Magistrate defends application of the Constitution to protect democracy and talks about the difference between “judicial activism” and “self-restraint”
The minister of STF (Federal Court of Justice) Flavio Dino released this Sunday (June 30, 2024) a summary of what he defended in lectures given during his first 6 months at the Court. Read the full below.
For Dino, constitutional jurisdiction is essential for the protection of democracy “whether in the face of attempts to break away through the use of violence, or in the face of ‘subtle’ anti-democratic attacks”.
In Publication on X (old Twitter) the judge also spoke about the relationship between “judicial activism” It is “self-restraint”. According to him, understanding the terms makes it easier to identify the possibilities and limits of the Judiciary’s actions.
Judicial activism can be defined as a behavioral choice adopted to interpret the Constitution, extracting rules that are not necessarily expressed in the Charter.
Here are other points defended:
- constitutional jurisdiction gives life to rights and duties;
- the role of the Judiciary is to implement the Constitution to improve people’s lives on fundamental issues such as health, education, housing and protection of minorities;
- the idea of “predictability” in the Judiciary refers to isonomic decisions and not to “clairvoyance”;
- the acceleration of the use of technologies implies the need for greater regulation;
- climate change makes precaution essential; It is
- Political extremism and ultra-individualism create more demands on the Constitutional Jurisdiction system when they hinder the decision-making process in politics.
Read the full summary made by Dino:
“In the various lectures I have given in this first semester, I have mainly defended the following points of view:
“Thesis 1: Constitutional jurisdiction is essential for the protection of democracy, whether in the face of attempts to break it through the use of violence, or in the face of “subtle” anti-democratic attacks (abusive constitutionalism).
“Thesis 2: The role of constitutional jurisdiction consists of giving life to catalogs of rights and duties. A contrario sensu, without constitutional jurisdiction, rights and duties “die”.
“Thesis 3: The Legislative and Executive branches have representative political legitimacy and constitutional jurisdiction has legal-normative legitimacy. Modern democracies are based both on the linkage of Constitutions to fundamental rights and on the protection of fundamental rights by Constitutional Courts.
“Thesis 4: The role of the Judiciary – and in particular of the Constitutional Courts – is to implement the Constitution to help improve people’s lives on fundamental issues such as: a) health (e.g., decisions on the pandemic); b) education (e.g., case law on guaranteeing places in daycare and preschool); c) housing (e.g., decision on correcting the FGTS balance, preserving its social function); d) protection of minorities, achieving practical agreement between fundamental rights. We must remember that attention to “particularisms” cannot deny “universalism” (historically based on strong ideas, such as progress and social justice).
“Thesis 5: The debate on constitutional jurisdiction refers to the dichotomy of substantialism versus proceduralism, in which there is no exclusive relationship, but rather a complementary one:
“I – Substantialism – protection of an objective order of values in the face of occasional majorities;
“II – Proceduralism – in the absence of ethical consensus, the role of the Constitutional Courts is to protect the procedure, through which the Law is formed with legitimacy.
“Thesis 6: The identification of the possibilities and limits of constitutional jurisdiction requires an adequate understanding of the relationship between “judicial activism” and “self-restraint”. Such a binomial has existed since always and forever. There is no identity between “good” and activism, or “evil” and self-restraint (and vice versa).
“Thesis 7: It is necessary to understand the real meaning of “predictability”. A predictable Judiciary does not mean that it is known in advance how it will decide, in any circumstance or subject. Therefore, it is not equivalent to “clairvoyance”. The idea of predictability is associated with the expectation of isonomic decisions, according to the precedent system. Such a system indicates that the STF must decide “less” in order to decide “more” and better. This implies the prospect of reviewing interpretations on the admissibility of the Constitutional Complaint and on the criminal jurisdiction of the STF, among other examples.
“Thesis 8: The acceleration of the use of technologies in economic and social processes implies the need for greater regulation, with greater speed. Self-regulation, although useful, is not enough to prevent abuses and ensure the imposition of sanctions against illegalities. “Power is abusive by nature”: this postulate applies to private powers. And we must remember the deleterious force of “technodeterminism”.
“Thesis 9: Climate change leads to increased imponderability in legal relations, with very serious consequences. The recent case of Rio Grande do Sul is exemplary. This increases the need for procedures based on the precautionary principle (risk aversion), with strong action by the Public Authorities.
“Thesis 10: Ultra-individualism and political extremism, by hindering the decision-making process in instances of political representation, generate even more demands for the Constitutional Jurisdiction system. The “judicialization of politics” will continue as a strong trend of our time. The balance between Powers is not static, as it depends on the general dynamics of Politics, markets and civil society. Greater activism by the Judiciary is strongly associated with demands from parties, state governments, companies, etc.)”
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