📋 Tender Overview
Proposal that limits individual decisions by ministers of the Federal Supreme Court (STF) and unifies the procedural rite for legal actions that question the constitutionality of laws and normative acts will be analyzed by senators. Approved ten days ago in the Chamber, the Bill (PL) establishes rules for the judgment of so-called concentrated constitutionality control actions in the STF.
One of the central points of the proposal is the limitation to monocratic decisions, which are taken by just one minister. To this end, the proposal consolidates, into a single rule, the procedures applicable to the Direct Action of Unconstitutionality (ADI), the Declaratory Action of Constitutionality (ADC), the Allegation of Non-compliance with a Fundamental Precept (ADPF) and the Direct Action of Unconstitutionality by Omission (ADO).
From deputy Marcos Pereira (Republicanos-SP), PL 3,640/2023 standardizes the procedure, deadlines and rules that guide the judgment of these actions and establishes measures to reinforce the collegiality of decisions and limit the scope of individual decisions by ministers.
Individual decisions
According to the proposal, when a STF minister makes an individual decision, he must submit it to the courts Plenary in the following session. If this does not happen, the decision will become invalid. The text also requires that these decisions be justified, with the reasons that motivated their urgency.
According to the author, the text reinforces the collective nature of the courts deliberations and prevents measures with great legal or political impact from being in the hands of a single judge.
Defined deadline
The project establishes a period of up to 12 months for the judgment of concentrated control actions, counting from the distribution of the process. The deadline may be extended upon justification, but the objective is to prevent actions dealing with the constitutionality of laws from continuing indefinitely.
The text also establishes deadlines for statements by the Attorney Generals Office (AGU) and the Attorney Generals Office (PGR), in addition to providing objective criteria for public hearings and the participation of interested third parties (amici curiae).
Qualified quorum
The project approved in the Chamber requires a quorum of two thirds of the ministers (eight votes) so that the STF can modulate the effects of decisions -- that is, define from when and how a decision will come into effect.
This rule replaces the initial proposal, which provided for a simple majority, and according to the deputies it ensures that changes with a relevant impact are taken with broad consensus among Supreme Court ministers.
Legitimate authors
The text also limits the possible authors of actions for concentrated control of constitutionality in the STF. The proposal lists nine authors considered legitimate: the President of the Republic; the tables of the Senate, the Chamber, legislative assemblies or the District Chamber; state or Federal District governors; the Federal Council of the Brazilian Bar Association (OAB); political parties with representation in Congress; and national trade union confederations or class entities.
As for political parties, the deputies text considers only those that have reached the so-called performance clause to be legitimate to propose action: the party will need to have 13 federal deputies distributed across a third of the states and DF, or obtain 2.5% of the valid national votes, also distributed in at least a third of the Federations units, with a minimum of 1.5% of the valid votes in each of them. In the case of party federations, the political parties that make up them will act in the action as a single group, together.
Unions and professional associations will need to prove national coverage and direct relevance to the topic addressed, with there having been a formal decision from the highest court before proposing the action for concentrated control of constitutionality in the STF.
PEC of monocratic decisions
In November 2023, the Senate approved a matter aimed at the Supreme Court and other higher courts. The proposed amendment to the Constitution obtained broad support among senators, both from the opposition and from the government bench, but is still awaiting deliberation by the Chamber of Deputies.
According to the proposal approved by the senators and sent to the Chamber, in the case of a request made during the Judiciarys recess that involves the suspension of the effectiveness of a law, a monocratic decision will be allowed when there is serious urgency or risk of irreparable damage, but the court must judge the action, in a collegiate manner, within 30 days after the resumption of work. Or the decision will lose its effectiveness.
Furthermore, when a minister grants precautionary decisions -- decisions taken as a precaution -- that deal with the declaration of unconstitutionality of a law, the merits of the action must be judged within six months. After this period, the action of concentrated control of constitutionality will take priorityon the agenda for other processes.
Agencia Senado (Reproduction authorized upon citation from Agencia Senado)
