LEGIFERIZING PROACTIVITY OF THE STF AS PARALLEL LEGISLATOR
ROBERTO DA SILVA ROCHA
INTRODUCTION
The activity of the STF in the jurisdictional system has been that of normal judicial provision within the constitutional parameters of the division of powers according to art. CF88 and EC. A phenomenon has emerged among jurists, including Ives Gandra Martins and others, retired ministers such as retired minister Celso de Mello, who disagree among themselves regarding the extent of the STF's competence to define and redefine the scope of legal interpretation on topics including those omitted in CF88 and not regulated by the legislative houses. Some consider these cases as excessive legislative activity, while others defend the STF's legislative overactivity to fill legal gaps and resolve the semantic obscurity of the regulatory text.
I - BIBLIOGRAPHICAL REVIEW
I-a Internal Regulations of the STF Supreme Federal Court
RISTF Art. 179. The Attorney General of the Republic may submit to the Court an examination of a federal or state law or normative act so that the Court may determine its interpretation.
RISTF Art. 252. When, from a decision rendered in any Court or Tribunal, there is an immediate risk of serious harm to public order, health, security or finances, the Attorney General of the Republic may request that the case be referred to the court, so that its effects may be suspended, returning full knowledge of the dispute to the Supreme Federal Court, unless the decision is restricted to the incidental issue, in which case knowledge shall be limited to that. Sole paragraph. A request for referral shall not be admissible if the contested decision has become final and binding, or if an appeal with suspensive effect is admitted.
RISTF Art. 354-e. The proposal for the publication, review or cancellation of a Binding Summary may deal with a matter of recognized general repercussion, in which case it may be presented by any Justice immediately after the judgment on the merits of the case, for immediate deliberation by the Full Court in the same session. (Included by Amendment to the Rules of Procedure No. 46, of July 6, 2011)
RISTF Art. 1 The provisions of the Internal Rules listed below shall come into force with the following wording: “Art. 21. (…) § 1 (…) § 2 The rapporteur may also, in the event of a clear disagreement with the Summary, immediately grant an extraordinary appeal. § 3 When requesting a date for judgment or presenting the case to the panel, the rapporteur shall indicate in the records whether he is submitting it to the Plenary or to the Panel, unless the competent body is determined by the simple designation of the class.
RISTF Art. 326. It is the responsibility of the President of the Court of origin, upon appeal of the denial decision to the Federal Supreme Court, to examine the admissibility of the extraordinary appeal filed under the terms of items I to X of the previous article. Art. 327. The Federal Supreme Court, in a Council session, is exclusively responsible for examining the argument of relevance of the federal issue. § 1º A federal issue shall be considered relevant if, due to its impact on the legal system and considering the moral, economic, political or social aspects of the case, it requires the assessment of the extraordinary appeal by the Court. § 2º An appeal on the merits may be filed against the decision denying the processing of the argument of relevance.
I-b PRECEDENTS
The Plenary of the Federal Supreme Court (STF) concluded the trial of the Claim of Non-Compliance with a Fundamental Precept (ADPF) 572 to declare the legality and constitutionality of the Inquiry (INQ) 4781, instituted with the objective of investigating the existence of fraudulent news (fake news), slanderous accusations and threats against the Court, its ministers and family members.
By ten votes to one, the understanding of the rapporteur, Minister Edson Fachin, prevailed that the Claim of Non-Compliance with a Fundamental Precept (ADPF) 572, whose object was Ordinance 69/2019 of the Presidency of the STF, which determined the initiation of the inquiry, is completely unfounded, “given the incitement to close the STF, the death or imprisonment threats of its members and the alleged disobedience of judicial decisions”. Justice Marco Aurélio was defeated and ruled in favor of the ADPF.
I-c Criminal organizations
In his vote, Justice Celso de Mello noted that the STF has the extraordinary and atypical function of investigating any real or potential harm to its independence, and the rules of the Internal Regulations of the STF that supported the opening of the inquiry qualify as an instrument for the protection and defense of order and constitutionality. According to him, it would not make sense to remove from the Court instruments that allow it to effectively protect the democratic order, the Democratic State of Law and the institution itself.
For the dean, the fraudulent news machine is similar to criminal organizations, but with the purpose of coercing the institution. Justice Celso de Mello emphasized that incitement to public hatred and the propagation of offenses and threats are not covered by the constitutional clause that protects freedom of expression. rity of expression and thought.
I-d Institutional reaction
The president of the STF, minister Dias Toffoli, stated that, for some time now, the Court and its ministers have been under attack and have had their integrity and honor threatened by digital militias that seek to attack the institution and the Democratic State of Law. According to the minister, the opening of the inquiry, by means of an ordinance signed by him, is a prerogative of institutional reaction that became necessary due to the escalation of attacks committed against the Court. He recalled that he took the initiative only after noting the “inertia or complacency of those who should have adopted measures to prevent the increase in the number and intensity of such attacks.”
I-e Freedom of expression
The only one to disagree, Justice Marco Aurélio considers that article 43 of the Internal Regulations of the STF, which supports the opening of the investigation, was not accepted by the 1988 Constitution. For the justice, there was a violation of the constitutional accusatory criminal system, which separates the functions of accusing, since the investigative procedure was not initiated by the Attorney General of the Republic, and this initial defect contaminates its processing. According to him, the investigations have as their object critical statements against the ministers who, in his understanding, are protected by freedom of expression and thought.
II - WORKING HYPOTHESIS
A decision by higher courts, namely: TST, STJ, STF, STM, can generate binding effects with the force of procedural guidance in the issuing of sentences limited to the jurisdictions and competences exclusively applicable to the specific case under analysis in the proceedings, with its compliance being mandatory for legal operators, direct and indirect administration bodies, except for divergences between judges and ministers of higher courts who can at any time review these jurisprudences, or the congress and the legislative houses (Federal Senate and Federal Chamber) have the power to develop a different understanding of the jurisprudence and create laws regulating the jurisprudential matter.
III - DEVELOPMENT
This text is intended to clarify for laymen in substantive and formal law who are mainly confused about decisions on burning issues that have not yet been regulated by constitutional law, constitutional amendments, ordinary laws, legislative and executive decrees, supplementary federal laws, provisional measures, resolutions, and administrative rules.
The thesis of this work is that judicial precedents called case law oblige courts and legal practitioners to comply with their normative and guiding decisions, but citizens who are not parties to the legal process are exempt, except when they are incidentally parties to the legal process; ordinary citizens who are not legal practitioners and are not public administrators are not obliged to comply with and abide by that which is not law, and therefore do not have to be aware of or respect them because case law is not law. No one can excuse themselves from complying with the law by claiming that they do not know it, art. 3 LINDB dec law 4567 of September 4, 1942. Therefore: summaries, reviews, rulings, and case law are not in the category of laws.
That said, it is worth subsuming recent cases that have aroused curiosity and popular debates that find the most varied expressions in the media in which it is commented that:
a) stable relationships with people of the same sex are legal;
b) same-sex unions are legal;
c) possession and recreational consumption of ~32 grams of marijuana is legal;
Therefore, it is necessary to immediately state and reaffirm that these judicial concessions (a; b; c) are registered and restricted to the particular case and exclusively benefit only the parties in the action under examination that received the final judgment.
Otherwise, each case in casu constitutes a violation of the legislation in force, which first violates what the Civil Code defines on marriage as a stable union between people who are a man and a woman, art. 1514 and art. 1517 of the Civil Code, art. 226 of the Federal Constitution of 1988 §3 and §5, with the prohibitions between ascending and descending relatives, aggregated via indirect filiation of stepchildren, and relatives by marriage, who cannot marry, must meet the qualification requirements and observe the prohibitions, suspensive causes, and impediments; the marriage statute and regulatory laws did not accept the stable union, therefore, it is not the citizen's obligation to observe this understanding on this subject given by the STF.
Six ministers voted to declare unconstitutional the article of the Drug Law No. 11,343/2006 in the RE process No. 635,659, which provided for the criminalization of this practice.
They are: Gilmar Mendes (rapporteur), Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso, Rosa Weber (already retired) and Cármen Lúcia.
Dias Toffoli voted to recognize the constitutionality of the article, but acknowledged that the law had already decriminalized the practice since its origin – which would be a administrative and not criminal wrongdoing. Despite this, he voted for the Criminal Court to remain competent to handle these cases.
Luiz Fux followed this position.
Nunes Marques, Cristiano Zanin and André Mendonça were defeated, voting to maintain the possession of marijuana for personal use as a crime.
The next step to become law would be to send an amendment for voting and subsequent enactment and publication if approved by the Federal Senate, which was not done. Therefore, this decision by the Supreme Court is still pending, as it is not law and depends on each marijuana user filing a lawsuit to guarantee their right declared in a final judgment until Congress makes these measures a constitutional law.
IV - CONCLUSIONS
There is a difference between a law and a decision by the STF or any higher court that must forward to the National Senate the decisions of ADIN, ADECON, for voting and approval of cancellation of laws and deliberations that violate the text of the Constitutional law art. 52, item X CF88, modifying it, EC 45 art. 8 with its binding effect approved by the SF with two-thirds of the votes, and publication restricting or expanding the scope of the law, because the citizen is obliged to comply with the laws enacted and published in the official gazette of the union, otherwise, the decisions of the higher courts are only mandatory within the records of the proceedings that are subject to judgment on a case-by-case basis in the competent courts art. 103-A CF88, and affect only public administrators.
The following are obliged to follow the summaries of the STF art. 103-A:
a) bodies of the judiciary;
b) direct and indirect public administration;
c) in administrative spheres: federal, state, municipal, without prejudice to what may be established by law.
IV- The Summary is not law.
IV-a.1 - The Summary has binding force exclusively on decisions in specific cases in court records, and its application by public agents in discretionary cases may be assessed and analyzed, which will ultimately be analyzed only by the STF itself, according to art. 103-A CF88 §3, which will judge whether the disagreement is admissible or not.
IV-a.2 - Therefore, if an evangelical pastor is not an agent of the direct or indirect administration of a public body or a member of the judiciary of the federal, state or municipal spheres, he is not subject to compliance with binding summaries and may refuse to perform acts of marriage or stable union in his religious sphere, and in the same way, he does not fail to comply with the law if his conscience and beliefs oppose the act of consecrating a same-sex union in his church. Nor is it mandatory to accept the presence of a pothead in your church or worship service if you so desire and decide.
IV-a.3 - Summary is an administrative jurisprudential guideline of strict application to public servants in all spheres;
Iva.4 - The law is coercive erga omnes, objective and universal.
V - BIBLIOGRAPHY
1. BRAZIL. Civil Code. Organized by Jorge Goetten. Fed. Dep. SC. Brasília: CD, 2023.
2. BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Federal Chamber of Deputies, 65th ed. Brasília: CD, 2024.
3. BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil. Constitutional Amendment No. 45 of 2004. Amends the article. Modifies arts. 37, 40, 42, 48, 96, 149, and 201 of the Federal Constitution and provisions of the Federal Constitution, repeals item IX of § 3 of art. 142 of the Federal Constitution and provisions of Constitutional Amendment No. 20, of November 15, 1998, and contains other provisions. Federal Chamber of Deputies, 65th ed. Brasília: CD, 2024.
4. BRAZIL. Law of Introduction to the Norms of Brazilian Law – LINDB. Organized by Jorge Goetten. Fed. Rep. SC. Brasília: CD, 2023.
5. STF. Internal Regulations of the Federal Supreme Court – RISTF. Federal Chamber of Deputies, 65th ed. Brasília: CD, 2024.
6. STF. Federal Supreme Court. News website Available at <https://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?>
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