agenda, which made the order of temporal precedence a mere non-mandatory recommendation. It is important to mention that this Decree-Law also extinguished the Federal Judiciary and is considered one of the most interventionist measures from this period aimed at destroying the foundation of the Judicial Branch in Brazil, especially its independence.
However, the Rules of the Court of 1940, influenced by the new Civil Procedure Code of 1939, brought back the regulatory tradition of the mandatory nature of the rule regarding the order of temporal precedence. The Rules also included an explicit requirement that Habeas Corpus cases be judged in the same session as they were received by the Judge Rapporteur or, if that were impossible, in the next session immediately after it.
The perspective changed once more in the Rules of the Court of 1970, which consolidated again the flexibility of the temporal precedence rule through the conditional expression “whenever possible” Approved in 1980, the current Internal Rules maintain the same perspective and reinforce the wide discretionary power of the president to set the agenda of the Court.
Final Considerations and One Prospective Question
Based on this history, it is possible to conclude that the amount of presidential power and discretion over agenda-setting has varied radically in different periods:
– 1909-1937: mandatory temporal precedence order, with collegiate deliberation for defining exceptions (Strong Criterion & Shared Power = Very Low Discretion Model);
– 1937-1940: non-mandatory temporal precedence order, with collegiate deliberation for defining exceptions (Weak Criterion & Shared Power = Intermediate Discretion Model);
– 1940-1970: mandatory temporal precedence order, without any collegiate deliberation (Strong Criterion & Exclusive Power = Low Discretion Model);
– 1970-2018: non-mandatory temporal precedence order, without any collegiate deliberation (Weak Criterion & Exclusive Power = High Discretion Model).
Taking into consideration the current Brazilian Constitution of 1988, which can be identified with a broader context of democratization and promotion of the public participation of relevant decision-making actors, it seems contradictory that deliberations regarding the setting of the Supreme Court’s agenda remains so distant from objective criteria and so centralized in the hands of a single judge rather than vested in the entire body. The present model clashes with the principles of transparency and collegiality within the Court.
A key question thus emerges: Is it time to restore the old rule that allowed collegiate participation in agenda-setting, at least as a way to define exceptions to the president’s monopoly? This consideration is supported not only by the natural tendencies and risks inherent in a potentially despotic “best man”, but also by the synthesis of pluralist knowledge, experience and insight that a collegiate body is able to provide.
Suggested citation: Ranieri Lima Resende and José Ribas Vieira, The Agenda-Setting Crisis in the Brazilian Supreme Court, Int’l J. Const. L. Blog, Apr. 10, 2018, at: http://www.iconnectblog.com/2018/04/the-agenda-setting-crisis-in-the-brazilian-supreme-court/
* We thank Professors John Ferejohn and Jeremy Waldron for their inspiring “Democratic Theory Seminar” (NYU, Fall 2017), and Professors David Landau, Sergio Verdugo, Carlos Bolonha and Diego Werneck Arguelhes for their valuable suggestions and comments. The responsibility for any mistakes remains with the authors. E-mail: firstname.lastname@example.org
 See Mauricio Savarese & Jill Langlois, Still Popular, Brazil’s Lula Starts Serving Jail Sentence, Washington Post (8 Apr. 2018), available at https://www.washingtonpost.com/world/the_americas/brazils-da-silva-in-police-custody-after-tense-showdown/2018/04/07/71a84c00-3ac0-11e8-af3c-2123715f78df_story.html?utm_term=.75d329e11d94
 Brazil Ex-President Lula Loses Appeal Against Corruption Conviction, BBC News (23 Jan. 2018), available at http://www.bbc.com/news/world-latin-america-42810464
 See Reynaldo Turollo, Jr. & Letícia Casado, Court Unanimously Denies Habeas Corpus to Ex-President Lula, Folha de S. Paulo (7 Mar. 2018), available at http://www1.folha.uol.com.br/internacional/en/brazil/2018/03/1959500-court-unanimously-denies-habeas-corpus-to-ex-president-lula.shtml
 See José Ribas Vieira & Ranieri Lima Resende, Execução Provisória da Pena: Uma Causa para a Corte Interamericana de Direitos Humanos? [Provisional Execution of the Criminal Sentence: A Case for the Inter-American Court of Human Righs?], Jurisdição Constitucional e Direito Constitucional Internacional, ed. José Ribas Vieira, Margarida Lacombe & Siddharta Legale (Belo Horizonte: Fórum, 2016) 163-177, available at https://www.researchgate.net/publication/312160779_Execucao_provisoria_da_pena_causa_para_a_Corte_Interamericana_de_Direitos_Humanos_English_title_Provisional_Execution_of_the_Criminal_Sentence_A_Case_for_the_Inter-American_Court_of_Human_Rights
 See Reynaldo Turollo, Jr. & Letícia Casado, In Vote of 6 to 5, Federal Supreme Court Denies Lula Habeas Corpus, Folha de S. Paulo (5 Apr. 2018), available at http://www1.folha.uol.com.br/internacional/en/brazil/2018/04/1963562-in-vote-of-6-to-5-federal-supreme-court-denies-lula-habeas-corpus.shtml
 See Márcio Falcão & Matheus Teixeira, Celso de Mello: Reunião sobre Prisão Era para Evitar Constrangimento de Cármen [Judge Celso de Mello: Meeting about Prison Was to Avoid Constraining the President Cármen Lúcia], Jota (20 Mar. 2018), available at https://www.jota.info/stf/do-supremo/celso-de-mello-pedi-reuniao-sobre-2o-grau-para-evitar-constrangimento-de-carmen-20032018
 See Ernesto Londoño & Shasta Darlington, Lula, Brazil Ex-President, Can Be Jailed, Court Rules, New York Times (4 Apr. 2018), available at https://www.nytimes.com/2018/04/04/world/americas/brazil-lula-corruption-prison.html
 A preliminary panel about this problem was presented by the first author during the IV International Seminar on Institutional Theory (LETACI/UFRJ), Rio de Janeiro, November 9-11, 2016. A new academic presentation was held in July 2017: Ranieri Lima Resende, Submajority Rules for the Brazilian Supreme Court: A Counterbalance to the Presidency’s Discretionary Powers to Set the Institutional Agenda, Conference of the International Society of Public Law (ICON-S): Courts, Power, Public Law, Copenhagen, July 5-7, 2017, Abstract available at https://www.icon-society.org/previous-conferences/2017-conference/programme_2017/
 See Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (New York: OUP, 2013) 160-161.
 See Virgílio Afonso da Silva, Deciding without Deliberating, 11 International Journal of Constitutional Law 557, 569-570 (2013); see also Diego Werneck Arguelhes & Ivar A. Hartmann, Timing Control without Docket Control: How Individual Justices Shape the Brazilian Supreme Courts’s Agenda, 5 Journal of Law and Courts 105 (2017).
 The Brazilian Supreme Court exercises mandatory jurisdiction over all cases submitted to its competence, with some similarities with the U.S. Supreme Court’s jurisdiction before the Judiciary Act of 1925. See Richard L. Pacelle, Jr., The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration (Boulder: Westview, 1991) 62; see also H. W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge: HUP, 1991) 301.
 Statistics extracted at 4 April 2018, from the site of the Brazilian Supreme Court (STF): http://www.stf.jus.br/portal/cms/verTexto.asp?servico=estatistica&pagina=pautapleno
 According to the current Rules of the Court (Article 83, § 1st), some kind of cases do not need to be submitted to the agenda, and the Judge Rapporteur may directly bring forward the case for collegiate deliberation, e.g.: Habeas Corpus and Conflict of Jurisdiction. However, even in these special situations, the general practice has been the adoption of the plenary’s agenda with rare exceptions, such as cases transferred from panels to the plenary and the return of requests to view by Judges.
 Article 934 of the Lei Federal No. 13.105, de 16 de Março de 2015, Código de Processo Civil [Civil Procedure Code], available at http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm
 Article 552 of the Lei Federal No. 5.869, de 11 de Janeiro de 1973, Código de Processo Civil [Civil Procedure Code], available at http://www.planalto.gov.br/ccivil_03/leis/L5869impressao.htm
 Article 874, § 3rd, of the Decreto-lei No. 1.608, de 18 de Setembro de 1939, Código de Processo Civil [Civil Procedure Code], available at http://www.planalto.gov.br/ccivil_03/decreto-lei/1937-1946/Del1608.htm
 Article 89 of the Rules of the Superior Court of Justice, available at http://www.stj.jus.br/publicacaoinstitucional//index.php/Regimento/article/view/3115/3312
 Articles 271 and 280 of the Lei Federal No. 4.737, de 15 de julho de 1965, Código Eleitoral [Electoral Code], available at http://www.tse.jus.br/legislacao/codigo-eleitoral/codigo-eleitoral-1/codigo-eleitoral-lei-nb0-4.737-de-15-de-julho-de-1965
 Rules of the Brazilian Supreme Court (1891), available at http://www.stf.jus.br/arquivo/biblioteca/RegimentoInterno/RI1891/1891.pdf
 Article 46 of the Rules of the Brazilian Supreme Court (1909) [emphasis added], available at http://www.stf.jus.br/bibliotecadigital/Plaquetas/47171/PDF/47171.pdf
 Articles 45 and 46, § 1st, supra note 22.
 Article 46, § 2nd, “d”, supra note 22.
 Article 4th, § 3rd, of the Decreto-lei No. 6, de 16 de Novembro de 1937 (emphasis added), available at http://www2.camara.leg.br/legin/fed/declei/1930-1939/decreto-lei-6-16-novembro-1937-354233-publicacaooriginal-1-pe.html
 José Ribas Vieira, O Poder Judiciário e a República: A Democratização Adiada [The Judiciary and the Republic: The Delayed Democratization], 33 Revista de Ciência Política 101, 103 (1990).
 Article 61 of the Rules of the Brazilian Supreme Court (1940), available at http://www.stf.jus.br/ARQUIVO/NORMA/REGIMENTOINTERNO1940.PDF
 Article 124, supra note 27.
 Article 133 of the Rules of the Brazilian Supreme Court (1970), available at http://www.stf.jus.br/arquivo/cms/bibliotecaConsultaProdutoBibliotecaRI/anexo/RegimentoInterno1970ConsolidadoAtualizado.pdf
 Article 128 of the Rules of the Brazilian Supreme Court (1980), available at http://www.stf.jus.br/arquivo/cms/legislacaoRegimentoInterno/anexo/RISTF_1980.pdf
 See Cícero Araújo, O Processo Constituinte Brasileiro, a Transição e o Poder Constituinte [The Brazilian Constituent Process, the Transition, and the Constituent Power], 88 Lua Nova 327, 357-359 (2013); see also Tom Gerald Daly, The Alchemists: Questioning our Faith in Courts as Democracy-Builders (Cambridge: CUP, 2017) 183-186.
 Supra note 24.
 See John Stuart Mill, Representative Government (Ontario: Batoche, 2001), 32-35.
 See Jeremy Waldron, The Wisdom of the Multitude: Some Reflections on Book 3, Chapter 11 of Aristotle’s Politics, 23 Political Theory 563, 564-565 (1995); see also Hélène Landemore, Collective Wisdom: Old and New, Collective Wisdom: Principles and Mechanisms, ed. Hélène Landemore & Jon Elster (New York: CUP, 2012) 1, 8.