The Supreme Federal Court (STF) is a prominent branch of the Judiciary within the organization of the State. Its functions range from controlling constitutionality, assuming the role of guardian of the 88 Constitution, to judging crimes committed by the President of the Republic.
Furthermore, if you followed the COVID-19 Parliamentary Commission of Inquiry, you may have noticed the involvement of the Supreme Federal Court (STF) at various stages of the process. However, have you ever wondered what the limits of its actions are? Or, on the other hand, how are the justices who make up this court chosen?
Understanding the importance and function of the Supreme Federal Court is essential for every Brazilian citizen, regardless of whether you are a student , a legal professional, or from a different field.
So, keep reading this article! Next, we will answer the most common questions and highlight the main points about the Brazilian Supreme Court.
What is the Supreme Federal Court?
Also known as the Supreme Court, the Supreme Federal Court is the highest court in the Brazilian judicial system. In other words, it sits at the top of the hierarchy among the courts. As a national court, its jurisdiction covers the entire Brazilian territory.
Regarding the legislative aspect, the Supreme Federal Court's regulations can be found between articles 101 and 103-B of the 1988 Federal Constitution.
Historical context of the Supreme Federal Court
Although the topic of protecting fundamental rights and constitutional remedies is relatively recent, the Supreme Federal Court already has a 130-year history.
From the same perspective, in a plenary session, Minister Luiz Fux made the following statement:
" From 1891 to the present day, the Supreme Federal Court has spanned six constitutions and witnessed the civic maturation of the Brazilian nation."
In its initial, and even superficial, formation in 1808, the functions now performed by the court were carried out by what was then called the "House of Supplication of Brazil".
However, we cannot think of the functions performed in 1808 as those defined by the 1988 constitutional text. This is because each period adapts its representation to the Supreme Court based on the constitutional moment in which it was experienced.
Later, we had other names and models of various courts until we arrived at the current version established by the 88 Constitution. Let's see:
● 1808Brazilian House of Appeals;
● 1891Supreme Federal Court;
● 1934: Supreme Court;
● 1937, 1946, 1967, 1969, 1988: Federal Court of Justice.
We can further emphasize that, although the representative name was Supreme Federal Court in 1967 and 1988, the model adopted differed.
This becomes clear when we analyze the history of unconstitutionality of the Institutional Acts. Such is the case with AI-5, which involved the removal of the constitutional remedy of habeas corpus.
After all, we've mentioned the functions of this court so much, and yet we haven't addressed each one individually. So, let's get started!
What is the main function of the Supreme Federal Court (STF)?
The Supreme Federal Court has the role of protecting the constitution, judging federated entities and some political and administrative representatives . Furthermore, its jurisdiction is divided into original and appellate jurisdiction.
Gilmar Mendes, in his book Course on Constitutional Law, further adds:
" Our Constitution assigns the function of standardizing the understanding of federal infra-constitutional legislation to the Superior Court of Justice, leaving the final word on constitutional matters to the Supreme Federal Court. The Supreme Federal Court also acts as the court of the Federation when it considers representations for intervention purposes."
Original
By definition, original jurisdiction refers to acts that are originally judged by the Supreme Court. In other words, it is the sole responsibility of the Supreme Federal Court (STF) to judge and prosecute.
The grounds for original jurisdiction are outlined in Articles 102-I and 103-A of the Federal Constitution. Next, for better understanding, we will briefly explain the most important ones.
Guardian of the Constitution
The main function of the Supreme Federal Court is to safeguard the Constitution, as we have already mentioned. Its primary duty is to protect constitutional norms.
In these cases, the Supreme Federal Court (STF) considers two lines of action:
"Article 102. The Supreme Federal Court is primarily responsible for safeguarding the Constitution, and it is its duty to: I – hear and decide, in the first instance:
a) direct action of unconstitutionality of a federal or state law or normative act and the declaratory action of constitutionality of a federal law or normative act; (Wording given by Constitutional Amendment No. 3, of 1993)”
Therefore, we understand that:
- Direct Action of Unconstitutionality (ADI): In this case, the Supreme Federal Court (STF) is called upon to decide whether the rule is unconstitutional;
- Declaratory Action of Constitutionality (ADC): Here, the aim is to declare the constitutionality of a specific law or normative act. However, it is worth noting that the ADC (Direct Action of Unconstitutionality) only deals with federal law.
For more information on the procedures and legal process of these actions, we also recommend reading Law 9.868/99.
To judge common crimes.
Another function of the Supreme Federal Court (STF), included in article 102-I, is the duty to judge and prosecute common crimes committed by certain political and administrative representatives. These include:
● President of the Republic;
● Vice-President;
● Members of the National Congress;
● Ministers of the Supreme Federal Court itself;
● Attorney General of the Republic.
Specifically regarding the President of the Republic, we emphasize that this does not include criminal offenses, crimes of responsibility, and crimes committed outside of their term of office.
In the case of crimes of responsibility, these will be judged by the Federal Senate. As an example, we have the case of the impeachment of former President Dilma Rousseff.
In cases involving crimes committed outside of a term of office, the prerogative of the Supreme Federal Court is taken into account. That is, the jurisdiction with prerogative of function.
Conflicts of jurisdiction
In its text, Article 102-I also presents the possibility of the Supreme Federal Court (STF) acting in cases of conflict of jurisdiction. Thus:
"Article 102. The Supreme Federal Court is primarily responsible for safeguarding the Constitution."ição, which falls to him:
I – to process and judge, originally:
(o) conflicts of jurisdiction between the Superior Court of Justice and any other courts, between Superior Courts, or between these and any other court;”
From this, we can consider the following table:
| CONFLICT BETWEEN | COMPETENCE |
| Superior Courts | STF |
| Superior court and other courts not bound by it. | STF |
| Superior court and courts not bound by it. | STF |
Appeal
As explained in the topic above, ordinary jurisdiction is that which originates from the Supreme Federal Court (STF). On the other hand, appellate jurisdiction is defined as the final appeal instance in a case.
In other words, no appeal is possible against any decision made by the Superior Court of Justice. This effectiveness definitively consolidates its position as the highest office in the Judiciary.
Furthermore, the jurisdiction for appeals covers all the situations outlined in Article 102, paragraphs II and III, of the Federal Constitution.
"Article 102. The Supreme Federal Court is primarily responsible for safeguarding the Constitution, and its duties include:
II – to judge, in ordinary appeal:
a) habeas corpus, writ of mandamus, habeas data, and writ of injunction decided in a single instance by the Superior Courts, if the decision is denied;
b) political crime;
III – to judge, by means of extraordinary appeal, cases decided in a single or final instance, when the appealed decision:
a) to contravene any provision of this Constitution;
b) to declare a treaty or federal law unconstitutional;
(c) to judge the validity of a law or act of local government challenged in light of this Constitution.
(d) to judge the validity of a local law challenged in light of federal law. (Included by Constitutional Amendment No. 45 of 2004)
Therefore, as the highest court, the STF ( Supreme Federal Court) judges appeals related to constitutional remedies . It's also important to note that not every case will be brought before the Supreme Federal Court.
This is because the Supreme Federal Court (STF) understands that the case would need to have general repercussion in order to be processed in this court. In this sense, Marcelo Marchiori explains:
"The Supreme Court today is a different court than it was before the General Reform Act, when it spent its time repeating thousands of decisions. Now, when the justices rule on a matter, it establishes a complement within the legal system itself, which must then follow the court's understanding."
What is the structure of the Supreme Federal Court (STF) and how are the justices divided?
The structure of the Brazilian Supreme Federal Court is regulated by Article 101 of the Federal Constitution. Thus, the STF is divided into a plenary session, two chambers, and the President of the Court.
"Article 101. The Supreme Federal Court is composed of eleven Justices, chosen from among citizens over thirty-five and under sixty-five years of age, of notable legal knowledge and unblemished reputation."
● Plenary : It is composed of the eleven justices, represented by the President of the Court. Furthermore, it is important to note that there are no alternate positions;
● Classes : Classes consist of five members. Furthermore, their representative will be the most senior member;
● Presidency of the Supreme Federal Court: In the case of the president of the court, the choice is made by a vote of the ministers themselves. The term is two years, and re-election is prohibited. Furthermore, there is a custom of electing the most senior members who have not yet held the position.
How do votes take place in the Supreme Federal Court?
Voting in the Supreme Federal Court is conducted for various jurisdictional matters, as discussed in the section "What is the main function of the STF?".
But how do they work in practice? In essence, the voting process is designed so that the majority vote determines the decision.
With Amendment No. 35, we also came to understand that the vote of the President of the Court would be the deciding vote. That is, in the event of a tie resulting from the absence of one of the justices, the vote of the President of the Supreme Court would determine the tiebreaker.
How to become a Supreme Court Justice?
If you've ever considered becoming a minister, first of all, you should know that there are some very important requirements to hold this position. So, let's learn about each of them?
Nomination for the position
First, we must consider that this is a political position. In this case, this means that the nomination to fill the position of minister is made by the President of the Republic. Therefore, there is no public competition related to the Supreme Federal Court (STF).
However, it's worth remembering that for the appointment to happen, a vacancy must exist. The position of minister is for life, with retirement occurring at age 75. In other words, the only way for a new minister to assume the position is if one retires or dies.
After the nomination, the process will still go through the Federal Senate where it will be submitted to a vote in order to approve or reject the person for the position of Supreme Court Justice.
In this regard, Article 101 of the Federal Constitution adds:
" Sole paragraph. The Justices of the Supreme Federal Court shall be appointed by the President of the Republic, after the choice has been approved by an absolute majority of the Federal Senate."
Age and nationality requirements
Another point of attention concerns the minimum and maximum age requirement to be eligible for the nomination. According to the Federal Constitution, Supreme Court justices must be at least 35 years old and not exceed 75 years of age.
Furthermore, the constitutional text also stipulates that the position must be held exclusively by native-born Brazilians. This is one of the few positions that includes this requirement, and it is important to keep in mind the distinction between native-born Brazilians, naturalized Brazilians, and foreigners.
"Art 12. They are Brazilians:
I – natives:
a) those born in the Federative Republic of Brazil, even if of foreign parents, provided that these parents are not serving their country;
b) those born abroad to a Brazilian father or mother, provided that either of them is serving the Federative Republic of Brazil;
(c) those born abroad to a Brazilian father or mother, provided they are registered with a competent Brazilian authority or come to reside in the Federative Republic of Brazil and opt, at any time after reaching the age of majority, for Brazilian nationality;”
Academic education
In addition to the requirements mentioned above, the Federal Constitution also requires "notable legal knowledge." Therefore, we can assume that a law degree is not a prerequisite.
However, something we've noticed in common among all the justices is their in-depth legal knowledge, wealth of experience, and pursuit of expertise. It's no coincidence that several justices who have served on the Supreme Court are leading scholars and experts in their fields of specialization.
In this regard, in his work on Constitutional Law, Michel Temer also states:
“ The Constitution refers to “notable legal knowledge.” Must one have a law degree? Undoubtedly, yes. Only those who have practiced law for a certain period can become notable in the legal field.”
How much does a Supreme Court Justice earn?
Finally, if you're curious to know the salary of a Supreme Court Justice, you can find out! To maintain transparency, the Supreme Court's own website provides a free tool where you can check the monthly remuneration of the justices.
To access it, simply go to the official website of the Supreme Federal Court and select "Transparency" from the menu. And if you don't find what you're looking for, you can still call the citizen service center.
However, we can already say that in 2018 the salary readjustment for the ministers of the Supreme Federal Court (STF) was approved. From 2019 onwards, salaries increased from R$33.763,00 to R$39.293,32, representing a 16,38% increase.
Conclusion
Finally, we have reached the end of the article about the Supreme Federal Court. Throughout the text, you have learned about the main functions of this highest court in the Judiciary.
However, the matter doesn't end there! And, as already mentioned, understanding the role of the Supreme Federal Court (STF) is undoubtedly important for all Brazilian citizens. On the IDP Blog you can find more content about Advocacy and Law to delve deeper into this and other topics!
References
TEMER, Michel. Elements of Constitutional Law. 14th ed. rev. and enlarged. São Paulo: Malheiros. 1998.
ZAFFARONI, Eugênio Raul. Judicial Power. São Paulo: Revista dos Tribunais, 1995
LENZA, Pedro. Constitutional Law. 25th ed. São Paulo: Saraiva Educação
MENDES, Gilmar Ferreira. Course on Constitutional Law / Gilmar Ferreira Mendes; Paulo Gonet Branco. 15th ed. São Paulo: Saraiva Educação, 2020. (IDP Series).