1. Introduction
Distribution in written and oral media of news concerning the judiciary, in particular the Federal Supreme Court, in Brazil on a regular basis. In fact, there is never a day when the press does not release news in which the judiciary, especially the STF, is acting as the protagonist in matters of importance to society, such as health, education, housing, the environment, corruption (for example, mensalão “And” jet wash “), etc.
From the middle of the 20th century onwards, the judiciary began to play a decisive role in the political and social life of democratic countries.
This change, according to some prominent thinkers, even occurred due to the fact that at the end of World War II, the constitutions, especially of democratic countries, began to have normative force, therefore, they are directly applicable to the resolution of conflicts that have arisen. in society. Prior to this milestone, constitutions were simple and rhetorical proclamations of rights without any normative force, designed to at least inspire and harmonize the functions of legislators.
Thus, after World War II, the judiciary – with an emphasis on supreme courts in democratic, open, pluralistic and complex societies – assumed the role of the chief custodian of the Constitution, applying its legal principles and rules, which covered a wide semantic breadth, to the list of cases. presented on his sieve.
2) Judicial policy and judicial activism. STF
This phenomenon, described above, is the so-called judicial processing of politics, which, according to the best doctrine, consists in the enormous participation of the judiciary in the political and social life of democratic countries.
In this vein, the eminent sociologist Boa Ventura de Sousa Santos teaches (Courts in Contemporary Societies; Brazilian Journal of Social Sciences, no. 30, pp. 29-62):
“One of the most intriguing phenomena in modern political sociology and political science is the recent and ever-growing social and political influence of the courts: across Europe and the Americas, courts and judges, prosecutors, criminal police investigations, court sentences. Appear on the front pages of newspapers. in television news and is a frequent topic of conversation between citizens.…
Where appropriate, it should be noted that the topic of judicial policy making is too broad and controversial among legal scholars of law and political science, pending further research and deepening. The same is true of judicial activity that historically began in the US Supreme Court in Warrent. The two themes do not essentially mix, as we will see later, but they have an umbilical cord connection with each other.
Some authors point to several factors as reasons for the judicial consolidation of the policy (not exhaustive, it should be emphasized), namely: concentrated and / or diffuse control of the constitutionality of laws or regulations, exercised by the said control by the judiciary, in particular, the Supreme Courts Reductions in democratic states (in Brazil, in this range, this control is mainly carried out by STFs such as ADI, ADC, ADPF, as well as emergency appeal with general consequences); semantic disclosure of the norms of democratic constitutions, as a rule, filled with the principles of open or indefinite content, which most often cause the overflow of conflicts of interest into the judicial system, especially the supreme courts; in the particular case of Brazil, our 1988 Constitution – because it is too analytical, covering all aspects of social and political life – generates countless demands that go into the judiciary, especially the STF; the spread of collective action, as is the case in Brazil, popular and civil actions; crisis of representation in the other two powers, especially in the legislative (in Brazil, according to the expression of political scientist Sergio Abranchez, there is a so-called “coalition presidential approach”, in which, having taken power from here – that is, an exchange of votes in parliament for amendments and positions in the executive branch – relevant issues are being resolved).
By the way, the lessons of the STF Minister Luis Roberto Barroso regarding the judicial formalization of policy are indicative:
“Legal proceedings this means that politically, socially or morally important issues are ultimately decided by the judiciary.
It is an intuitive transfer of power to judicial institutions to the detriment of traditional political institutions, namely the legislative and executive “ (in the course on MODERN CONSTITUTIONAL LAW, Ed Saraiva, 5º edition, p. 437).
On the other hand, in modern democracies, the phenomenon of judicial activity is often encountered, which consists in the active, bold and creative interpretation of the Constitution by the judiciary in order to correct the omissions or delays of other authorities, especially the legislative, in the wording of the relevant normative acts. It should be noted that the above interpretation of the Constitution should be carried out taking into account the specifics of each case referred to the judiciary, especially the Supreme Court, while respecting the fundamental principle of reasonableness.
The antithesis of judicial activism is self-restraint, which manifests itself when the judiciary only seeks to challenge the normative acts of other authorities, especially laws, on the basis of a very limited and limited interpretation of the Constitution, if not literal. In self-restraint, the judiciary, especially the supreme courts, is limited to identifying and prosecuting regulations of other authorities, mainly the law, depriving the judiciary of its powers in order to make up for omissions or delays of other authorities. in particular the Legislative, as amended by the relevant regulations.
Therefore, it is important to note that judicial activism, in our opinion, can contain both positive and negative aspects. An example of the former is the STF’s decision in an injunction concerning the application of the rules of the right to strike in the private sector to civil servants.
Still on the path of positive aspects of judicial activity, we can identify two defendants of STF members: the first, concerning the provisional execution of a conviction in the second instance; the second, related to the limitation of the privileged forum to cover only crimes committed in the execution of the mandate, and, as a result, a decision that has already been finally taken and has caused massive applause from society. In both cases, the STF, based on an active, bold and creative interpretation of FC, while also respecting the particulars of each case and the principle of rationality, made commendable judgments.
In addition to what has been exposed regarding the positive aspects of judicial activity, the health lawsuits, in which we discovered the interference of the judiciary with the executive branch in order to force it to fulfill its obligations to provide public services related to the constitutional law to health …
With regard to the negative aspects of judicial activity, we can cite three characteristic cases in STF, namely: the decriminalization of anencephalic abortion; decriminalization of abortions performed before the third month of pregnancy; finally, the decriminalization of drug use. All of these cases – with the exception of the abortion of an anencephalic fetus, in which the STF rewrote sections 124 and 126 of the Brazilian Criminal Code to include said abortion on the list of legal abortion cases – are awaiting a final decision in court. …
The aforementioned STF minister talks about judicial activity:
“Judicial activism, on the other hand, is a position, a choice of a concrete and active way of interpreting the Constitution, expanding its meaning and scope. It usually settles – and this is the case in Brazil – in situations of denial Legislature, a certain bias between the political class and the civil society that prevents the effective satisfaction of certain social requirements. The opposite of judicial activity is self-restraint, behavior through which the judiciary seeks to reduce its interference in the actions of other powers “ (cited, p. 442).
The Minister lists in his book The Judicial Realization of Life some typical cases of judicial activity in the STF, some in our opinion positive and others negative, as mentioned above, since the latter represent a direct, direct and unjustified intrusion. jurisdiction of other powers, in particular the Legislative.
Thus, we position ourselves in the sense that judicial activity should be carried out with caution and thrift, based on an active and properly grounded interpretation of the Constitution, as well as with attention to the specifics of each case and to the basic principle of rationality, under pain of punishment. direct, blatant and neglected intrusion into the power of other powers, in particular the legislature.
On the other hand, we support the thesis that in situations where tragic or dramatic decisions or even egregious reasonable moral differences arise, phrases coined by doctrine and jurisprudence would be better if they were presented to the executive branch and authorities. Legislative, through its representatives elected by the people, despite the possibility of such decisions being taken by the judiciary.
In addition, we understand that – with the proper permission of those who think differently – in representative democracies that are still fragile and emerging like ours, where the so-called coalition presidential approach prevails, judicial activity, especially from the Supreme Courts, is inevitable. despite the fact that it is obvious that under democratic regimes problems would be better solved, to a large extent, in the political arena, by the elected representatives of the people.
On the other hand, finally, it is important to note that it is impossible to immediately and abstractly reveal whether judicial activity, especially on the part of the Supreme Court, is positive or negative. It is necessary to carefully and accurately analyze a particular case in order to assess whether there has been an explicit usurpation by the judiciary of the powers of the legislative and executive branches.
Final considerations
We believe that the topic under consideration still requires further study and deepening, and it should still be considered within the framework of doctrine and jurisprudence.
Indeed, the debate around judicial activism, especially in modern democracies, has just begun.
References
Luis Roberto Barroso, Course in Contemporary Constitutional Law, 5th edition, Saraiva.
Sarmento Daniel, Law, Democracy and the Republic, 2018, ED Forum.
Canotillo J.J. Gomes, 7th edition, Almedina.
Saints Bonaventure, Brazilian Journal of Social Sciences, No. 30.
