Starting today, the Supreme Federal Court's trial of the Mensalão scandal enters its decisive phase, when the admissibility of the appeals for clarification will likely be discussed in tomorrow's session. These appeals would allow the Supreme Court to retry the case on those points where the convicted individuals obtained at least four votes in their favor. If the discussion of the few remaining appeals for clarification is prolonged, the matter will be left for sessions after September 7th, which could be marked by large demonstrations across the country.
The debate must be conducted within its normative context. The current internal regulations of the Supreme Court were enacted in 1980, when the 1969 Constitution, granted by the military leaders and disguised as an amendment, was in effect. This gave the Supreme Court, and only the Supreme Court, primary normative power, a power never before possessed in its entire constitutional history. This power allowed the Supreme Court to legislate, through its internal regulations, on procedural matters, a matter proper to Congress, including defining rules pertaining to original criminal actions, such as Criminal Action 470, or to appeals.
The Supreme Federal Court (STF), vested with this primary normative competence, formulated several rules in its internal regulations and created new appeals, such as the possibility of dissenting opinions against Supreme Court conviction rulings.
When the 1988 Constitution came into effect, this power ceased, so much so that in a debate held in the Supreme Court plenary, Minister Joaquim Barbosa himself said that the internal regulation should be revoked in light of the new legislation, and Celso de Mello warned that the Supreme Court could no longer do so, because this internal regulation contains materially legislative content, and now this task belongs only to the National Congress.
That is why Congress, in 1990, enacted Law 8.038, which dealt with this issue. The Supreme Federal Court even legitimately admitted appeals for reconsideration against rulings issued in direct actions of unconstitutionality (Adin). But later, in 1999, Congress enacted a law that regulated the matter in the Supreme Court, eliminating appeals for reconsideration in matters of direct actions of unconstitutionality.
The same legal regime that prevailed under the 1969 Constitution allowed the Supreme Federal Court (STF), when ruling on so-called motions for clarification, to deviate from the Code of Criminal Procedure, a law that establishes a two-day deadline for filing such motions, and the STF established five days in criminal matters. The Supreme Court could do this because the basis for this normative competence of the STF resided essentially in the text of the Constitution then in force. Today, the STF can no longer even reduce the legal deadline to two days, as this matter now falls solely under the jurisdiction of Congress.
The Superior Court of Justice (STJ), for example, which was created by the 1988 Constitution, edited its internal regulations and copied the deadline for motions for clarification from the internal regulations of the Supreme Federal Court (STF), defining it as five days, regardless of whether the matter was civil or criminal. However, the STJ justices realized they could not do this in criminal matters, and in 1994, the STJ issued a regulatory amendment stating that motions for clarification would have a five-day deadline in civil matters, but in criminal matters the deadline is only two days, as prescribed by the Code of Criminal Procedure.
The internal regulation, based on article 333, paragraph 1 of the Supreme Court's internal regulations, which provides for the possibility of dissenting opinions, was received by the current Constitution with the force of law; therefore, it can only be revoked through laws, either expressly, as has already happened with the law governing the judgment of Direct Actions of Unconstitutionality (ADIs), or tacitly, as seems to be the case.
Law 8.038 does, in fact, legally regulate the procedural order of original criminal actions in both the Supreme Federal Court (STF) and the Superior Court of Justice (STJ), and it did not provide for appeals against single-instance decisions of the superior courts in criminal matters. And, not having done so, according to the interpretation that now seems to be the majority view in the STF plenary, the regulatory provision contained in Article 333, I, falls apart, revoked under the terms of § 1, Article 2, of the Law of Introduction to the Norms of Brazilian Law: "A later law revokes the earlier one (...) when it fully regulates the matter dealt with by the earlier law."
The debate must be conducted within its normative context. The current internal regulations of the Supreme Court were enacted in 1980, when the 1969 Constitution, granted by the military leaders and disguised as an amendment, was in effect. This gave the Supreme Court, and only the Supreme Court, primary normative power, a power never before possessed in its entire constitutional history. This power allowed the Supreme Court to legislate, through its internal regulations, on procedural matters, a matter proper to Congress, including defining rules pertaining to original criminal actions, such as Criminal Action 470, or to appeals.
The Supreme Federal Court (STF), vested with this primary normative competence, formulated several rules in its internal regulations and created new appeals, such as the possibility of dissenting opinions against Supreme Court conviction rulings.
When the 1988 Constitution came into effect, this power ceased, so much so that in a debate held in the Supreme Court plenary, Minister Joaquim Barbosa himself said that the internal regulation should be revoked in light of the new legislation, and Celso de Mello warned that the Supreme Court could no longer do so, because this internal regulation contains materially legislative content, and now this task belongs only to the National Congress.
That is why Congress, in 1990, enacted Law 8.038, which dealt with this issue. The Supreme Federal Court even legitimately admitted appeals for reconsideration against rulings issued in direct actions of unconstitutionality (Adin). But later, in 1999, Congress enacted a law that regulated the matter in the Supreme Court, eliminating appeals for reconsideration in matters of direct actions of unconstitutionality.
The same legal regime that prevailed under the 1969 Constitution allowed the Supreme Federal Court (STF), when ruling on so-called motions for clarification, to deviate from the Code of Criminal Procedure, a law that establishes a two-day deadline for filing such motions, and the STF established five days in criminal matters. The Supreme Court could do this because the basis for this normative competence of the STF resided essentially in the text of the Constitution then in force. Today, the STF can no longer even reduce the legal deadline to two days, as this matter now falls solely under the jurisdiction of Congress.
The Superior Court of Justice (STJ), for example, which was created by the 1988 Constitution, edited its internal regulations and copied the deadline for motions for clarification from the internal regulations of the Supreme Federal Court (STF), defining it as five days, regardless of whether the matter was civil or criminal. However, the STJ justices realized they could not do this in criminal matters, and in 1994, the STJ issued a regulatory amendment stating that motions for clarification would have a five-day deadline in civil matters, but in criminal matters the deadline is only two days, as prescribed by the Code of Criminal Procedure.
The internal regulation, based on article 333, paragraph 1 of the Supreme Court's internal regulations, which provides for the possibility of dissenting opinions, was received by the current Constitution with the force of law; therefore, it can only be revoked through laws, either expressly, as has already happened with the law governing the judgment of Direct Actions of Unconstitutionality (ADIs), or tacitly, as seems to be the case.
Law 8.038 does, in fact, legally regulate the procedural order of original criminal actions in both the Supreme Federal Court (STF) and the Superior Court of Justice (STJ), and it did not provide for appeals against single-instance decisions of the superior courts in criminal matters. And, not having done so, according to the interpretation that now seems to be the majority view in the STF plenary, the regulatory provision contained in Article 333, I, falls apart, revoked under the terms of § 1, Article 2, of the Law of Introduction to the Norms of Brazilian Law: "A later law revokes the earlier one (...) when it fully regulates the matter dealt with by the earlier law."