Brazilian power struggle as congress moves to clip supreme court's wings

The Brazilian congress is advancing toward the approval of bills aimed at reining in the power of the country's supreme court.

This week, various lower house committees approved bills that limit the influence of the supreme court, and these measures will be submitted for a vote in the full chamber of deputies.

"The definitive deterioration in the relationship between the lower house and the judiciary occurred due to the judiciary's attempt to reduce the power of lawmakers in decisions related to the federal budget," Lucas Fernandes, a political analyst at local consulting firm BMJ Consultores, told BNamericas.

"The so-called Centrão [a coalition of centrist and center-right parties that dominate congress] has shown immense power in municipal elections and is now exercising that power," added Fernandes.

The already tense relationship between congress and the supreme court further deteriorated recently after supreme court justice Flávio Dino ruled to limit parliamentary amendments – a mechanism that allows lawmakers to control portions of the federal government budget.

This decision directly undermines the political influence of the centrist parties that dominate congress.

Dino, previously the minister of justice and public security under President Luiz Inácio Lula da Silva, assumed a position on the supreme court earlier this year, having been appointed by Lula.

Retaliation

The measures being assessed by congress against the supreme court are widely regarded as retaliation for Dino’s decision. He has called for more oversight and transparency regarding lawmakers' control over budgetary decisions.

One bill, approved in a lower house commission, eliminates the ability of a supreme court justice to unilaterally annul any law at the federal, state or municipal level. It requires that all such decisions be reviewed by the court's full bench of 11 justices.

Meanwhile, another bill grants congress the power to veto decisions made by the supreme court.

“This provides congress with the ability to place a check on the judicial activism of a small group acting unilaterally. It’s a safeguard. This isn't about overriding the judiciary or ending the separation of powers. It’s about ensuring the cohabitation of the two branches," said Luiz Philippe de Orleans e Bragança, a lawmaker from the right-wing PL party and the rapporteur for the bill that allows congress to suspend supreme court decisions.

However, other lawmakers have criticized these measures.

"Who has the final say in this constitutional system? It’s the judiciary. Failing to act this way coerces the supreme court. In what country does the legislative branch interfere with judicial decisions? We’re heading towards chaos," warned João Carlos Bacelar, a lawmaker from the Green Party (PV), which is part of a leftist coalition in congress.

A congressional committee also approved a measure expanding congress's authority to vote for the impeachment of supreme court justices.

The 11 justices of the supreme court are appointed by the president and must be approved by the senate. They do not serve fixed terms and their mandatory retirement age is 75.

The relationship between the supreme court and congress has experienced significant tension in recent years.

Currently, congress is dominated by center-right and right-wing parties. During the 2022 election campaign, when then-president Jair Bolsonaro, a right-winger, was defeated by Lula, who heads a broadly leftist coalition, the court played a direct role in political matters.

During the election, supreme court justice Alexandre de Moraes, who also served as head of the country’s electoral court (TSE), took a hard stance against Bolsonaro due to the former president's repeated allegations of electoral fraud.

As a result, both the supreme court and Moraes became frequent targets of attacks from right-wing factions.

In 2023, the electoral court ruled that Bolsonaro would be ineligible to run for public office until 2030.

The court ruled in favor of a lawsuit filed by the Democratic Labor Party (PDT), which accused Bolsonaro and his running mate, Walter Braga Netto, of abusing power and misusing state-run media to undermine confidence in the country’s voting system during a meeting with diplomats at the start of the 2022 election campaign.

Supreme court vs. X

The Brazilian supreme court’s rulings have also made international headlines.

In September, Moraes suspended the operations of Elon Musk's social media platform X in Brazil.

The suspension came amid a prolonged clash between Moraes and Musk, centered around allegations of fake news dissemination on the platform during Brazil’s 2022 elections and continuing into 2023.

Moraes ordered X to cease operations until it complied with court orders and paid outstanding fines.

Earlier this week, the supreme court allowed X to resume its operations in the country.

"X has proven to fully comply with two conditions for resuming activities: the blocking of profiles that spread false information and the appointment of a legal representative in Brazil, a requirement of Brazilian law for foreign companies operating in the country," the court said in a statement, highlighting that X had paid a fine of 28.6mn reais (US$5.2mn).