Can the National Congress overturn decisions of the Supreme Federal Court?

If this question were asked to the current president of the STF (Supreme Federal Court), Joaquim Barbosa, the answer would be: Nooo! It can't be done! I deduce this from a phrase, worthy of a disciple of Hitler, that he said: "The Constitution is what the Supreme Federal Court says it is." But I will briefly show below that the Federal Constitution (CF), in force in Brazil, answers the opposite: Yes! It can be done!

According to Article 49, XI of the Brazilian Constitution, the National Congress has the "exclusive" competence to ensure the preservation of its legislative competence in the face of the normative attribution of the other branches of government. And in Article 102, the Constitution states that the Supreme Federal Court (STF) is primarily responsible for safeguarding the Constitution.

Note that safeguarding the Constitution is not the exclusive responsibility of the Supreme Federal Court (STF), but merely its primary function. That is precisely why the other branches of government must also safeguard it.

Moreover, Article 23 of the Federal Constitution expressly states: "It is the common competence of the Union, the States, the Federal District and the Municipalities: I - to safeguard the Constitution, the laws and the democratic institutions...". In other words, safeguarding the Constitution is a shared responsibility, not an exclusive prerogative of the Supreme Federal Court.

On the other hand, note that it is the exclusive prerogative of the National Congress to preserve its legislative competence vis-à-vis the other branches of government.

Therefore, the ultimate decision on whether a decision by any body of another branch of government interferes with the legislative competence of the National Congress rests with the Congress itself, and no one else.

That is why the National Congress can suspend decisions of the Supreme Federal Court and of any body or member of the Judiciary or the Executive Branch, if it believes that its legislative authority is being usurped or violated.

This understanding is expressed most clearly and incisively in my proposed Constitutional Amendment, PEC 03/2011, which has already been unanimously approved for admissibility by the Constitution and Justice Committee of the Federal Chamber.

However, as stated above, there is fundamentally no need for this constitutional amendment for the National Congress to make decisions in this direction against the Judiciary. Popular sovereignty, through the 87/88 Constituent Assembly, already determined in the 88 Constitution that the National Congress would have this exclusive prerogative.

Furthermore, in my understanding, the National Congress's own board can preliminarily suspend decisions of the Supreme Federal Court (STF). And if its decision is questioned by any of its parliamentarians, then it will submit it for consideration by the Plenary of the National Congress. And that is why I formally requested the president of the National Congress to annul the STF's act that permitted the abortion of anencephalic fetuses.

It is also important to point out that it is not within the purview of the Supreme Federal Court (STF) to question or modify an article of the Federal Constitution. The article was placed in the Constitution by the National Constituent Assembly or the National Congress, both elected by the people. And there is no article in the Constitution that authorizes the STF, through interpretation, to modify what is clearly expressed therein. This recently occurred in relation to the new rules of the FPE (State Participation Fund) and the loss of mandates for deputies.

Even in cases of contradiction or gaps, the most the Federal Constitution authorizes the Supreme Federal Court (STF) to do is to make its recommendation to the National Congress to take the necessary measures, and not, conversely, to usurp the legislative competence of the National Congress and set deadlines for it, as in the case of the FPE (Fund for Participation of States). Can you imagine the National Congress setting deadlines for the Judiciary to judge cases that have been awaiting a legal decision for years? Indeed, mutual respect between the branches of government is the path to "harmony" foreseen in the Federal Constitution.

Finally, the Brazilian Constitution, in its article 103-B, §4, very clearly mandates that the CNJ (National Council of Justice) oversee the functional duties of all magistrates, without exception. Therefore, the Supreme Court justices are included in this oversight. And for this very reason, the interpretative norm, created by the STF (Supreme Federal Court) to protect its members from CNJ oversight, must be suspended by the National Congress. If the CNJ were acting constitutionally, without following this hermeneutical fraud of self-protection, some STF justices would already have been removed for misconduct and violation of the Statute of the Judiciary.

Such measures are part of the struggle for the real and historical construction of our Democratic Rule of Law, established in Article 1 of our 1988 Constitution.

The National Congress is therefore challenged, at this moment, to fulfill its constitutional duties of suspending the acts and decisions of the Judiciary that undermine its legislative competence, in accordance with Article 49, XI of the Federal Constitution.

As a member of the National Congress, I am making every effort to fulfill my duty. As Gandhi would say: "I have never worried about when I will succeed or if I will succeed. I am content to persevere in my efforts to do what I know to be my duty."