The Brazil Federal Senate approved a constitutional amendment Wednesday that restricts the Supreme Federal Court’s (STF) ability to preliminarily rule on cases without at least six of the 11 members on the court, deepening a growing conflict between the country’s legislative and judicial branches.
Changes also include a six-month deadline for the court to decide a case on its merits when granting a precautionary decision, after which the case would become priority, and an extension of the deadline for decisions that could affect public policy or create additional expenses for the government.
The amendment, PEC 8/2021, now moves to the legislature’s Chamber of Deputies for approval where a similar amendment has been proposed. It would have the direct effect of preventing court’s ministers (judges) from issuing “monocratic” preliminary injunctions without a review from a majority of the court. The Senate justified the amendment by citing statistics claiming an average two-year wait time between preliminary decisions and a plenary statement. They further criticized the high court for “thoughtless activism” causing a danger to the separation of powers and for “extreme permissiveness” by ministers in requests for review.
Dissatisfaction in the legislature with the country’s Supreme Court has become pronounced in the last several years as the court has granted orders suspending legislative proposals and executive orders, specifically coming to a head with a September decision that invalidated a proposal demarcating continuous occupancy requirements for indigenous land claims. That bill was later amended and resubmitted to Brazilian President Lula de Silva before being partially vetoed. Precautionary decisions have been a noted weapon of the court in the area of agricultural reform and in cases concerning environmental law. a fact that takes special importance in a country that has reached a fifteen-year high in large-scale deforestation.
Brazil which contains a majority of the Amazon rainforest has undergone a “frenetic pace” of constitutional change since 2019 when Jair Bolsonaro became president, averaging seven-and-a-half constitutional amendments per year. While the country has often amended its constitution since its inception in 1988, scholars posit that recent amendments represent an encroachment on “fundamental constitutional principles” threatening constitutional supremacy in the name of self-serving political action.
