Gurgel supports Gilmar in blocking Congress.
Brazil's Attorney General contributes to the friction between the Legislative and Judicial branches; in response to a query from Supreme Court Justice Gilmar Mendes, Roberto Gurgel states he is in favor of suspending the processing of the bill that inhibits the creation of new political parties; Congressional leaders criticize the Supreme Court's "prior control," but Gurgel disagrees; "The bill, in itself, produces oppressive practical consequences on the predictability of the consequences of creating a new political party at this point," he wrote in his opinion; it's fuel for the fire of the crisis.
247 - The controversy surrounding the bill that inhibits the creation of political parties gained another chapter this Monday, and it wasn't in the direction of a solution. Prompted by Supreme Court Justice Gilmar Mendes, the Attorney General of the Republic, Roberto Gurgel, sent an opinion to the Supreme Court stating his support for suspending the congressional proceedings of the bill that makes new parties impossible, a process that was suspended by Mendes' decision.
The proposal's progress was blocked at the end of April, and, after Gurgel expressed his position, it must be analyzed by the full Supreme Court. According to the Attorney General, the bill is unconstitutional because it aims to alter an entrenched clause. "It is an inherent activity of the Judiciary to correct frauds against the Constitution. And that is what is at stake when the Supreme Federal Court is faced with a bill that conveys a normative proposal that is prohibited even by the Constituent Power of reform. [...] The challenged bill violates the Constitution in its central elements, in entrenched clauses."
Last week, the presidents of the Senate, Renan Calheiros (PMDB-AL), and the Chamber of Deputies, Henrique Eduardo Alves (PMDB-RN), expressed to Minister Gilmar Mendes their concern about what they described as the "prior control" that the Supreme Federal Court (STF) has been exercising over the legislative process, by interrupting the progress of bills.
Proposal
The proposal in question, authored by Congressman Edinho Araújo (PMDB-SP), prevents parliamentarians who change parties mid-term from transferring part of the party's funding and airtime on radio and television from their original party to the new party. While government supporters say the project aims to curb party disloyalty, the opposition denounces that its purpose is to discourage opposition presidential candidates, such as former Senator Marina Silva, in the 2014 election.
Gilmar Mendes issued a preliminary injunction to suspend the processing of the bill following a request from Senator Rodrigo Rollemberg (PSB-DF). This occurred shortly after the bill was approved in the Chamber of Deputies. The decision was interpreted as an intervention in the activities of Congress, since the measure had not even been approved when the Supreme Court intervened in the matter.
Fundamental clause
In the document, Gurgel cites that the Supreme Court has suspended proposals in progress on other occasions. "The crucial question for this case is this: if even an amendment to the Constitution is prohibited from legislating as the bill intends, can it be freely subject to parliamentary deliberation, especially given the immediate and drastic repercussions on the freedom to create political parties that its mere proposal entails?"
Roberto Gurgel agreed with the suspension of the proposal because, in his view, the text affects the creation of new political parties on the eve of an election year. "All of this leads to the common-sense conviction that the bill, in itself, produces oppressive practical consequences on the predictability of the consequences of creating a new political party at this point. Certainly, moreover, once approved, the impact on the right to create parties becomes even more detrimental. [...] The bill constitutes a serious deterrent to the creation of these political groups."
Read below the news report from Agência Brasil about the case:
Bill that hinders the creation of political parties is an attack on the Constitution, says Gurgel.
Deborah Zampier
Reporter from Agência Brasil
Brasilia – The Attorney General of the Republic, Roberto Gurgel, highlighted in an opinion sent today (13) to the Supreme Federal Court (STF) that the bill that inhibits the creation of new parties “is hostile to the Constitution”. In defending the suspension of the proposal, he agreed with the solution given by the rapporteur of the writ of mandamus, Minister Gilmar Mendes, when granting the request of Senator Rodrigo Rollemberg (PSB-DF).
Gurgel argues not only that the proposal is unconstitutional, but also that the Supreme Court should intervene to suspend its progress. One of the main criticisms from parliamentarians is that the Supreme Court is exercising prior control over laws, thus infringing on the sovereignty of the National Congress.
According to Gurgel, the Supreme Federal Court (STF) did not disrespect the separation of powers, but prevented the realization of an illegality. "The bill challenged by the petitioner violates the Constitution, in its central elements, in its entrenched clauses, thus exposing itself to correction by the Supreme Federal Court in a writ of mandamus filed by a senator of the Republic even before the plenary vote was finalized," the text states.
The prosecutor points out that the Supreme Federal Court (STF) already rejected, last year, interpretations that limit television and radio time and funding from the Party Fund to newly created parties. The discussion took place in the context of the emergence of... PSD"The purpose of the bill is in open and direct conflict with what the Supreme Federal Court has deemed constitutionally required," he analyzes.
Gurgel also criticizes the attempt to pass this type of reform through a bill. He points out that the Constitution does not authorize changes to its text that would harm entrenched clauses, and that the same should be understood in relation to bills. The prosecutor cites several precedents from the Supreme Federal Court against this solution from the Legislative branch, which he considers an "undeniable form of fraud against the Constitution."