Brazil's STF Justice Dino: Judicial overreach undesirable, but court must not retreat

Flávio Dino, a Justice on Brazil's Supreme Federal Court (STF), acknowledged on Friday that the judiciary's "ultraprotagonismo", or overreach, is not ideal. However, he firmly defended the court's role in protecting fundamental rights, stating it must not retreat under pressure.

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It is true that we have an ultraprotagonismo of the Judiciary. And it is true that this is not desirable.

Speaking at a lecture for students at the Federal University of Bahia (UFBA) in Salvador, Dino explained the challenge lies in redefining the judiciary's space within the Brazilian political landscape without compromising the core tenets of a democratic state. "The Supreme Court should not be in the center of the square [of the Three Powers], but it also cannot run away from the square, as if it were fleeing, cornered, afraid of those who are displeased by decisions," he stated. He warned that if the Supreme Court retreats, it would leave nothing to guarantee the Constitution's fulfillment.

Dino argued that the judiciary often intervenes to address systemic problems that other branches of government have failed to resolve. He pointed to STF decisions concerning family law, indigenous health, the prison system, police brutality, and environmental protection as instances where the court has stepped in. He highlighted the court's ability to set goals, establish deadlines, monitor policy execution, and hold other branches accountable through structural litigation.

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The Supreme Court should not be in the center of the square [of the Three Powers], but it also cannot run away from the square, as if it were fleeing, cornered, afraid of those who are displeased by decisions. If the Supreme Court runs away, nothing remains today to guarantee the fulfillment of the Constitution.

Furthermore, Dino, who is the rapporteur for ADPF 854 concerning the expansion of "rapporteur amendments," indicated that the case is nearing a judgment. He advocated for a broad discussion on these amendments, questioning whether they might hinder political renewal by concentrating public funds in the hands of incumbent lawmakers. He suggested that empirical data after the elections could shed light on whether these amendments create an unfair advantage in the electoral process, potentially leading to a "crystallization of the political system."

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Is there not an inequality today in the electoral process that distinguishes those who have amendments from those who do not? And does this not lead to a crystallization of the political system?

The Justice also called for institutional mechanisms to oversee the use of public funds through these amendments, emphasizing that this discussion should not be seen as an attack on Congress. "It is the opposite, it is a defense of the National Congress, it is a defense of politics, it is a defense of the democratic system, which needs good practices. It is not, therefore, against politics. It is in defense of politics," he asserted. Tensions between the judiciary and the National Congress have been heightened by Dino's previous decisions to block and order the return of funds, and his initiation of investigations into the role of party leaders and non-elected politicians in allocating amendment funds.

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It is the opposite, it is a defense of the National Congress, it is a defense of politics, it is a defense of the democratic system, which needs good practices. It is not, therefore, against politics. It is in defense of politics.