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.