The Workers' Party (PT) caucus is going to the Supreme Court to secure a seat on the Chamber's leadership.

247 - The Workers' Party (PT) caucus in the Chamber of Deputies filed a lawsuit with the Supreme Federal Court (STF) to guarantee a place in the composition of the Board of Directors. The writ of mandamus, addressed to the president of the STF, Minister Cármen Lúcia, is signed by the PT leader in the Chamber, Deputy Carlos Zarattini.

The Workers' Party (PT) argues in the lawsuit that the Federal Constitution and the Chamber's Rules of Procedure guarantee a place for the minority on the Board of Directors.

Among the party's arguments for securing the Minority's seat among the 7 full members of the Board are:

• The rules "guarantee" the Minority a seat on the Board, by virtue of Article 8, §3 of the Internal Regulations of the Chamber of Deputies.

• "Minority" is the largest representation of the opposition, by virtue of the heading of Article 13 of the RICD.

• The intention of the regulation is to guarantee a reasonable minimum balance of power in the decisions of the main body of the House – the Board of Directors.

• In this regard, it is important to point out that the Alternate Secretaries are not part of the Board of Directors and, therefore, do not guarantee the balance of power in the Board's decisions, as ensured by Article 8, §3, of the Internal Regulations of the Chamber of Deputies.
Reasons that confirm that Alternate Secretaries are not part of the Board of Directors.

• They are not included in the concept of the Board of Directors, as defined in §1 of Article 14 of the Internal Regulations of the Chamber of Deputies, which only refers to the President, the two Vice-Presidents and the four Secretaries.

• The Alternates are not alternates for the Board, but only Alternates for the Secretaries, pursuant to Articles 19 and 19-A of the Internal Regulations of the Chamber of Deputies.

• The signatures of the Alternate Secretaries are not required for the drafting of the Acts of the Board, except in their capacity as substitutes for an absent Secretary (which reinforces that occupying the alternate position does not guarantee the minimum balance intended by the rule in Article 8, §3).

• By virtue of Article 14, § 5, the prohibitions that apply to members of the Board, such as holding leadership positions or commissions, do not apply to the Alternate Secretaries (Article 14, §5, RICD).

• Articles 5 and 6 of the Internal Regulations of the Chamber of Deputies, which deal with the election of the Board, exclude the Alternate Secretaries of the Board, stating verbatim: "the election of the president, the other members of the Board and the alternate Secretaries will take place".

• Resolution 95/2013 of the Board, which defines the duties of the members of the Board, makes no reference to the Alternate Secretaries.

• The duties defined in Articles 19 and 19-A of the Internal Regulations of the Chamber of Deputies are determined either by the delegation of ordinary functions of the Secretaries, or by the performance of functions in the absence of the Secretaries.

The election for the leadership of the Chamber of Deputies takes place on the morning of Thursday, February 2nd, and the candidates are deputies Rodrigo Maia (DEM), the current president, Jovair Arantes (PTB), Rogério Rosso (PSD), Júlio Delgado (PSB), André Figueiredo (PDT), Luiza Erundina (PSOL), and Jair Bolsonaro (PSC).

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Read the full text of the PT caucus's action: 

"Your Excellency, the Honorable Minister President of the Supreme Federal Court."
MD CÁRMEN LÚCIA.

Urgent: Possibility of forfeiture of the right to vote in the election of the new Board of Directors of the Chamber of Deputies on February 2, 2017.

The Workers' Party – PT – a political party with definitive registration at the Superior Electoral Court (Resolution No. 11.165, of June 11, 1982), with representation in the National Congress, where it receives notifications (Petitioner), as well as at the address stated in the power of attorney that will accompany this document, and also, as an Active Co-litigant, CARLOS ALBERTO ROLIM ZARATTINI, Brazilian, married, economist, holder of Identity Card No. 4417827X – SSP/SP and CPF No. 003.980.998-63, in the exercise of the mandate of Federal Deputy for the PT/SP and currently Leader of the Workers' Party – PT Caucus in the Federal Chamber, with address at Annex IV – Office 808 – Brasília (DF), hereby appear before Your Excellency (the second representing the Parliamentary Caucus of the Workers' Party in the Federal Chamber – doc. 1), through the lawyers that The undersigned (doc. 2), based on articles 5, item LXIX, 37, caput, Art. 58, §1º and 102, I, “d”, of the Federal Constitution and, also, on what is established in article 1 of Law 12.016, of 2009, file this petition.

PREVENTIVE WRIT OF MANDAMUS
With Request for Preliminary Injunction

Against an illegal, abusive, and unconstitutional act perpetrated by the Honorable President of the Chamber of Deputies, hereinafter referred to as the Respondent, who must be summoned/notified of the proceedings of this mandamus, at the Presidency of the Chamber of Deputies - Chamber of Deputies - Brasília (DF), in view of the facts and legal grounds outlined below.

I – Summary of the Present Petition.

It is initially stated that, similarly to the Internal Regulations of the national Courts, the Internal Regulations of the Chamber of Deputies have the legal nature of substantive law and, as such, seek their basis of validity within the text of the Constitution itself.

In this sense, mutatis mutandis, this was the understanding of the Supreme Federal Court in the proceedings of ADI 1.105-7/DF, under the rapporteurship of Minister Ricardo Lewandowski:

PRECEDENT: REPORTING JUDGE MINISTER PAULO BROSSARD - STF - ADI-MC - PRELIMINARY INJUNCTION IN DIRECT ACTION OF UNCONSTITUTIONALITY - CASE: 1105/DF - DJ 27-04-01. VOTE. (...) The old Portuguese regulations are not to be confused with the internal regulations of the courts; they only have the name in common. The former were legislative variants of the absolute monarchy, while the latter result from the elevation of the Judiciary to a Power of the State and find their foundation and express provision in Constitutional Law. The act of judgment is the culminating moment of the jurisdictional action of the Judiciary and must be regulated in its internal regulations, excluding interference from the other Powers. The question is whether the legislator remained within the limits set by the Constitution or whether the Judiciary remained within the boundaries set by it, to safeguard its autonomy. The need for examination in light of the specific case. A law that interferes with the order of judgment would violate the independence of the judiciary and its consequent autonomy. Courts are responsible for drafting their internal regulations, which govern their operation and the order of their services. This constitutional prerogative stems from their independence from the Legislative and Executive branches. This power, already exercised under the 1891 Constitution, became explicit in the 34 Constitution and has been reaffirmed ever since, despite successive institutional disturbances. The Constitution removed from the legislature the power to regulate the internal affairs of the courts and assigned it exclusively to the courts themselves. Regarding the internal affairs of the courts, the law is their internal regulations. The internal regulations of the courts are substantive law. In the taxonomy of legal norms, the internal regulations of the courts are equivalent to law. The prevalence of one or the other depends on the subject matter regulated, as they are norms of equal category. In procedural matters, the law prevails; regarding the functioning of the courts, the internal regulations take precedence. Constitution, art. 5, LIV and LV, and 96, I, a. Legal relevance of the issue: precedent of the Supreme Federal Court and resolution of the Federal Senate. Reasonableness of the precautionary suspension of a rule that altered the order of judgments, which is granted until the judgment of the direct action.

In the same vein:

From this perspective, any disregard for the rules of procedure, particularly by their natural recipients (Federal Deputies), when a matter of eminently constitutional stature is at stake (composition of the board of directors - §1, article 58 of the Federal Constitution), far from being a mere internal matter, constitutes a true illegality that warrants the intervention of the Judiciary.

This petition concerns the constitutional guarantee of representation for parliamentary minorities in holding leadership positions within the Chamber of Deputies, as prescribed by the legal statute governing parliamentary minorities and enshrined as a subjective public right in Article 8, §3 of the Chamber of Deputies' Internal Regulations, as follows:
"Article 8. In the composition of the Board, proportional representation of the Parties or Parliamentary Blocs participating in the Chamber shall be ensured, as far as possible, and they shall choose their respective candidates for the positions that, according to the same principle, they are entitled to fill, without prejudice to individual candidacies originating from the same benches, observing the following rules:"
§3. The participation of a member of the Minority is guaranteed, even if proportionality does not entitle them to a place.” (gn).

II – Lack of internal corporate matter. Violation of substantive law with constitutional status.

The jurisprudence of this Supreme Court has been oriented towards ensuring the consideration of petitions such as the one in these proceedings, since, in this case, it does not involve the practice of an act that entails the exercise of discretionary power by the Board of the Chamber of Deputies or its President.

If the matter were subject to discretionary judgment, the Judiciary could not interfere in the merits of the decisions adopted, as was the case with the dismissal decisions adopted in Writs of Mandamus No. 21.374-4/DF - Official Gazette of 02.10.92 - Summary No. 1.678-1 and No. 20247 - Official Gazette of 21.11.80, Summary No. 1.193-1. In the present writ, however, the issue under discussion is not an internal matter, in which a value judgment that belongs only to the Legislative Branch is at stake, but rather a matter concerning the effectiveness and regularity of a constitutional guarantee, namely, the right of participation in the administration of the Chamber of Deputies by parliamentary minorities.

The lessons of Professor Hely Lopes Meireles regarding the judicial review of acts emanating from the Legislative Branch are invaluable from the outset:

"The legislative process, currently having a constitutional framework of mandatory observance in all Chambers (articles 59 to 69) and its own internal regulations, has become subject to judicial review to safeguard the legality of its proceedings and the legitimacy of the lawmaking process. It is clear that the Judiciary cannot delve into the merits of the decisions of the Board, the Committees, or the Plenary, nor should it inquire into the political choices that led to the approval or rejection of bills, proposals, or vetoes, but it can and should – when an infringement of individual rights is alleged – verify whether the legislative process was fully observed, including its internal regulations. Upon encountering an infringement of the Constitution, the law, or the internal regulations, it is the Judiciary's responsibility to annul the illegal decision of the Legislature so that another may be made in a legal manner." (Brazilian Administrative Law, p. 609, 17th ed., Malheiros). (emphasis added)

The issue at hand—the occurrence of an offense against the clear right of the political party and its parliamentary representatives—constitutes a direct offense against the constitutional text.

Thus, this petition does not address merely internal procedural matters of the Chamber of Deputies. On the contrary, this writ alleges a violation of a matter of constitutional stature, deserving prompt and swift intervention from this Supreme Federal Court.
Indeed, in the opinion delivered in MS 22.183-6, Minister Marco Aurélio, although in the minority, asserted:

“(...)
Meanwhile, constitutional values ​​must be preserved at all costs, even if contrary to views based on political passions common to mankind, preventing majority political forces from obstructing the activity of the representations that I consider indispensable to democratic life, that is, those of minorities. Faced with this argument, so prevalent today, that this is a matter of internal governance, the dividing line lies in the nature of the controversy, in the parameters that serve as the basis for its definition. If these derive from the Federal Constitution, as in the present case, which ensures, through the provision of §1 of article 58, the proportional representation of parties or parliamentary blocs in the constitution of the Boards and committees of the Legislative Houses, there is no room for such an allegation, which, having extravagant contours to the point of excluding access to the Judiciary, must deserve strict and not elastic examination, especially when, I repeat, a constitutional guarantee is at stake. (...) The specific situation in this case is undeniably challenging for a writ of mandamus, without one being able to superficially dismiss the obstacle inherent in the involvement of matters relating to internal economics, that is, matters to be dealt with only according to rules that concern solely those who comprise the Institution. Those interested in the prevalence of the precept of §1 of Article 58 of the Federal Constitution are not only politicians, political parties, or parliamentary blocs formed in either House of Parliament. The greatest interest lies with society, because the proportional representation foreseen therein guarantees that the voice of only one will not be heard, nor will the influence of the majority party be considered indisputable in guiding the work to be carried out.”

Minister Celso de Mello also stated this in his opinion in the aforementioned MS 22.183:

"It is necessary to bear in mind, when recognizing the indisputably constitutional nature of the controversy under examination, that the normative precept inscribed in Article 58, §1, of the Federal Constitution is intended to enable the active participation of parliamentary minorities in the process of directing and administering the legislative chambers, since it is necessary to ensure Political Parties the right to co-participate in the conduct of the administrative life of Parliament."
The assertion, entirely compatible with the democratic essence that characterizes the Brazilian political regime, as defined by the Constitution of the Republic itself, cannot be denied: the circumstance that 'the majority does not need the votes of the minority to succeed in all its initiatives does not mean that it can, for that reason alone, violate constitutional and procedural rules to expedite the completion of acts in its interest. The minority, before the law, is placed on an equal footing with it, and everyone has the inescapable obligation to submit to the rules imposed by the Rules of Procedure and those imposed by the Constitution' (RT 442/193).
It is therefore impossible to disregard the very rationale underlying the normative precept enshrined in Article 58, §1, of the Constitution, whose political-legal foundation, deriving from the need for unconditional respect for parliamentary minorities, acts as a true prerequisite for the legitimation of the democratic order:
'The actions of a democratic and responsible government towards the people therefore require the participation of an opposition that fulfills the dual role of driving force and organ for the protection of the Constitution.'
If one of the various sectors of the community is dissatisfied, nothing serves better, nor more effectively, to express that dissatisfaction than the conduct of the parliamentary opposition.
"In reality, there is no democratic regime without opposition, and this opposition must be guaranteed the full right to oversee the actions of the majority group and contribute to the improvement of institutions." (Revista dos Tribunais, vol. 442/195).

PINTO FERREIRA also demonstrates a similar understanding of the subject when he emphasizes – based on irreproachable doctrinal considerations – that the democratic essence of any regime of government rests on the existence of an essential harmony between Majority rule and Minority rights:
'The true idea of ​​democracy generally corresponds to a dialectical synthesis of the principles of freedom, equality, and majority rule, with the corresponding protection of political minorities, without which true constitutional democracy cannot be understood.'
Majority rule itself, as the center of gravity of democracy, demands respect for political minorities defeated in elections. The majority principle is the positive pole of democracy, and finds its antithesis in the minority principle, which constitutes its negative pole; both are strictly indispensable in elucidating the concept of authentic democracy.
The democratic principle is therefore not the tyranny of numbers, nor the dictatorship of public opinion, nor the oppression of minorities, which would be the most brutal of despotisms. The majority of the people can decide their own destiny, but with due respect for the rights of political minorities, adhering in their decisions to the inviolable principles of freedom and equality, under penalty of annihilating democracy itself.
The free deliberation of the majority is not sufficient to determine the nature of democracy. Stuart Mill already recognized this impossibility in the last century: 'If all mankind, except one, were of one opinion, mankind would not be more justified in silencing that person than that person, if he had the power, in silencing the whole world.' In no less positive terms, the wise Englishman clarifies, in his Considerations on Representative Government, when speaking of true and false democracy: 'False democracy is only representation of the majority, true democracy is representation of all, including minorities. Its peculiar and true essence must therefore be a constant compromise between majority and minority.'
('General Principles of Modern Constitutional Law', volume I/195-196, item no. 8, 5th ed., 1971, RT).
It is clear, therefore, that the issue now submitted to the judicial review of this Supreme Court is not merely a matter of procedural law. Much more than that, the Court is confronted with a matter of undeniably constitutional origin. (...)

Thus, if the interpretation of the Internal Regulations of the Chamber of Deputies, as expressed by the respondent authority, disallows the assumption of a constitutional guarantee expressly stated in the internal governing rule, the illegality affecting the Petitioner's constitutional rights becomes evident, thus allowing, as stated, the intervention of the Judiciary. This is what is requested.

III – Of the Facts and Illegal Acts Committed.

Indeed, the Workers' Party in the Chamber of Deputies, through its Leader, now an active co-litigant, filed an official letter on February 1, 2017, to the Presidency of the Chamber of Deputies, requesting compliance with the legal provision, with constitutional status, contained in §3, of article 8 of the Internal Regulations of the Chamber of Deputies (doc. 3).

In response, during a meeting of the College of Leaders, the Presidency of the Chamber of Deputies informally informed the Leader of the Workers' Party that the aforementioned request would be denied, and that this decision would be formalized at a new meeting of the College of Leaders to be held later that day, February 1st, 2017. However, this meeting has not yet taken place (8:52 PM), conveniently hindering the author from producing evidence of the violation of his rights. Nevertheless, a report from the Chamber of Deputies' News Agency, published a short while ago, confirms the allegation: the Workers' Party, the second largest bloc in the Chamber of Deputies and the largest group among the members of the Parliamentary Minority, was relegated to occupying only the 1st Alternate position on the Board of Directors.

The College of Leaders defined this Wednesday (1st) the distribution of the positions of the Board of Directors of the Chamber of Deputies among the blocs and parties. The division followed the criterion of party proportionality.
Only the position of Speaker of the House allows for candidacy without following the principle of proportionality. That is, it can be from any party or bloc in the House.

By agreement, the distribution was as follows:
1st Vice-Presidency: PMDB
2nd Vice-Presidency: PP
1st secretary: PR
2nd secretary: PSDB
3rd secretary: PSB
4th secretary: PSD
First alternate: PT
2nd alternate: PRB
3rd alternate: PDT
4th alternate: SD
The biggest beneficiary of the division was the bloc comprised of 13 parties (PMDB, PSDB, PP, PR, PSD, PSB, DEM, PRB, PTN, PPS, PHS, PV and PTdoB), which has 358 deputies (the Chamber has 513 in total).
This bloc secured 7 of the 10 positions on the Board of Directors, which already have defined party affiliations. And it also has two declared candidates for president – ​​Rodrigo Maia (DEM) and Júlio Delgado (PSB).
The other candidates announced so far are Jovair Arantes (PTB), Rogério Rosso (PSD), Luiza Erundina (Psol) and André Figueiredo (PDT).
The Board of Directors is responsible for directing the legislative work and administrative services of the Chamber of Deputies. The election for the Board will be held this Thursday, starting at 9 am, in the Ulysses Guimarães Plenary Hall. By agreement between the leaders, only the candidates for president will be able to speak at the session, for 10 minutes each.
(…)
Report by Janary Júnior
Edited by Regina Céli Assumpção

The refusal to comply with the rule expressed in the provision set forth in paragraph 3 of article 8 of the Internal Regulations of the Chamber of Deputies constitutes a serious illegality, violating the constitutional right of the parliamentary minority, in this case held by the Workers' Party, as will be demonstrated below.

Indeed, paragraph 3 of article 8 of the Internal Law explicitly prescribes the following legal command, which essentially reflects the constitutional rights enjoyed by parliamentary minorities represented in the Chamber of Deputies:
"Article 8. In the composition of the Board, proportional representation of the Parties or Parliamentary Blocs participating in the Chamber shall be ensured, as far as possible, and they shall choose their respective candidates for the positions that, according to the same principle, they are entitled to fill, without prejudice to individual candidacies originating from the same benches, observing the following rules:"
§3. The participation of a member of the Minority is guaranteed, even if proportionality does not entitle them to a place.” (gn).

In turn, article 13 of the internal statute lists:
"Article 13. The Majority shall be constituted by the Party or Parliamentary Bloc comprising an absolute majority of the members of the House, with the immediately inferior representation being considered to be that which, in relation to the Government, expresses a position different from that of the Majority." (gn).

Based on a simple interpretation of the legal provisions cited, it can be concluded from the outset that:

1 – A member of parliament belonging to one of the political parties that make up the parliamentary minority has a subjective public right to a seat on the Board of Directors of the Chamber of Deputies;
2 – The Workers' Party constitutes the largest opposition group to the Government and, in that position, holds the status of representing the parliamentary minority in the Chamber of Deputies;
3 – As a consequence of these legal premises, the Workers' Party is entitled, as a minority, to one seat among the 07 titular positions on the Board of Directors of the Chamber of Deputies.

Your Excellency, please note that the prerogative of internal law, which aligns with the constitutional political statute of the rights of parliamentary minorities, as this Supreme Federal Court has already established on several occasions, is only perfected, from the point of view of substantive (and not merely formal) subjective law, when the titular positions of the Board of Directors are considered in contemplating minority representation.

In other words, the guarantee conveyed in paragraph 3 of article 8 of the internal law, which does nothing more than concretize a fundamental right derived from the constitutional text itself (paragraph 1 of article 58 and the legal status of parliamentary minorities), will not be ensured if, eventually, the "substitute Secretaries" are considered in the list of management positions, which, in fact, according to the rules, do not form part of the Board of the Chamber of Deputies.

This is undeniably asserted by the Chamber of Deputies' own Rules of Procedure, when it lists the following in Article 14 and paragraphs 1 and 2:
"Article 14. The Board, in its capacity as the Steering Committee, is responsible for directing the legislative work and administrative services of the Chamber."
§1 The Board is composed of a Presidency and a Secretariat, the former consisting of the President and two Vice-Presidents, and the latter of four Secretaries.
§2 The Board will also have four Alternate Secretaries for the purposes of §1 of article 19.”

As can be observed without any doubt, the Rules of Procedure of the Chamber of Deputies define the "Board of Directors" as being composed only of the titular positions (President, two Vice-Presidents and four Secretaries), not including, in the structure of the rules, the respective alternate Secretaries.

This is confirmed by the fact that paragraph 2 of article 14 is blatantly assertive in outlining the restricted duties of the alternate Secretaries, limiting them only to the function of substituting, in legal contingencies, the positions of titular Secretaries of the Board of Directors.

This legal interpretation is further confirmed by the provisions of the opening paragraph of Article 5 of the internal regulation, which states:

"Article 5. In the second preparatory session of the first legislative session of each legislature, on February 1st, whenever possible under the direction of the presiding officers of the previous session, the election of the President, the other members of the Presiding Board, and the Alternate Secretaries will take place, for a two-year term, with re-election to the same position in the immediately subsequent election prohibited."

The legal interpretation of the highlighted provision is utterly perplexing, insofar as when discussing the positions on the Board, it explicitly defines them as only the President and other titular positions ("...the election of the President and other members of the Board will take place..."), peremptorily excluding alternates (...and the alternates of the Secretaries...) from the legal definition of "Board of Directors".

Thus, the legal and constitutional guarantee enshrined in paragraph 3 of article 8 of the Rules of Procedure is only fulfilled, from a material point of view, when the subjective public right of representation of the parliamentary minority is ensured in the composition of the Board of Directors, among the list of titular positions, given that the alternate positions do not form part of the definition of the Board of Directors as a governing body for the purposes of the Rules of Procedure.

This understanding is reinforced by the recent Act of the Board No. 95, of April 11, 2013 (doc. 04), which defines in a very clear way the competence of the members of the Board of Directors, not including in the list of said positions and attributions, the alternates of Secretaries.

The inescapable conclusion, Your Excellency, is that the guarantee described in paragraph 3 of article 8 of the Rules of Procedure will not be ensured if it is understood that the representation of the parliamentary minority in the Chamber of Deputies would be covered by the eventual occupation of any of the alternate secretary positions on the Board of Directors.

Now, insofar as the Federal Constitution has chosen political pluralism as the foundation of the Brazilian State, whose greatest expression is the broad right to representation, so as to also give voice to political minorities, the Constitution of the Republic itself will be undermined and the legal guarantee of minority participation will be emptied if the representation of the Minority is not ensured in the distribution of the titular positions of the Board of Directors of the Federal Chamber.

That is exactly what Minister Marco Aurélio stated in his dissenting opinion in the Writ of Mandamus No. 22.183-6:
“(...)
Meanwhile, constitutional values ​​must be preserved at all costs, even if contrary to views based on political passions common to mankind, preventing majority political forces from obstructing the activities of the representatives I consider indispensable to democratic life, that is, those representing minorities.”

On the same occasion, and even more forcefully, although also in the minority, Minister Celso de Mello also stated:
"It is necessary to bear in mind, when recognizing the indisputably constitutional nature of the controversy under examination, that the normative precept inscribed in Article 58, §1, of the Federal Constitution is intended to enable the active participation of parliamentary minorities in the process of directing and administering the legislative chambers, since it is necessary to ensure Political Parties the right to co-participate in the conduct of the administrative life of Parliament."
The assertion, entirely compatible with the democratic essence that characterizes the Brazilian political regime, as defined by the Constitution of the Republic itself, cannot be denied: the circumstance that 'the majority does not need the votes of the minority to succeed in all its initiatives does not mean that it can, for that reason alone, violate constitutional and procedural rules to expedite the completion of acts in its interest. The minority, before the law, is placed on an equal footing with it, and everyone has the inescapable obligation to submit to the rules imposed by the Rules of Procedure and those imposed by the Constitution' (RT 442/193).
It is therefore impossible to disregard the very rationale underlying the normative precept enshrined in Article 58, §1, of the Constitution, whose political-legal foundation, deriving from the need for unconditional respect for parliamentary minorities, acts as a true prerequisite for the legitimation of the democratic order:
'The actions of a democratic and responsible government towards the people therefore require the participation of an opposition that fulfills the dual role of driving force and organ for the protection of the Constitution.'
If one of the various sectors of the community is dissatisfied, nothing serves better, nor more effectively, to express that dissatisfaction than the conduct of the parliamentary opposition.
"In reality, there is no democratic regime without opposition, and this opposition must be guaranteed the full right to oversee the actions of the majority group and contribute to the improvement of institutions." (Revista dos Tribunais, vol. 442/195).

PINTO FERREIRA also demonstrates a similar understanding of the subject when he emphasizes – based on irreproachable doctrinal considerations – that the democratic essence of any regime of government rests on the existence of an essential harmony between Majority rule and Minority rights:
'The true idea of ​​democracy generally corresponds to a dialectical synthesis of the principles of freedom, equality, and majority rule, with the corresponding protection of political minorities, without which true constitutional democracy cannot be understood.'
Majority rule itself, as the center of gravity of democracy, demands respect for political minorities defeated in elections. The majority principle is the positive pole of democracy, and finds its antithesis in the minority principle, which constitutes its negative pole; both are strictly indispensable in elucidating the concept of authentic democracy.
The democratic principle is therefore not the tyranny of numbers, nor the dictatorship of public opinion, nor the oppression of minorities, which would be the most brutal of despotisms. The majority of the people can decide their own destiny, but with due respect for the rights of political minorities, adhering in their decisions to the inviolable principles of freedom and equality, under penalty of annihilating democracy itself.
The free deliberation of the majority is not sufficient to determine the nature of democracy. Stuart Mill already recognized this impossibility in the last century: 'If all mankind, except one, were of one opinion, mankind would not be more justified in silencing that person than that person, if he had the power, in silencing the whole world.' In no less positive terms, the wise Englishman clarifies, in his Considerations on Representative Government, when speaking of true and false democracy: 'False democracy is only representation of the majority, true democracy is representation of all, including minorities. Its peculiar and true essence must therefore be a constant compromise between majority and minority.'
('General Principles of Modern Constitutional Law', volume I/195-196, item no. 8, 5th ed., 1971, RT). (...)

IV – The rights of parliamentary minorities. Illegality and unconstitutionality of the decision that does not guarantee the participation of the Party holding the minority in the composition of the titular positions of the board of directors.

As the Supreme Federal Court has long affirmed, the constitutional text, in several passages, conveys a true "statute of parliamentary minorities," so that paragraph 3 of article 8 of the internal law does nothing more than codify this constitutional prerogative in the House rules.
Thus, respect for the rights and prerogatives of minorities constitutes the essential core that underpins the democratic principle. The rights of parliamentary minorities have been upheld by this Supreme Court in numerous precedents.

In this context of affirming the rights of minorities, as a foundation for a constitutional choice for a Democratic State of Law, and which has political pluralism as its basis, the Supreme Federal Court (STF) also demonstrated that the exclusion of the participation of parties that make up the political minority in the House should not be tolerated.

From this perspective, when addressing the composition of Parliamentary Commissions of Inquiry in the case file MS 26.441-1/DF, in a precedent applicable to the present situation, Minister Celso de Mello asserted:
“[...]
It is worth mentioning, given its extreme relevance, the lesson of the late and eminent Professor GERALDO ATALIBA (“Judiciary and Minorities”, in Revista de Informação Legislativa, vol. 96/189-194), whose content – ​​applied to the case now under examination – highlights the constitutional basis legitimizing the Supreme Federal Court's cognizance of the present legal-institutional controversy:
"The truth is that a true democratic republic only exists where minorities are guaranteed the right to act, to establish themselves as an institutionalized opposition, and to have their rights to dissent, criticize, and express their views ensured. Where, in short, the opposition can use all democratic means to try to reach the government. There is a republic where, effectively, the alternation of power is a legally guaranteed possibility, conditioned only by political mechanisms dependent on public opinion."
...................................................
A truly democratic Constitution must guarantee all the rights of minorities and prevent all abuse of power, all arbitrariness, all oppression against them. More than that – through mechanisms that ensure proportional representation – it must assign a significant institutional role to the most expressive minority groups.
...................................................
For the protection and safeguarding of minorities and their necessary participation in the political process, the republic makes the opposition an institutional instrument of government.
...................................................
It is imperative that the Constitution not only guarantees the minority (the opposition), but also recognizes its rights and even functions. (...).” (emphasis added)
...
The imperative need to uphold the supremacy of the Constitution, to which the will of all organs and agents of the State who are the custodians of the political-legal functions defined by the theory of separation of powers is necessarily subordinated, on the one hand, and the unavoidable obligation to make effective the constitutional clauses that provide, in a mandatory and binding manner, for the rights of parliamentary minorities, on the other, fully legitimize, in the case under judgment, the cognizance of the present litigation and the consequent action of the Supreme Federal Court, especially if one considers the invocation by the petitioners that there would have been an arbitrary frustration of the right of minority groups to the initiation of a parliamentary investigation, notwithstanding that it was requested, in this case, in an act that allegedly observed the other constitutional requirements, by 211 Deputies (more than the minimum, therefore, required by art. 58, § 3, of the Constitution).
It is worth reiterating, Madam President, that the principle of separation of powers cannot be invoked to establish, around one of the organs of national sovereignty, an inviolable circle of immunity that renders acts or omissions emanating from the legislative chambers immune from judicial review, even more so in those situations where the impugned conduct allegedly violates rights held by members of the Chamber of Deputies, even if – as is the case here – they are members of minority parliamentary groups.
...
If it is true, therefore, that "internal" acts and those of a political nature are covered by the circles of immunity that exclude the possibility of their judicial review, it is no less true that this particular qualification of legislative conduct cannot justify offenses against subjective public rights held by congressmen, which confer upon them the institutional prerogative of strict observance, by the body to which they belong, of the constitutional norms pertaining to the organization and functioning of parliamentary commissions of inquiry.
This is why the constitutional jurisprudence of the Supreme Federal Court has never tolerated the invocation of the "internal corporis" nature of an act emanating from the legislative houses as an illegitimate protective cloak for abusive and arbitrary behavior by the Legislative Branch. As PONTES DE MIRANDA observes ("Comments on the 1967 Constitution with Amendment No. 1 of 1969", volume III/644, 3rd ed., 1987, Forense) – even while emphasizing the judicial incognizability of political questions pertaining to the opportunity, convenience, utility, or correctness of an act emanating from a state body – "whenever it is discussed whether or not an act of the executive, judicial, or legislative branch is constitutional, the judicial question has been formulated, the political element has been exceeded, and we have fallen into the realm of the legal question" (emphasis added).
It is therefore necessary to recall the landmark decision rendered by the Plenary of the Supreme Federal Court, which, when judging MS 1.959/DF, Rapporteur Justice LUIZ GALLOTTI, recognized, in a unanimous vote, the existence of this Supreme Court's jurisdiction over a controversy motivated by a political-administrative decision of the Chamber of Deputies, which resulted – as then argued by the petitioner – in an unjust burden on an individual right held by him, thus dismissing the preliminary issue of the inadmissibility of the writ of mandamus.
...
In reality, the abusive interpretation of the Constitution cannot be tolerated, under penalty of becoming an unacceptable oppressive instrument of political domination, in addition to generating an inadmissible subversion of the positive legal order founded and legitimized by the very notion of a Democratic State of Law, which rejects any disrespect for the subjective public rights held by members of Congress, even those who, as in this case, comprise minority parliamentary groups.”

And Minister Celso de Mello continues:
SUMMARY: (...)
...
The Constitutional Status of Parliamentary Minorities: The Active Participation of Minority Groups in the National Congress, Who Have the Right to Oversee the Exercise of Power.
- In the Brazilian political-legal system, there exists a true constitutional statute for parliamentary minorities, whose prerogatives – notably those pertaining to the right to investigate – must be preserved by the Judiciary, which is responsible for proclaiming the high significance, for the democratic regime, of the essential nature of the jurisdictional protection afforded to the right of opposition, analyzed from the perspective of the republican practice of parliamentary institutions.
The rule set forth in Article 58, § 3, of the Constitution of the Republic is intended to enable the active participation of parliamentary minorities in the legislative investigation process, without requiring the agreement of the groups that make up the parliamentary majority.
- The right to opposition, especially that recognized for legislative minorities, so that it does not become an inconsequential constitutional prerogative, must be equipped with instruments of action that enable its effective and concrete practice within each of the Houses of the National Congress.
- The legislative majority cannot frustrate the exercise, by minority groups acting in the National Congress, of the subjective public right guaranteed to them by Article 58, § 3, of the Constitution, which confers upon them the prerogative to have a parliamentary investigation effectively initiated, for a specific period, regarding a determined fact. Precedents: MS 24.847/DF, Rel. Min. CELSO DE MELLO, e.g.
- The violation of the rights of parliamentary minorities constitutes, in essence, a disrespect for the rights of the people themselves, who are also represented by the minority groups that operate in the Houses of the National Congress.
...
[...]

Your Excellency, it should be noted that the internal law of the Chamber of Deputies, which has been violated, is in line with the constitutional text, peremptorily guaranteeing, in paragraph 3 of article 8, the legal guarantee that has been violated.

Thus, it is asserted, based on the Internal Law of the Chamber of Deputies, which has been violated, and on the Federal Constitution, that:

a) Paragraph 3 of Article 8 of the internal law explicitly guarantees a seat on the Board of Directors of the Chamber of Deputies to the representation of the parliamentary minority;

b) For the purposes of the bylaws, alternate positions are not included in the list of management positions of the Board of Directors;

c) The Workers' Party is the political party that holds the position of representing the minority opposition to the Government in the Chamber of Deputies;

(d) The Workers' Party has a subjective public right to occupy, as a parliamentary minority, a titular position in the composition of the Board of Directors of the Chamber of Deputies.

V – Regarding the prerequisites for granting a preliminary injunction.

The urgency of the measure stems from the imminent start of the voting process for the selection of the members of the Board of Directors, which will take place on the morning of February 02, 2016.

Furthermore, from the foregoing, the appearance of a valid legal claim emerges, which consists of the need for the Court to affirm and declare, loudly, the full normative force of the right of parliamentary minorities to participate in the leadership of the Legislative Chamber, so that the guarantee written in the internal law is not devoid of any binding content, all in order to establish that the right of the Workers' Party to hold a position on the board is guaranteed in the legal statute of parliamentary minorities.

On the other hand, the risk of irreparable harm is evident, insofar as the mere possibility of the parliamentary majority of the moment, held by the Presidency of the Chamber of Deputies (the coercive authority), undermining the democratic principle that guarantees the rights of minorities, as is being predicted, flagrantly violates the legal and constitutional text, weakening the very Democratic Rule of Law, and, as stated, undermining the rights of minorities.

From this perspective, the injunction, in addition to safeguarding the clear and certain right of the petitioning party, serves to maintain the integrity of the internal legal guarantee, the very constitutional status of minorities, which cannot, as stated, be at the mercy of the exclusive interests of the constituted parliamentary majority.

The preliminary injunction, on the other hand, avoids the discussion that took place in MS No. 90.257 (RTJ 99/1031), regarding whether, if it is not granted and the act is consummated, the writ of mandamus must be deemed inadmissible, with the harmful act remaining in effect, or whether it can be undone because that judicial measure is transformed from preventive to restorative of the violated legality.
- Regarding the request for an ex parte preliminary injunction.

Having demonstrated its prerequisites, the granting of a preliminary injunction is requested, in order to:

a) To determine that the Workers' Party, as the party holding the parliamentary minority, has a subjective constitutional right (a clear and certain right) to occupy a full-fledged position on the Board of Directors of the Chamber of Deputies;

VII – Regarding the final request.

In light of the foregoing, this writ is filed to request that this Supreme Court be pleased to:

a) Finally, to definitively grant the requested security, ratifying the preliminary injunction granted, in order to ensure that the Workers' Party, the largest political party among the members of the Parliamentary Minority, holds a titular position on the Board of Directors of the Chamber of Deputies;
b) To notify the respondent authority so that, if it so wishes, it may provide the information it deems relevant, within the legal timeframe;

c) To summon the Chamber of Deputies (Union), so that, if it so wishes, it may express its opinion on the present petition;

d) After hearing the Attorney General of the Republic.

It requires proof of the alleged facts through the attached documents, as well as through all means of evidence not prohibited by law.

Due to the urgency of the petition, a deadline is requested for the submission of the power of attorney for the petitioner and the active co-litigants.

The case is valued at R$ 100,00 (one hundred reais).

Terms in which
Request for approval.
Brasilia (DF), February 1, 2017.

 

Carlos Alberto Rolim Zarattini
Federal Deputy – PT/SP

 

Alberto Moreira Rodrigues
OAB/DF - 12.652

Eneida Vinhaes Bello Dultra
OAB/DF – 13.993"