Judicial Activism
Article on the limits of judicial activism in the action of the public administration, O Estado de S. Paulo, 2020.
Translated from the original.
It is time to reflect more on the limits of judicial action involving the public administration
As Professor Luís Roberto Barroso noted, before taking his seat as a Justice of the Federal Supreme Court (STF), “the idea of judicial activism is associated with a broader and more intense participation of the Judiciary in realizing constitutional values and purposes, with greater interference in the sphere of action of the other two Branches. The activist stance manifests itself through different conduct, which includes: 1) the direct application of the Constitution to situations not expressly contemplated in its text and independently of any statement by the ordinary legislator; 2) the declaration of unconstitutionality of normative acts issued by the legislator, based on criteria less strict than those of patent and flagrant violation of the Constitution; 3) the imposition of conduct or abstentions on the public authorities, notably in matters of public policy” (Judicialization, Judicial Activism and Democratic Legitimacy).
Activism has multiple negative effects on the other Branches of the Republic, since it violates the separation among them and leads to the weakening of other Branches for the benefit of the enlargement of the Judiciary and of the institutions inherent to it, such as the Public Prosecution Service.
Barroso said, in this context, that “the importance of the Constitution – and of the Judiciary as its supreme interpreter – cannot, of course, suppress politics, majority rule, or the role of the Legislature. The Constitution cannot be ubiquitous. Observing constitutional values and purposes, it is for the law, voted by Parliament and sanctioned by the president, to make the choices among the different alternative visions that characterize pluralistic societies. For that reason, the STF must be deferential to the deliberations of Congress. (…) They (judges and courts) act legitimately only when they are able to rationally justify their decisions, on the basis of the Constitution.” And he concludes: “In sum: the Judiciary almost always can, but not always should, interfere. Having a careful assessment of one's own institutional capacity and choosing not to exercise power, in spontaneous self-restraint, more often elevates than diminishes.”
What has been seen in Brazil, however, is a Judiciary increasingly inclined to invade the merits of administrative acts, through the control of public administration in popular actions or public civil actions, including in the field of administrative improbity and the monitoring of the environmental agenda. Under the pretext of applying the principles that govern public administration, or broad categories such as misuse of purpose or abuse of power, the Judiciary substitutes the will of the Executive and legal commands with its own wishes, often ignoring the limits of reasonableness. After acknowledging that judicial activism is a striking feature of the Brazilian legal landscape, Luís Roberto Barroso warned, in 2008, that “the risks of judicialization and, above all, of activism involve democratic legitimacy, the politicization of justice and the Judiciary's lack of institutional capacity to decide certain matters.”
It happens that, at times, the semantic ambiguity of laws, indeterminate legal concepts or the legislator's silence open room for these arbitrary invasions by the Judiciary and the Public Prosecution Service into the terrain of the other Branches. Activism has long been generating dissatisfaction within the Executive throughout Brazil, in light of the profusion of arbitrary improbity actions against heads of municipal Executives, political agents and businesspeople, not to mention the billion-dollar and irresponsible industry of popular actions. More recently, there is a harsh clash at the federal level, with undue interference by the Judiciary in the Executive, with improper attempts by judges to control administrators' discretionary spaces. It is time to reflect more deeply on the limits of judicial action involving public administration.
*LAWYER, FORMER AGU MINISTER