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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Supreme Federal Tribunal of Brazil (Supremo Tribunal Federal)

Brazil [br]

André Nunes Chaib, Gilmar Ferreira Mendes

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 14 December 2018

Subject(s):
Constitutions and international law — Supraconstitutional authority — Powers and jurisdiction of constitutional courts/supreme courts — Types of constitutional courts/supreme courts

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  The Supreme Federal Tribunal of Brazil (‘STF’) is the highest institution of the Brazilian judiciary. It functions both as the apex court in the judicial system and as a constitutional court. In principle, the primary function of the STF is to safeguard the Constitution (Constitution of the Federative Republic of Brazil: 5 October 1988, Title IV, Chapter III, Section II, Art. 102 (Braz)). This, however, does not prevent it from dealing with questions that are not directly touching upon a violation of a constitutional rule or principle. The STF has a variety of powers beyond that of a typical constitutional court, including, for example, having original jurisdiction to hear and decide cases regarding political crimes, ‘criminal revisions’ (criminal trials de novo), jurisdictional conflicts between different tribunals and conflicts between entities of the federation (federal union, federal states, municipalities, etc.).

2.  The 1988 Constitution sets out the organization and functions of the STF in articles 101–103A. These articles are further elaborated on and complemented by the STF’s internal regulations and other ordinary acts. Eleven judges, who are called ‘Ministers’ of the STF, compose the Tribunal. The President of the Republic selects the Ministers and presents her choice to the Senate, which then decides whether to approve or reject the candidate. If the Senate gives its approval, the President officially appoints her nominee as a Minister of the STF.

3.  Throughout the history of Brazil, the STF has had different functions and has played different roles in shaping the Brazilian legal system. Most recently, it has attracted much attention due to several very impactful cases with which it has dealt, such as those concerning abortion of anencephalic foetus and homosexual civil unions (same-sex marriage / registered partnership). Considering the variety of functions and cases that the STF has dealt with since its establishment, we shall first briefly describe how this institution has, over more than a century, developed into what it is today, before elaborating on its current features.

B.  History of the Supreme Federal Tribunal

4.  Since its creation as the Supreme Tribunal of Justice, in 1824, the STF has gone through many changes over the Brazilian history and has played a significant role in the consolidation of the Brazilian constitutional mind-set. One important example is the ‘Brazilian Doctrine of Habeas Corpus’ (habeas corpus), which has not only given rise to strong debates about the limits of this instrument, but has also served as the basis for a new writ, the ‘Writ of Security’. The following paragraphs will describe the shifting status of the STF in each of the Brazilian Constitutions and highlight the changes it has gone through until the Constitution of 1988. This will also serve to illustrate how the STF has contributed to the development of the Brazilian constitutional doctrine over time.

1.  The 1824 Constitution

5.  The first Brazilian Constitution—known also as the ‘Imperial Constitution’—(Political Constitution of the Brazilian Empire: March 1894 (Braz)), enacted immediately following Brazil’s independence from Portugal in 1822, did not provide for a Supreme Federal Tribunal. Instead, it envisaged the creation of a Supreme Court of Justice (Art. 163, 1824 Constitution), to be established at the apex of the judicial system but with no specific powers to decide on constitutional matters. Subsequently, on 18 September 1829, a law was enacted giving effect to Art. 163 (Act of 18 September 1828 (Braz)); it created a Supreme Court composed of 17 judges of the judiciary, chosen according to seniority (Art. 1, Act of 18 September 1828), from whom the Emperor appointed the President (Art. 2, Act of 18 September 1828). The Supreme Court of Justice’s functions were set out in Art. 164 of the 1824 Constitution and in Art. 5 of the 1828 Act. In summary, the Court was responsible for dealing with review appeals (recursos de revista), jurisdictional conflicts and criminal offenses of certain high-level public officials. The powers of the Supreme Court of Justice were later further extended; it was authorized to render decisions with erga omnes effects, binding lower courts, when interpreting and reviewing civil, commercial and criminal laws (Art. 2, Decree No 2.684: 23 October 1875 (Braz); Art. 2, Decree No 6.142: 23 October 1875 (Braz)). This last power, however, was never exercised by the Supreme Court of Justice.

2.  The 1891 Constitution

6.  Consequent to the demise of the Brazilian Empire, the Supreme Court of Justice was abolished and replaced by a Supreme Federal Tribunal. In addition to the functions attributed to the Supreme Court of Justice, the newly-established STF was established as guardian of the Constitution and of the federal order (Ferreira Mendes and Gonet Branco 956). In 1890, the Provisional Government enacted a decree to reorganize the entire federal justice system, including the STF and its functions (Decree No 848: 11 October 1890 (Braz)); it was confirmed in the 1891 Constitution (Constitution of the Republic of the United States of Brazil: 24 February 1891 (Braz)). Pursuant to the Decree and the Constitution, the STF was to be composed of fifteen judges of ‘notable knowledge and reputation’ (Art. 113, 1891 Constitution; Art. 5, Decree 848) who should also be qualified to serve in the Senate. The Ministers were initially appointed by the President of the Republic and later approved by the Senate. Compared to the Supreme Tribunal of Justice, the STF’s powers and functions were significantly extended with the 1891 Constitution (Art. 59, 1891 Constitution; Art. 9, Decree 848); it acquired a ‘constitutional function’, whereby parties could challenge the validity of state acts under the Constitution or claim a constitutional violation by any judicial decision (Art. 59, 3, para. 1, a and b, 1891 Constitution; Art. 9 para. único, b, Decree 848). This effectively meant incorporating a model of judicial review that had been practiced in the United States since the well-known Marbury v Madison Case (US) (1803).

3.  The 1934 Constitution

7.  After the 1930 Revolution, a Provisional Government (Governo Provisório) enacted a decree which reorganized the STF’s structure (Art. 1, Decree 19.656: 3 February 1931 (Braz)), reducing the number of Ministers from 15 to eleven and dividing the STF into two chambers. These changes were confirmed in Art. 73 of the 1934 Constitution (Constitution of the Republic of the United States of Brazil: 18 July 1934 (Braz)), which nevertheless recognised the possibility of increasing the number of Ministers to 16. This article also renamed the STF as the Supreme Court (Corte Suprema). The procedure for the selection of Ministers remained largely unchanged, with a few minor details added, such as the requirement that Ministers have ‘notable legal knowledge’ and be older than 35 years and younger than 65 (Art. 74, 1934 Constitution). Otherwise, appointment to the STF was to be made by the President of the Republic following the Senate’s approval. In general, the Supreme Court’s functions remained the same as under the previous Constitution (Art. 76, 1934 Constitution), apart from two important innovations. Firstly, the 1934 Constitution introduced in Art. 113, n. 33, a new writ, equivalent to the writ of Mandamus (mandado de segurança), intended to protect individuals from the violation of any ‘liquid and certain right not protected by habeas corpus’. Secondly, significant changes were made with respect to judicial review. According to Art. 91 of the 1934 Constitution, any act declared unconstitutional by the Supreme Court could be suspended, while the Senate was responsible for calling for such a suspension. Another important innovation was the introduction in Art. 7, I, a) and h) of the ‘representation for intervention’ (representação interventiva). This provided that the Supreme Court, having been approached by the Attorney General, could assess the constitutionality of acts declaring federal interventions. This instrument was, however, never used (Ferreira Mendes and Gonet Branco 959; Ferreira Mendes 1996 20).

4.  The 1937 Constitution

8.  In November 1937 a new constitutional text was prepared. While this Constitution was supposed to be approved in a plebiscite, it never occurred; the regime of the ‘New State’ (Regime do Estado Novo) was instead installed by military force with the political support of President Getúlio Vargas. With respect to the STF, it introduced certain changes concerning the appointment of Ministers. According to Art. 38, para. 1 of the 1937 Constitution, the legislative body would be composed of two houses: the Chamber of Deputies (Câmara dos Deputados) and the Federal Council (Conselho Federal). The latter would take the place of the Senate under the previous Constitutions in approving the appointment of Ministers to the (identically entitled) Supreme Federal Tribunal. Additionally, the President of the Republic reclaimed her power to choose the President and Vice-President of the STF (Art. 1, Decree-Act 2.770: 11 November 1940 (Braz)). The number of Ministers remained the same (eleven) and could be increased to 16 if the Tribunal itself decided this was necessary (Art. 97, para. único, 1937 Constitution). Ministers were now required to be between 35 and 58 years, and to have ‘notable legal knowledge and untouched reputation’ (Art. 98, 1937 Constitution).

5.  The 1946 Constitution

9.  The 1946 Constitution (Constitution of the United States of Brazil: 18 September 1946 (Braz)) introduced interesting changes regarding the STF’s work and set out the basis for the consolidation of the abstract model of judicial review. Structurally, the STF did not go through any significant changes. It retained a minimum of eleven Ministers, a number which could be increased to 16 by means of an act, should the Tribunal find it necessary (Art. 98, 1946 Constitution). The criteria for the appointment of Ministers also remained the same, per the Constitutions of 1937 and 1934 (Art. 99, 1946 Constitution). In addition to its traditional functions, the STF was granted the power to review extraordinary appeals of decisions that allegedly violated a constitutional precept or federal law. A particular novelty of this new constitutional order was the widespread use of a direct action of unconstitutionality. This instrument, entitled ‘representation of unconstitutionality’ (representação de inconstitucionalidade), was similar to that included in the 1934 Constitution. It differed, however, from the ’representation of intervention’ (representação de intervenção), established in Art. 8 of the 1946 Constitution, which authorized the Attorney General to challenge the constitutionality of acts declaring federal interventions.

6.  The 1967 Constitution (and Constitutional Amendment No 1/1969)

10.  The 1967 Constitution (Constitution of the Federative Republic of Brazil: January 1967 (Braz)) gave constitutional support to the dictatorship installed in April 1964 after a coup d’état led by Generals of the Armed Forces. It continued the changes introduced by constitutional amendment 16/65 (Constitutional Amendment 16/65: November 1965 (Braz)), which established, through the ‘representation of unconstitutionality’ (representação de inconstitucionalidade) the abstract and direct control of constitutionality of any act allegedly violating the Constitution or relating to federal intervention (Art. 114, 1967 Constitution). Nevertheless, even before its enactment, Institutional Act No 2 (Institutional Act No 2: 27 October 1965 (Braz)) had already introduced changes in the STF, increasing the number of Ministers from eleven to 16, and suspending judges’ privileges and judicial guarantees. According to the 1967 Constitution, the STF would be composed of 16 Ministers (Art. 113, 1967 Constitution). It also preserved the Tribunal’s powers and functions, as set out in the previous Constitutions. However, in 1968, Institutional Act No 5: 13 December 1968 (Braz) reduced the power of STF’s Ministers. Thereafter, the enactment of Institutional Act No 6: 1 February 1969 (Braz) reduced the number of STF Ministers from 16 to eleven and forced Ministers Evandro Lins e Silva, Victor Nunes Leal and Hermes Lima into retirement. While Constitutional Amendment No 1 of 1969: 17 October 1969 (Braz) conserved the STF structure and powers, by that time, its political role had already been significantly weakened. In 1978, Institutional Act No 5 was repealed and the guarantees of the judiciary were re-established, thus paving the way for Brazil’s re-democratization.

C.  The Supreme Federal Tribunal in the 1988 Constitution

11.  The current rules governing the structure, functions and activities of the STF are found in Arts 101–103 of the 1988 Federal Constitution and in the Tribunal’s Internal Regulations. The latter set out in detail the composition of the Tribunal (Arts 2–4), its competencies (Arts 5–14), the structure of its proceedings (Arts 54–112), how it should deal with a declaration of unconstitutionality of an act (Arts 169–187) and the instruments protecting constitutional guarantees (Arts 188–206). The internal regulations of the Tribunal are not formally considered to be equal to ordinary acts, but have the force of law in a material sense. Thus they bind not only the members of the Tribunal, but also external actors, including the Attorney General and lawyers.

12.  These two instruments are also further complimented by an act regulating the enactment of ‘súmulas’ by the STF (Act No 11.417: 19 December 2006 (Braz)) and an act regulating the ‘Direct Action of Unconstitutionality’ and the ‘Declaratory Action of Constitutionality’ (Act No 9868: 10 November 1999 (Braz)). The practice of the Tribunal itself has also contributed to the development of its own functions. This means that not all the rules governing the activities of the STF are necessarily set in one of the official normative instruments.

1.  Composition and Structure

(a)  Selection of Ministers

13.  Eleven Ministers compose the STF. The requirements for their appointment are all found in provisions of the 1988 Constitution (judges at constitutional courts / supreme courts; selection of judges at constitutional courts / supreme courts). Nominees for appointment must be native Brazilians (Art. 12, para. 3, IV) and enjoy their full political rights (Art. 14, para. 1, I). They must also be older than 35 years and younger than 65 years, and have an unblemished reputation and recognized legal knowledge (Art. 101). Whereas the first two requirements alongside the age restrictions set out in Art. 101 can be said to be ‘objective’, the latter two are not. They depend largely on the selection of the candidate made by the President, and the assessment made by the Senate of these qualifications does not necessarily test the nominees’ legal knowledge but rather reflects very much the political character of the appointment.

14.  The procedure for the appointment of Ministers to the STF is also set out in Art. 101, para. único. According to this procedure, the President of the Republic will choose a candidate for appointment to the STF and submit her choice to the Senate. Following the nomination, the President’s nominee appears before the Commission of Constitution, Justice and Citizenship of the senate (Comissão de Constituição, Justiça e Cidadania) and is questioned by its members. Afterwards, the Commission provides the members of the Senate a report suggesting the approval or rejection of the President’s candidate (Art. 101, II, i), Internal Regulations of the Senate), following which if an absolute majority of the members of the Senate present at the session votes in favour of the approval (Art. 101, 1988 Constitution) the President’s candidate will be appointed. Interestingly, the requirement that the nominee appear before members of the Senate is a novelty brought by the 1988 Constitution, and is based on the American model. This was never the case under the previous Brazilian Constitutions.

15.  Furthermore, in the past, individuals could be appointed as Ministers in the STF without having formal legal training. For instance, in 1893 President Floriano Peixoto chose a medical doctor, Candido Barata Ribeiro, to occupy a vacant post left by Barão de Sobral, who had recently passed away. The Constitutional requirement at that time was only that the nominees have ‘notable knowledge’, not specifying that a Minister in the STF (who at that time was called ‘Judge of the Supreme Federal Tribunal’) had to be a legal expert. According to the 1891 Constitution, the President would choose the Judge and would subsequently submit his choice to the scrutiny of the Senate. Once the Senate approved the President’s nominee, he or she would be appointed as a Judge of the STF. In Candido Ribeiro’s case, he took office in November 1893 but the Senate rejected his appointment after a report from the Senate’s Justice and Diplomacy Commission declared that ‘notable knowledge’ in fact meant ‘notable legal knowledge’.

(b)  Composition of Chambers

16.  The STF is structurally divided into four organs: two Chambers, the Plenary and the President (Art. 3, Internal Regulations of the Supreme Federal Tribunal). The Ministers of the Tribunal are divided between the two chambers—called the Turmas—five Ministers in each Chamber. Within these Chambers, the longest serving Minister acts as the President of the Chamber for a period of one year, without the possibility of renewal of his or her term, until all the members of the Chamber have acted as President (Art. 4, para. 1, Internal Regulations of the STF; terms of office of judges).

17.  Functionally, the Chambers serve the purpose of properly dividing the number of cases between the Ministers so as to assure, to the extent possible, that certain decisions are made collegially, but without needing to go to the Plenary. The particular competences of the Chambers are not set out in the 1988 Constitution, but rather in Art. 9 of the Tribunal’s Internal Regulations. These include, amongst others, the authority to decide appeals of habeas corpus decisions of lower tribunals or writs of security against acts of the Tribunal of Accounts of the Union or the Attorney General (Art. 9, a), b), Internal Regulations of the STF). These competences complement those of the Plenary and the other organs of the STF.

(c)  The Plenary

18.  The Plenary is composed of all Ministers of the STF. It holds a number of particular functions, defined in detail in Arts 5 to 8 of the Internal Regulations of the STF, including electing the President and the Vice-President of the Tribunal. Most importantly, it is the organ responsible for deciding the most important cases coming before the Tribunal. For instance, the Plenary is responsible for deciding cases of direct actions of unconstitutionality, direct actions of unconstitutionality by omission, declaratory actions of constitutionality and actions of violation of a fundamental precept (Art. 5, VII, Internal Regulations of the STF). Other powers include, for example, trying the President of the Republic for common crimes (Art. 5, I, Internal Regulations of the STF) and cases of conflict between the federal union, the states and the federal districts (Art. 5, IV, Internal Regulations of the STF).

19.  Cases brought before the Plenary are decided by a majority vote. A Minister-rapporteur (Ministro relator) presents his vote, followed by his justifications (Art. 96 of the 1988 Constitution states that all judicial decisions must be accompanied by reasons) to the other Ministers, each of whom will, after consulting the proceedings, form their own opinion on the case. They will then proceed to a vote, coordinated by the President of the Tribunal, in which they will either support or reject the Minister-rapporteur’s decision (partially or fully). In principle, the President of the STF does not vote in the cases decided by the Plenary. However, the two cases in which the President does vote are those where there is a tie between the Ministers and those that concern constitutional matters, including direct actions of unconstitutionality, declaratory actions of constitutionality, actions alleging violation of a fundamental precept and extraordinary appeals.

(d)  The President of the Supreme Federal Tribunal

20.  Alongside the Chambers and the Plenary, the President is a crucial organ of the STF. The President of the Tribunal performs fundamental functions, which are defined in detail in Art. 13 of the Internal Regulations of the Tribunal and include both judicial and administrative functions. For example, he or she is responsible for coordinating the work of the Plenary and representing the Tribunal before the other branches of government and public authorities (Art. 13, II and III, Internal Regulations of the STF). The President and the Vice-President are elected by the Plenary for a term of two years, which cannot be renewed for an immediate subsequent period (Art. 96, I, 1988 Constitution; Art. 12, Internal Regulations of the STF). Moreover, as already mentioned, in cases of a tie of votes in the Plenary, the President provides the deciding vote on whether the Tribunal will follow the Minister-rapporteur’s decision or not. Moreover, the President also has the function of safeguarding the judicial privileges and prerogatives of the STF (Art. 13, I, Internal Regulations of the STF). Ultimately, the President’s activities are intended to guarantee that the proceedings before the STF are conducted in a proper manner.

2.  Jurisdiction and Proceedings before the Supreme Federal Tribunal

21.  There are three types of proceedings before the STF: those falling within the original jurisdiction of the Tribunal (Art. 102, I, 1988 Constitution), those that come before the Tribunal in the form of an ordinary appeal (Art. 102, II, 1988 Constitution) and those that come before it in the form of an extraordinary appeal (Art. 102, III, 1988 Constitution). The proceedings and instruments used by the STF have changed throughout history and were consolidated by the 1988 Constitution. The most interesting developments in this regard concern the instruments used in the abstract model of judicial review—which became predominant in the Brazilian legal system—and the creation of a means to guarantee both the uniformity and enforceability of decisions of the STF in constitutional matters through the introduction of the súmula vinculante.

(a)  Original Jurisdiction of the STF

22.  The STF’s original jurisdiction is set out in Art. 102, I of the 1988 Constitution and includes, amongst others, trying public agents with functional immunities. For example, as a result of parliamentary immunity, only the STF can try members of Congress for common criminal offenses and the President of the Republic (Art. 102, I, a, 1988 Constitution; immunity of legislative body members; immunity of heads of state under constitutional law). Furthermore, the STF also has original jurisdiction to try cases where there is a conflict between entities of the federation (federal union, federal states, municipalities, etc.).

23.  Some of the STF’s functions are further detailed in specific acts, including those dealing with the instruments used in judicial review proceedings, such as Act No 9.868 on direct actions of unconstitutionality and declaratory actions of constitutionality of federal laws or normative acts, and Act No 9.882 on actions of violation of fundamental precepts. These actions are specific instruments introduced by the 1988 Constitution with a view to consolidating the abstract model of judicial review. A direct action of unconstitutionality has the purpose of challenging an act that allegedly violates a provision or principle of the Constitution (Art. 3, Act No 9.868). This action can be brought before the STF by those actors listed in Art. 103 of the Constitution and Art. 2 of Act No 9.868. Direct actions of unconstitutionality can also be brought when there is an unconstitutional omission—complete or partial—by a public institution or agent in fulfilling a constitutional duty to legislate or to take administrative measures on a particular matter (Art. 12-B, Act No 9.868). In this case, this action is known as the direct action of unconstitutionality by omission. The STF’s decisions on the constitutionality or unconstitutionality of acts have erga omnes effects and bind the entire judiciary, whether federal, state or municipal, as well as the public administration (Art. 102, para. 2). Another instrument that can be brought before the STF as part of its original jurisdiction is the action alleging violation of a fundamental precept (Art. 102, para. 1, 1988 Constitution). This action is further regulated by Act 9.882: 3 December 1999 (Braz). The objective of this action is to avoid or rectify damage caused by the violation of a fundamental (constitutional) precept resulting from an act of a public authority (Art. 1, Act 9.882). It can also be brought before the Tribunal in case of controversy over whether a legal norm enacted before the promulgation of the Constitution violates its provisions and principles (Art. 1, I, Act 9.882). Together along with the extraordinary appeal these actions constitute the core of the constitutional jurisdiction of the STF.

(b)  Ordinary Appeals

24.  Ordinary appeals are those that do not bring before the STF a question directly relating to constitutional matters. They are typical instruments that make use of the STF’s function as a court of last resort and can only be brought before it in two cases expressly set out in Art. 102, II of the 1988 Constitution. The first is cases where a habeas corpus, a writ of security, a habeas data or a mandate of injunction were denied in a single instance by superior tribunals such as, for example, the Superior Tribunal of Justice. The second is cases of political crimes decided by the federal justice (that is, not by state or municipal tribunal) in the first instance. In this sense, ordinary appeals differ fundamentally from extraordinary appeals, which deal essentially with constitutional questions.

(c)  Extraordinary Appeals

25.  The extraordinary appeal is a procedural instrument aimed at verifying whether there has been a violation of a constitutional rule or principle by a prior judicial decision. This type of appeal can only be used when an ordinary appeal is no longer possible. Unlike the previous Constitution, in which the extraordinary appeal also served as a means to challenge judicial decisions violating federal law, in the 1988 Constitution the extraordinary appeal has the sole objective of protecting the constitutional order. Thus, the cases in which an extraordinary appeal can be brought before the STF are limited to the following: when a judicial decision 1) ‘is contrary to a provision of the Constitution’ (Art. 102, III, a); 2) ‘declares a treaty or a federal law unconstitutional’ (Art. 102, III, b); 3) ‘upholds a law or act of local government challenged for violating the Constitution’ (Art. 102, III, c); 4) ‘upholds a local law challenged as contrary to federal law’ (Art. 102, III, d).

26.  The conditions under which the extraordinary appeal can be brought before the STF are laid down in Act No 8.038: 28 May 1990 (Braz) and in Act No 9.756: 17 December 1998 (Braz), which reforms part of the Code of Civil Procedure, as well as in Chapter V of the Internal Regulations of the STF. In general, the extraordinary appeal can be brought before the STF by any party arguing that a judicial decision has not only affected its interest, but has also clearly violated provisions of the Constitution. Nevertheless, Art. 102 para. 3, the 1988 Constitution establishes as a condition of admissibility of extraordinary appeals that the party filing the appeal demonstrate the general repercussions of the constitutional questions at issue in the case. The Tribunal may only reject the extraordinary appeal in this case, if, on this ground, two thirds of its members find it inadmissible.

27.  Another important aspect of the extraordinary appeal is that it aims to create uniformity in the constitutional matters brought before the STF. The extraordinary appeal is thus no longer a simple mechanism to protect parties’ interests, but rather becomes an effective tool to objectively guarantee the constitutional order. For example, the STF has decided that in cases where, by responding to an extraordinary appeal, the Tribunal declared a particular act constitutional, direct actions of unconstitutionality aiming at questioning that same Act’s constitutionality were inadmissible (ADI 4071 AgR/DF (2009) (Braz), Minister-Rapporteur Menezes Direito). This evidences how important the extraordinary appeals are in consolidating the way the STF interprets and gives effect to the Constitution.

(d)  The Súmula Vinculante

28.  In Brazil, judicial decisions are often cited in actions and petitions, but do not constitute formal sources of law in the same way precedents do in common law countries (precedent). Nevertheless, guaranteeing a certain level of normative force to judicial decisions may strengthen the legal system by reinforcing legal predictability. This was the rationale for introducing the súmulas vinculantes in the Brazilian legal system, which are edicts of the STF promulgating the understanding of the Tribunal on a particular constitutional matter.

29.  The súmulas were introduced by Constitutional Amendment No 45: 30 December 2004 (Braz)). Nowadays, they are provided in Art. 103-A of the 1988 Constitution and regulated by Act No 11.417: 19 December 2006 (Braz), detailing the process of editing, revising and cancelling the súmulas. The main objective of the súmulas is to serve as an instrument of self-discipline of the STF (Ferreira Mendes and Gonet Branco 977). Normally, the STF must conform its decisions to what is stated in a súmula. If it decides otherwise, it must expressly indicate that it is deciding against a súmula and must provide the reasons for such a decision. This means that parties can also claim before the Tribunal against This means that parties can therefore bring a ‘reclamation of non-observance of judicial decision’ (reclamação por descumprimento de decisão judicial) against the non-observance of a súmula in a judicial decision or act of the public administration (Art. 103-A, para. 3, 1988 Constitution; Art. 7, Act No 11.417).

30.  The enactment, revision and cancellation of súmulas are addressed in Art. 103-A of the 1988 Constitution. Two-thirds of the STF members must agree, after having decided on a similar constitutional matter repeatedly, to edit and enact a súmula (Art. 103-A, 1988 Constitution; Art. 2, para. 3, Act No 11.417). The súmula vinculante aims to guarantee the ‘validity, interpretation and efficacy of determined norms’, which were the object of particular constitutional controversies among different judicial bodies and public authorities and about which there have been repeated decisions by the Tribunal (Art. 103-A, para. 1; Art. 2, para. 1, Act No 11.417). Súmulas can be edited either ex officio or by demand. Those authorized to bring a claim to the STF to edit, review or cancel a súmula are the same as those authorized to bring a direct action of unconstitutionality before the Tribunal (Art. 103-A, para. 2; Art. 3, Act No 11.417). One important requirement for editing súmulas is the existence of recurring decisions on the same constitutional question. The 1988 Constitution thus prohibits the editing of a súmula based on a sole decision of the Tribunal. Moreover, in order to ensure the normative force of the súmulas they need to be duly made public through the Official Journal of the Federal Union (Diário Oficial da União). Once a súmula is edited it should have immediate efficacy. However, by a decision of at least two thirds of its members, the STF can, however, restrict the binding effects of a súmula or postpone the moment in which it will become effective (Art. 4, Act No 11.417).

31.  It is important to note, however, that súmulas do not bind the legislative branches at any level of the federation. Despite not being a perfect instrument, the súmulas significantly reduce issues of legal predictability with regards to constitutional matters.

D.  Major Tendencies in the Supreme Federal Tribunal’s Case Law

1.  Fundamental Rights

32.  The STF’s treatment of fundamental rights’ cases is rather progressive. Against the background of a very conservative Congress, the STF has been at the centre stage of many significant and important developments concerning, in particular, the rights of women to abort in certain conditions, scientific research (freedom of scientific research) and same-sex civil union. All of these issues are extremely controversial in Brazilian politics and in the lack of proper acts regulating these cases, the Tribunal has been put in a situation where it had to provide a rather decisive answer. Moreover, the STF has also taken a progressive stance with respect to social rights, in particular regarding the right to health and affirmative actions.

33.  One fundamental case was that regarding the possibility of abortion in circumstances where the foetus was anencephalic. In the Action of Violation of Fundamental Precept No 54 (ADPF 54 (12 April 2012) (Braz)) the STF was asked whether the abortion of anencephalic foetuses fell under the prohibition of abortion contained in the Criminal Code. The Tribunal decided that any interpretation that saw abortion in such circumstances as a criminal offence in accordance with the Criminal Code was unconstitutional.

34.  Another important case in matters of fundamental rights was the one concerning the constitutionality of research with stem-cell. In the Direct Action of Unconstitutionality 3510 (ADI 3510 (29 May 2010) (Braz)), the Attorney General argued that the provisions on the Biosafety Act (Act No 11.105: 24 March 2005 (Braz)) that allowed for stem-cell research were unconstitutional. The Tribunal decided, however, that the research with stem-cell did not violate the Constitution. There was, nevertheless, intense debate as to whether there should be a central institution supervising the way in which such research had to be conducted. Ultimately, the Tribunal decided that it was not necessary to include such condition in the decision.

35.  A landmark case of the Tribunal regarding fundamental rights dealt with the recognition of marriage for same-sex partners. This was initially brought up before the STF by the Governor of the State of Rio de Janeiro, as an Action of Violation of Fundamental Precept (Action of Violation of Fundamental Precept 132), but was later converted into a Direct Action of Unconstitutionality (ADI 4277 (4 May 2011) (Braz)) and it was decided as such. In this action, the Governor argued that there had been constant discrimination of same-sex partners by public services in the State (public service), which read the Act concerning the status of civil servants of the state and the benefits therein (Decree-Act No 220/75: 18 July 1975 (Braz)) as only applying to heterosexual couples. The Action required that the Act be interpreted in ‘conformity with the Constitution’ (conforme a Constituição). The Tribunal understood that in fact the Act could not be read as excluding same-sex couples from the benefits it contained, as it clearly violated fundamental rights of those the parties. The Tribunal also established that same-sex partners could have their relationships recognized as ‘stable unions’ (união estável), which is equal to marriage according to the Constitution, if the objective legal conditions were met. Moreover, it established that such a decision should have erga omnes effect and bound all public service in the whole country.

36.  The STF also dealt with important cases regarding social rights, amongst which two have set important precedents. The first one was brought before the Tribunal by the city of Porto Alegre in Extraordinary Appeal No 271286 (RE 271286 Agr-RS (12 September 2000) (Braz)). In this Action, the city argued it did not have to bear the costs for the anti-retroviral medications for those with AIDS. The Tribunal recognized a subjective public right to health of citizens and determined that the city was responsible, alongside with the State of Rio Grande do Sul, to bear the costs for such medication. It determined that it was the obligation of all entities of the Federation to guarantee that such right is materialized. A decisive case was that of the constitutionality of affirmative actions established by public universities (affirmative action). In the Extraordinary Appeal 597285 (RE 597285 (09 May 2012) (Braz)), a student who had failed the examination to enter the Federal University of Rio Grande do Sul (Universidade Federal do Rio Grande do Sul), argued that the affirmative action scheme set up by the university that reserved 30 per cent of the places in the university for African-Brazilian students and students coming from public schools constituted great injustice and was in violation of constitutional provisions. The Tribunal, however, saw no unconstitutionality in the affirmative action programme and declared that such programmes could be established autonomously by public universities in the country. This decision confirmed a previous position adopted by the Tribunal in an Action of Violation of Fundamental Precept introduced by the political party ‘Democrats’ (Democratas—DEM) in 2009 (ADPF 186 (26 April 2012) (Braz)). In this case, the party argued that the affirmative action programme established by the University of Brasilia (Universidade de Brasília), where it reserved places for African-Brazilian students, violated the principle of material equality provided for in the Constitution. The Tribunal understood that such a programme did not violate any provision of the Constitution. Rather the contrary, it confirmed the principle of material equality between individuals set out in the Constitution.

37.  Critics have argued that despite the acceptability of many of these decisions by the public, the STF has clearly engaged in a type of judicial activism that hinders the powers of the Congress and affects directly the separation of powers in Brazil. This has not, however, prevented the Tribunal from exercising powers and guaranteeing the protection of certain rights in the absence of proper executive or legislative regulation.

2.  Structural Issues (Federalism and Separation of Powers)

38.  Deciding on matters relative to the Brazilian federal structure (federalism) or on the competencies of powers in the Brazilian system stems directly from the constitutional attributions of the STF. Different cases on the topic of separation of powers and federalism have been brought before the STF, and the Tribunal has been instrumental in interpreting and setting in more precise terms not only the powers of each branch of government, but also the competencies of each entity of the federation. In this respect, four cases have been, maybe, most significant.

39.  In matters related to the separation of powers, the STF has also been very active. Recently the STF had to engage with the other branches of government. There is no novelty in the fact that as the highest institution in the Brazilian judiciary, the STF would be required to communicate with the highest institutions of the legislative and executive powers. This has been done through a variety of cases where actions of either the legislative or the executive have been challenged. The STF has acted in a way so as to guarantee that actions by either branch do not exceed the powers that the Constitution has granted them. In the direct action of unconstitutionality 4048 (ADI 4048 MC (14 May 2008) (Braz)) the STF declared that the provisional executive orders (medidas provisórias, Arts 84 and 62 of the 1988 Constitution; executive order) enacted by the executive branch were unconstitutional, given that the increase in budget that the government sought to create did not have an extraordinary character and therefore could not be done by means of a provisional measure (public finance). The STF can also decide on issues that arise between the executive and legislative branches. For instance, in a recent case (ADPF 378 ED (17 December 2015) (Braz)) the STF was asked to assess the constitutionality of changes made to the impeachment procedure by the legislative branch. These changes would create political tensions between the government and opposition parties, as the latter sought to create mechanisms to facilitate the initiation of an impeachment process against the President of the Republic. The STF, however, decided, by way of provisional measures, that the changes in the procedure were unacceptable as there were indications they would violate not only the Constitution but also legal predictability.

40.  A most interesting case concerning separation of powers is that brought up in Extraordinary Appeal No 592581 (RE 592581 (13 August 2015) (Braz)) and in the provisional measures required in the Action of Violation of Fundamental Precept 347 (ADPF 347 [Provisional Measures] (9 September 2015) (Braz)). In the former case, the Tribunal decided that the judiciary had the power to order the public administration to take sufficient measures to guarantee that the rights of prisoners were guaranteed in jails (prisons and prisoners). In particular in this case, the judiciary could order the executive branch to proceed with all necessary construction work and reforms necessary to assure a better situation to the prisoners in the public jails in the State of Rio Grande de Sul. In doing so, the STF recognized the existence of an ‘unconstitutional state of affairs’ (estado de coisas incostitucional) in public jails in the state of Rio Grande do Sul. This doctrine of ‘unconstitutional state of affairs’ was initially developed by the Colombian Constitutional Court in the case Sentencia de Unificación 559, in 1997 (Decision SU-559 of 1997 (6 November 1997) (Colom)). In the case of the Extraordinary Appeal, the STF understood that the lack of proper infrastructure in jails constituted a factual situation that was in clear violation of the fundamental rights of prisoners provided for in the Constitution. Therefore, the judiciary, in this particular occasion the STF, had the power to command the public administration to remedy such situation.

41.  This was also later confirmed by the decision of the STF in the provisional measures of the Action of Violation of Fundamental Precept 347, introduced by the Party Socialism and Freedom (Partido Socialismo e Liberdade—PSOL). In this action, the party sought to ask the STF to order the federal public administration to take measures to remedy the precarious situation of several public jails across the country. This meant effecting a control and change in the organization of the National Prison’s Fund budget (Fundo Penitenciário Nacional). Again, in its decision the STF argued that the in light of an unconstitutional state of affairs, the judiciary had the power to order the public administration to remedy such situations. In granting partially the provisional measures, the STF ultimately determined that judges should whenever possible establish alternative sentences to that of incarceration and to the Federal Union, that it should release the accumulated amount of funds gathered by the National Prison’s Fund in order to remedy the most urgent situations, noting that the Federal Union was not allowed to restrain its spending in this matter.

42.  Finally, in matters of federal conflict, the STF has understood that this mainly can be recognized as occurring whenever there is a patrimonial dispute in question. This is what was recognized in the Civil Action 684: 4 August 2005 (Braz), where the Tribunal understood that there was indeed a federal conflict between the entities of the federation in a matter in which the Minas Gerais Council of Medicine asked for a state decree opening a new course of Medicine be nullified, arguing that the state had no power to do so. The STF understood that only the Federal Union could create and recognize new university courses or faculties. In this particular case there was a clear question of which entity should bear the costs for the creation of such course. Another case where the STF noted that there had to be a patrimonial controversy in order to recognize a federal conflict was that of the Civil Action 251: 9 June 2006 (Braz), concerning the state of Sao Paulo and the Federal Union, more specifically its National Social Security Institute (Instituto Nacional de Seguridade Social—INSS) in a matter of inappropriate collection of contributions. This goes to show that the STF has to a large extent attempted with its case law not only to solve the controversies brought to it, but also to consolidate and refine its own powers.

3.  International Law

43.  The relationship between the STF and international law is complex and still in flux. Brazil has signed and ratified both the American Convention on Human Rights (1969) (‘ACHR’) recognizing the jurisdiction of the Inter-American Court of Human Rights (IACtHR) (Pact of San José) and the Rome Statute, recognizing the jurisdiction of the International Criminal Court. It has not yet submitted a declaration regarding the jurisdiction of the International Court of Justice, and thus it does not recognize the universal jurisdiction of the Court in cases to which Brazil is a party. In any event, Brazil retains the supremacy of its own Constitution and jurisdiction in a number of matters, even when these have been decided otherwise by international courts.

44.  In this respect, the STF’s case law with respect to international law matters is somehow controversial. For a long period of time, the Tribunal took a very dualistic approach, separating very clearly the Brazilian constitutional order from the international legal order. This is, for example, the case with Act No 6.683, the so-called Amnesty Act (Act No 6.683: 28 August 1979 (Braz)—Lei No 6.683, de 28 de Agosto de 1979). Together with Art. 4 of the Constitutional Amendment 26/85: 27 November 1985 (Braz), this Act conceded amnesty to all public servants belonging to the public administration (both direct or indirect administration), who had been punished by institutional or non-institutional ‘acts of exception’ (atos de exceção). Even though the IACtHR, in the Barrios case (Barrios Altos v Peru (Merits, Reparation, and Costs Judgment) IACtHR Series C No 75 (14 March 2001)), established that laws granting amnesties to individuals actively participating and supporting dictatorial regimes in Latin-America violated the ACHR, the STF decided that was legal under the new Constitution and should be given due efficacy (ADPF 153 (29 April 2010) (Braz)). In fact, Minister Eros Grau, in his decision, argued that enacting of the Amnesty Act was a precondition for a pacific transition from the dictatorial regime to democracy. Also, he argued that together with Constitutional Amendment 26/85 and the 1985, the Amnesty Act formed a bloc of constitutionality and therefore could not be supressed by international decisions or agreements. This, nevertheless, reflects to a large extent the dualist position of the STF in finding that its decision should, despite the ratification of the American Convention of Human Rights, have primacy over the IACtHR’s decision.

45.  Recently, however, some decisions of the Tribunal have pointed to a more internationalist position. For instance, with respect to the possibility of civil arrest of ‘fiduciary agents’ who fail to appropriately manage or care for a good attributed to him by a court (depositário infiel), the STF took a different approach. The Brazilian Constitution states in its Art. 5, LXVII that fiduciary agents may be subject to civil arrest in cases where there is damage to the good under care or when the good is ruined altogether. This is in clear violation of the American Convention on Human Rights which states clearly that ‘No one shall be detained for debt’ (Art. 7, para. 7 ACHR) and of the International Covenant on Civil and Political Rights (1966) (‘ICCPR’), which also states that ‘No one shall be imprisoned merely on the grounds of the inability to fulfil a contractual obligation’ (Art. 11 ICCPR), both of which Brazil is a party. Initially the Tribunal understood that the civil arrest in this case was actually legal (Súmula 619: STF (Braz)). Nevertheless, in 2008, the STF decided in two different cases (RE 466343 (3 December 2008) (Braz) and HC 95967 MS (11 November 2008) (Braz)), that since Brazil was a party to both treaties, there was no reason to give effect to the constitutional provision allowing for such arrest. This also led the Tribunal to abrogate Súmula 619 and enact a new one specifically directed at prohibiting the arrest of fiduciary agents (Súmula 25; STF (Braz)).

46.  An important effect of these two decisions was that it forced the Tribunal to take a position about the place international human rights treaties should have in the Brazilian legal order. Constitutional Amendment No 45 introduced, in 2004, a third paragraph to Art. 5 of the Constitution, which read that international human rights treaties, after signed, if approved, in two rounds, by a majority of three-fifths of the members of both the Congress and the Senate, would acquire the status of constitutional amendment. This rule, however, applied only to those treaties approved after the constitutional amendment in 2004 and not to those treaties ratified prior to it. The STF took then, with the fiduciary agent case, the opportunity to develop a doctrine positioning human rights treaties between the Constitution and ordinary acts. This became known as the doctrine of the ‘supralegality’ (supralegalidade) of human rights treaties. Those treaties ratified before Constitutional Amendment No 45 would then have a lower legal status than the Constitution, recognizing its supremacy in the legal order, but would still have a higher status than typical ordinary acts. This came out of the fact that given the constitutional provision establishing the possibility of arrest of fiduciary agents needed further legal regulation. Instead of setting the ACHR and the ICCPR’s provisions at the constitutional level, the STF decided to create a means to block the possibility of an ordinary act to regulate such type of arrest. In these circumstances, the STF, in the decision of Extraordinary Appeal 466343, attributed to the human rights treaties a place between the Constitution and regular ordinary acts.

47.  Another landmark case of the STF in matters of international law concerns the extradition of the Italian Cesare Batistti. In 2007, the then Italian President Giorgio Napolitano requested the extradition of Cesare Batistti, who was accused of killing four people during his years as a member of the Armed Proletarians for Communism (Proletari Armati per il Comunismo). Batistti had been arrested in 2007 in Rio de Janeiro and remained in jail until 2009, when the then Minister of Justice, Tarso Genro, granted him political asylum in Brazil. The President Luis Inácio Lula da Silva ratified the Minister’s decision based on Article 4, X of the Brazilian Constitution. Given the existence of an extradition treaty between Brazil and Italy since 1989, the STF was asked to respond on the legality of such request. For this, the Tribunal had to decide whether the crimes of which Batistti was being accused constituted common crimes or political crimes. In the latter case, the political refugee status granted by the Brazilian government would be confirmed in merit. In its decision (Ext 1085 PET-AV-ED (11 May 2016) DJe-106 DIVULG 23-05-2016 PUBLIC 24-05-2016 (Braz)), however, despite confirming that the crimes of which Batistti was being accused were in fact common and not political, the STF decided that it would be ultimately to the President of the Republic to decide whether or not to extradite Batistti. The President decided to maintain the political asylum, basing his decision on Art. 3, 1, f) of the Treaty of Extradition between Italy and Brazil, which states that extraditions can be refused when there are reasons to believe the accused is being persecuted for his political positions. The Italian Government, unsatisfied with the STF’s decision to leave it ultimately to the Brazilian President to decide on the extradition, appealed of the decision. This led to a second decision of the Tribunal, in 2011, where it maintained its decision that the extradition was ultimately a case of national sovereignty that had to be decided by the President of the Republic. In this decision, the Tribunal also requested that Batistti be released from prison.

48.  These decisions illustrate to a large extent that the STF has not yet consolidated its position with respect to the relationship between international law and the Brazilian legal order. It has, nevertheless, asserted the supremacy of the Constitution in matters international and pointed to a more monistic stance (dualism / monism). The Tribunal has so far managed to articulate ways in which treaty obligation can be observed, but always in light of the provisions already set out in the 1988 Constitution.

E.  The STF in Comparison to Other Supreme Courts and Constitutional Courts

49.  The STF finds a number of resemblances with various other supreme and constitutional courts around the world. Because the STF accumulates the function of both constitutional courts and courts of last resort, the spectrum of comparison is rather large. Many courts against which the STF can be compared (such as the Supreme Court of the United States and the Federal Constitutional Court of Germany (Bundesverfassungsgericht)) have had a strong impact in the development of certain of its practices and doctrines.

50.  Since the STF comprises functions of judicial review, it is all the more natural to compare it with other courts exercising similar activities. In this respect, the STF is very much similar to the Bundesverfassungsgericht (‘BVerfG’). The BVerfG was actually the main inspiration for the development of the abstract system of judicial review applied today by the STF and many of the competences attributed to the BVerfG in Art. 93 of the Grundgesetz für die Bundesrepublik Deutschland (GG) and in Art. 13 of the Bundesverfassungsgerichtgesetz (BVerfGG) (Art. 93 of the Constitution of the Federal Republic of Germany: 23 May 1949 (Ger); Art. 13 of the Act on the Constitutional Court of Germany: 12 March 1951 (Ger)) in terms of judicial review are similar to those attributed to the STF in Arts 102 and 103 of the Brazilian Constitution. A crucial difference between these two courts is that the Brazilian STF holds particular competences with regards to the criminal trying of members of the government, whereas the BVerfG does not have such jurisdiction. In Germany, the court that most similarly performs the function of the STF as a court of last resort is the Bundesgerichtshof (Federal Court of Justice). The jurisdiction of this court, however, does not deal with constitutional matters and it serves as a last instance court for civil and criminal matters (Arts 95 and 96, German Constitution).

51.  The STF also bears some resemblance to the Constitutional Council in France (Conseil Constitutionnel), in that the latter is also responsible for conducting a judicial review of acts passed by parliament. One important distinction, however, between the STF and the Conseil concerns the way in which they exercise judicial review. In the Conseil, its judicial review activities are pre-emptive and happen before the promulgation of the act (Arts 46 and 61, Constitution of the French Republic: 28 September 1958 (Fr)). Exceptionally, the Conseil can be called, by either the Conseil d’État or Cour de cassation through a question prioritaire de constitutionalité, to pronounce itself a posteriori on the constitutionality of an act being challenged in the course of a proceeding before a lower court (Art. 61-1, French Constitution). This is, however, the only similar function these two institutions have. An illustration of their difference is that the Conseil has, besides its judicial review function, the role of resolving electoral disputes and providing constitutional advice to organs of the government. This latter function, for instance, includes resolving disputes of competence between the Presidency and the National Assembly regarding the legislative process (Arts 39 and 41, French Constitution). Differently from the STF, the Conseil also veils for the presidential and parliamentary elections (Arts 58 and 59, French Constitution).

52.  In its capacity of a constitutional court, the STF can also be brought together in comparison with the South African Constitutional Court and the Israel Supreme Court. These courts also perform similar functions to the STF, albeit there are important differences in the way in which they are executed. Despite there being a Constitutional Court in South African, constitutional competence is distributed amongst all courts in the country (Section 172, Constitution of the Republic of South Africa: 11 October 1996 (S Afr)). Nevertheless, the Constitutional Court holds the last word when deciding about the constitutionality or not of acts being deemed inconsistent or contradictory with the South African Constitution (Section 167(5), South African Constitution). In South Africa, the court exercising the equivalent to the STF’s functions as a court of last resort is the Supreme Court of Appeal (Section 168, South African Constitution). This court basically works as last instance court in all civil and criminal matters, but, like other high courts in South Africa, holds a marginal constitutional competence and may enact orders on the constitutionality of acts passed by parliament, reserved the fact that such orders must be confirmed by the Constitutional Court (Section 172, (2), a), South African Constitution).

53.  There are also two other courts with which it is worth comparing the STF. These are the United States Supreme Court (‘US Supreme Court’) and the recently created Supreme Court of the United Kingdom (‘UK Supreme Court’) (Constitutional Reform Act 2005: 24 March 2005 (UK)). Historically, the STF finds its origins in the necessity the first republican politicians had in establishing a court comparable to the US Supreme Court (Barbosa (1999) 163). In doctrinal terms, however, it has taken some distance from the US Supreme Court in terms of functions. The adoption of a concentrated model of judicial review has set a fundamental difference between these two courts. Although the US Supreme Court provides the last—and arguably the definitive—interpretation of the United States Constitution in all matters, including separation of powers and constitutional rights, it does not perform a judicial review function in the same as the STF does. In fact, the original jurisdiction of the US Supreme Court is rather limited (Art. 3, Section 2(2), Constitution of the United States of America: 17 September 1787 (US)), meaning that most of its cases come through its appellate jurisdiction. The US Supreme Court has though this aspect in common with the STF. It is the siege for appeals having as a ground the violation of a Constitutional norm. It differs from the STF, however, as the US Supreme Court is also authorized to hear cases on violations of federal law (in Brazil, this jurisdiction is exercised by the Superior Tribunal of Justice (Superior Tribunal de Justiça—STJ).

54.  Lastly, the STF can also be opposed to the UK Supreme Court. This court is first created in 2005, by means of a Constitutional Reform Act. It should take over many of the functions of the House of Lords and effectively occupy the place of court of last resort for England, Wales and Northern Ireland. Its competencies are not the same for all members of the United Kingdom (Section 40, Constitutional Reform Act 2005). The UK Supreme Court has a wide competence to decide on civil matters and save for questions relating to devolution, its decisions are binding upon lowers courts (Section 41(3), Constitutional Reform Act 2005). A crucial difference between the UK Supreme Court and the STF is that there is no specific mention of the UK Supreme Court’s competence to decide on constitutional mattes o even to exercise some sort of judicial review. Having been recently created, the scope for comparison between the UK Supreme Court and the STF remains rather limited. Eventually, with the UK Supreme Court’s development, both in terms of doctrine and practice, one may be able to find more similarities with the STF. One last point worth mentioning, which concerns not only the UK Supreme Court, but also the US Supreme Court is that, differently from these two, the STF has never had the original competence to set precedents through stare decisis. It is only through the enactment of súmulas that the STF can attain a similar power over other courts in determining the content of the law.

F.  Final Remarks

55.  Fundamentally, the STF has been acquiring a more prominent role as a decisive institution in the Brazilian constitutional order. Its part in interpreting the Constitution and thus setting decisively the different powers each branch of government has, the extent to which fundamental rights should provide for positive obligations in the part of the public administration and what are the limits for conflicts between federal entities to be recognized. The growing public opinion supporting its work is also an indication that the STF’s position in the Brazilian state and social structure has become more important. This means, nevertheless, that the Tribunal has become ever more cautious and conscious of its decisions, understanding the longstanding and far-reaching impact of its actions. This evidences the importance of the STF not only as the bedrock of the Brazilian judiciary but also of the Brazilian federal republic as a whole.

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