Who can defend us?

Image: João Nitsche


Commentary on the judgment by the STF on the possibility of reelection of the presidents of the Chamber and of the Senate

Initially scheduled for February 2021, the elections for the Board of Directors of the Senate and the Chamber of Deputies promise to be controversial. Gilmar Mendes, Dias Toffoli, Alexandre Moraes and Ricardo Lewandowski positioned themselves in favor of the possibility of reelection of the current Presidents of the two Legislative Houses, Rodrigo Maia (DEM-RJ) and Davi Alcolumbre (DEM-AP). The issue is discussed under the Right Action of Unconstitutionality 6.524, filed by the Brazilian Labor Party (PTB) in August 2020

What does the Constitution of the Republic say on the subject? Let's see art. 54, paragraph 4:

“Each of the Houses will meet in preparatory sessions, as of February 1st, in the first year of the legislature, for the investiture of its members and election of the respective Boards, for a term of 2 (two) years, prohibited from reappointment for the same office in the immediately subsequent election (emphasis added).”

What can be extracted from reading the constitutional norm? a) Which body meets: the Federal Senate and the Chamber of Deputies must meet; b) When: This meeting takes place from February 1st, in the first year of the legislature; c) The objective: the investiture of its members and the election of the respective Board of Directors; d) Term of office: 2 (two) years; e) Regarding re-election: reappointment to the same position in the immediately subsequent election is prohibited.

We accuse the Constituent Assembly of remaining silent on several relevant issues, but this is not the case for the reelection of the Presidents of the Federal Senate and the Chamber of Deputies. The text of the Constitution is, yes, clear, whether we like its wording or not. Changing the rules of the game according to political circumstances and the actors involved testifies against the legitimacy of the constitutional text. What is the reason for continuing to believe in the normative force of a text that is constantly being discredited through interpretations that disregard the literal content of the norms present there?

Interpreting the constitution in such a way as to disregard the literal content of its norms is something that, in the long term, is announced as disastrous for Brazilian democracy. The worst thing is when this happens to the body responsible for ensuring the integrity of the constitutional text – the Federal Supreme Court.

The Federal Supreme Court proudly declares to be the “Guardian of the Federal Constitution”. As such, it should protect the integrity of the text, so that the norms established therein are complied with. In this activity, interpretation is essential, as law is itself an interpretive activity. The limit of interpretation, however, is the text. It is not possible to ignore the text of the constitution when trying to say what constitutional law should be. The Constituent Assembly defined that, within the scope of the election for the members of the Board of Directors of the legislative houses, re-election is prohibited. The constituted powers can even mobilize to change the norm, according to the rite established in the constitution itself.

Allowing re-election via constitutional jurisdiction is an attempt against the constitutional text and against its legitimacy. As if by magic, the content of the constitution is ignored and the rules of the game change. It's not the first time this has happened - and unfortunately, it seems not to be the last. Let us remember, therefore, the judgment Habeas Corpus nº 126.292/SP, when, trampling the norm of art. 5, item LVII (“no one will be considered guilty until the final decision”), admits the possibility of serving a sentence after a conviction in second instance. The legal community did not seem to believe it: how was it possible that the constitutional text and the guarantees provided therein were violated in such a way? “Those responsible for that decision should be ashamed, so that such an absurdity will hardly be repeated”, thought the most indignant jurists. That decision represents, however, the starting point of the predilection of this new form of constitutional interpretation that, ignoring the content of the constitutional text, threatens the already unstable Brazilian constitutional order. In a scenario of total legal uncertainty, corroborated by those who should care for the normative force of the Constitution, we can only ask: and now, who will be able to defend us?

*Douglas Carvalho Ribeiro, lawyer, is a doctoral candidate in electoral law at the Universität Hamburg (Germany).


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