THE (RE)DEMOCRATISATION JURISPRUDENCE

OF THE SUPREMO TRIBUNAL FEDERAL:1988-2003

Observatório do Supremo Tribunal Federal

Sociedade Brasileira de Direito Público

5 August 2013

Tom Gerald DalyUniversity of EdinburghT.G.Daly@sms.ed.ac.uk

ThesisInteraction

between

Apex constitutional-review courts(i.e. supreme courts and constitutional

courts)&

International human rights courts In

‘Third wave’ democracies (1974-2000)

Political science literature3 temporal phases

Transition to democracy Consolidation of democracy

Post-consolidation

DemocratisationBRAZIL

What does it consist of?

The most important decisions relating to democratisation and the construction of a democratic constitutional order

– primarily ‘consolidation’ phase & Decisions in which judges engage with the

democratisation process and articulate

normative positions concerning

democratisation and democracy

Democratisation Jurisprudence

1 Democratisation theory – definition

of ‘consolidation’

“[A consolidated democracy is a regime which] allows for the free formulation of political preferences, through the use of basic freedoms or associations, information and communication, for the purpose of free competition between leaders to validate at regular intervals by non-violent means their claims to rule…without excluding any effective political office from that competition or prohibiting members of the political community from expressing their preference.”

C Schneider, Consolidation of Democracy: Comparing Europe and Latin America (Routledge, 2008) p.10.

Clues (1)

Democratisation Data Set: 12 criteria (i)No significant political party advocates changes in the existing constitution; (ii)Regular elections are held and their outcomes are respected by those in positions

of public authority and major opposition parties; (iii)The elections have been free and fair; (iv)No significant parties or groups reject previous electoral conditions; (v)Electoral volatility has diminished significantly; (vi)Elected officials and representatives are not constrained in their behaviour by

non-elected veto groups within the country; (vii)A first rotation-in-power or significant shift in alliances of parties in power

has occurred within the scope of the rules already established; (viii)A second rotation-in-power or significant shift in alliances of parties in

power has occurred within the scope of the rules already established; (ix)Agreement, formal and informal, has been reached on the rules governing the

formation of associations and their behaviour; (x)Executive format; (xi)Territorial division of competence; and (xii)Rules of ownership and access to mass media. (See Paper,

p.11, footnote 19)

Clues (1)

Electoral arrangements Separation of power disputes Core civil & political rights

(e.g. Freedom of speech, freedom of assembly)

(Economic management)

Clues (1)

Clues (2)2 Law & Political Science – core tasks of an apex constitutional-review court in a new democracy

1.Maintaining the coherence of the constitutional order2.Deciding power dispersal disputes (i.e. inter-branch

and centre-periphery)3.Fundamental rights protection4.Addressing transitional justice questions5.Addressing/eliminating authoritarian legislation from

the previous regime6.Addressing crises

1. Maintaining coherence of constitutional order

2. Deciding power dispersal disputes (i.e. inter-branch and centre-periphery)

3. Fundamental rights protection

1. Addressing transitional justice questions

2. Addressing/eliminating authoritarian legislation from the previous regime

3. [Articulating relationship between old and new constitution]

1. Addressing crises.2. [Deciding on the Court’s Role in the

Process]

Typology of DecisionsENTRENCHMENT

DISENTRENCHMEN

TROLE-

BUILDING

• Establishing criminality of activity in presidential provisional measures (ADI / 162) – 1989

• Reissuance of presidential provisional measures rejected by Congress (ADI / 293) – 1990

• Validity of laws enacted before the 1988 Constitution (ADI 2-1) – 1992

• Plebiscite regarding form and system of government (ADI / 829,830) – 1993

• Regulation of free electoral advertising (ADI / 956, 958, 966) – 1994

• Hierarchy of constitutional provisions and non-amendable clauses (ADI 815) – 1996

• STF’s Jurisdiction to judge relevance and urgency of presidential provisional measures (ADI / 1397, 1647, 1753) – 1998

• Freedom of the Press (ADI / 869) – 1999

• Freedom of assembly (ADI / MC - 1969) – 1999

• Suspension of pensions reform law (ADI / ) – 1999

(Numbers 2, 3, 5, 7, 8, 10, 12, 13, 14 in the circulated paper)

Democratisation Jurisprudence - STF

Consolidation Phase: 1988-2003

• Suggestions regarding the draft list of decisions

• Further reading in the Portuguese language

• Useful databases

THANK YOU!T.G.Daly@sms.ed.ac.uk

Feedback