President Jair Bolsonaro (no party) appointed former Federal Attorney General André Mendonça for the post of minister of the Federal Supreme Court (STF). The Brazilian constitutional court is made up of 11 ministers, but since the retirement of Marco Aurélio Mello, last July 12, it has only ten members.
The delay causes damage to the functioning of the STF and to all citizens who have disputes under examination by the Court, since the reporting processes of the minister who retired are stalled awaiting the replacement. In addition, the STF votes may be tied with an even number of magistrates, causing delays in legal solutions.
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The 1988 Constitution and the Senate’s Internal Regulations regulate the form of nomination and nomination of candidates for the relevant position. The process begins with the presidential nomination to the Federal Senate, which, after being read in plenary, must be forwarded to the Committee on Constitution, Justice and Citizenship – CCJ, a collegiate composed of 27 Senators.
Only after approval of the opinion in the Commission can the nomination be based on the Plenary, requiring the approval of the absolute majority of senators so that the candidate can be nominated. The problem is that there is no legal provision on the maximum period that the congressional house can take until it makes its decision, favorable or prohibiting the appointment of the nominee
The message that submitted the name of André Mendonça has been stagnant since the 19th of August, as the president of the CCJ, Deputy Davi Alcolumbre (DEM-SP), has not yet appointed the rapporteur and appointed a date for the public hearing. The hearing or public indictment is the main stage of the process, in which senators can ask the candidate questions about matters pertaining to the performance of the position he intends to occupy.
The delay has been the target of criticism. According to the now retired Marco Aurélio, “the Supreme is one with 11, one with ten, the other with nine. And another with six ministers, the minimum quorum. The judgments are not the same. It is something that is not good for Brazil, and the hearing of a nominee for the Supreme Court cannot be shelved. The chairman of the commission discredits the mandate when he manipulates the hearing in this way.”
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The problem is that, as mentioned, the rules regarding the entire procedure do not define the deadlines for each procedure, and it is not the first time that this type of embarrassment has occurred. In 2014, after the retirement of Minister Joaquim Barbosa, then President Dilma Rousseff took eight months to nominate a name. Despite having received criticism at the time, including from some ministers of the Court, the delay was not the subject of any legal action.
These inconveniences are not easy to solve, due to the absence or, at least, the lack of clarity regarding the alternatives to do so.
In search of an outcome, senators Alessandro Vieira (Cidadania-SE) and Jorge Kajuru (Podemos-GO) filed a writ of mandamus with the STF against Davi Alcolumbre. Minister Ricardo Lewandodwski ordered Alcolumbre to provide information, but there has been no decision by the Judiciary yet.
There are big doubts about the feasibility of the measure. One of the main obstacles is the demonstration of what would be the liquid and certain right of the petitioners that is being violated and what illegality was committed, since the rules of the Senate’s Internal Regiment do not provide for a minimum and maximum period for the hearing to be appointed.
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In addition, historically the STF avoids as much as possible interfering in issues internal corporis of the Legislative Houses, basing decisions on the preservation of independence and harmony between the Powers (art. 2 of the 1988 Constitution) and on the impossibility of judicial review in the interpretation of regimental provisions.
On the other hand, recently, the same senators who filed the injunction against Alcolumbre filed another one so that the president of the Senate could install the Covid Parliamentary Inquiry Commission (CPI), due to the delay in the procedure. This appeal received a favorable decision, and Covid’s CPI is fully operational.
To avoid this judicialization, the best solution is to issue normative acts to impose clear and precise deadlines for carrying out the procedures that culminate in the appointment of a STF minister, both in the Constitution and in the Senate’s Internal Regulations
This will provide more transparency, clarity and legal certainty for institutions and the population.
The presentation of a Draft Resolution to amend the Senate’s Rules of Procedure would be very welcome, but for now there is no news of a similar proposal in the Senate.
In the meantime, citizens and institutions hampered by the delay are anxiously awaiting the next chapters of Brazil’s fickle democracy.
*Dylliard Alessi holds a master’s degree in Economic Law and Development from PUC/PR and a post-graduate degree in electoral law from UniCuritiba. He is president of the Legislative Monitoring Committee of OAB-PR. Lawyer at Peccinin Advocacia and legal advisor.
Edition: Vinícius Segalla