The Federal Supreme Federal Court (STF) convened en banc concluded last month the trial of Direct Action of Unconstitutionality (ADI) No. 4,296/DF, which debated the (un)constitutionality of provisions[1] of Law No. 12,016/09 (the Application for Mandamus Law).
Among the provisions submitted for the Court's review in the ADI filed in 2009 by the Federal Board of the Brazilian Bar Association (CFOAB),[2] attention is paid, in procedural matters, to article 22, paragraph 2, according to which urgent relief, in a collective application for mandamus, may only be granted after hearing the judicial representative of the legal entity under public law, which must be ruled on within 72 hours.
Article 22, paragraph 2, was declared unconstitutional by the majority of the Federal Supreme Court. The Court found that, among other grounds, the provision in question restricts the general power of the magistrate's discretion and the constitutional principle of irremovable jurisdiction, provided for in article 5, subsection XXXV, of the Federal Constitution of 1988 (CF).
The debate submitted to the Supreme Court is old and subject to divergence. On the one hand, there are those who contend, in the legal scholarship[3] and case law,[4] non-relativization of the provisions of article 22, paragraph 2. Whereas the collective applications for mandamus aim at protecting transindividual liquidated and certain rights that have been violated or threat of an illegal or abusive act by a public authority or by those who exercise a public function, the understanding prevails that the intention of the legislator was to guarantee the public power awareness of the size of the claim contained in the collective action and the repercussions that may be caused to the administrative organization if the urgent relief is granted. Thus, the requirement of a prior hearing of the government authority has as a background preservation of the public interest.
From the point of view of procedural law, the declaration of unconstitutionality of article 22, paragraph 2, by the Federal Supreme Court should be considered a step forward, since the institute of provisional urgent relief is respected.
Although at issue is a collective application for mandamus, there is no way to ignore the system envisaged, especially in the Code of Civil Procedure of 2015, which valued the the paradigmatic system of democratic constitutional process, valuing the aforementioned constitutional principles of the effectiveness of relief and the reasonable duration of the proceeding.
The exercise of the adversarial process – the right of the party to be aware of all acts and terms of the proceedings, to influence the content of the judicial decision, and enable cooperation between the parties and the judge – may and must be postponed in exceptional circumstances, where the requirements laid down in article 300 of the CPC are met: the likelihood of success on the merits and the danger of damage or risk to a useful outcome of the proceedings (e.g., cases seeking the supply of medicines by the State and beds for hospitals).
It is still relevant to state that the decision by the STF values the general power of discretion of the magistrate, provided for in articles 297 and 301, of the CPC,[7] as well as the constitutional principle of separation of powers (article 2 of the CF), since it removes the obligation of the public representative in view of the analysis and granting of urgent relief in favor of the plaintiff.
The result of the STF’s judgment is another demonstration that care is needed in indistinct and unthinking application of legal concepts linked to the administrative legal system, especially regarding the prevalence of the public interest over the private.[8] Because, as Justice Alexandre de Moraes pointed out in the judgment on ADI No. 4,296/DF, litigating against the Treasury is a battle similar to that fought between David and Goliath – in practice, even if urgent relief is granted without the hearing the representative of the legal entity governed by public law, the public authorities have at its disposal instruments of its own to seek suspension of the judicial relief (for example, suspension in limine relief).
In line with the majority understanding of the STF, it is expected that the state courts will review the current position and allow the granting of urgent relief in collective applications for mandamus when the urgency of the concrete case so determines.
The recognition of the unconstitutionality of article 22, paragraph 2, of the Application for Mandamus Law should mean overcoming the prior understanding, so that the summons of the representative of the public power to rule on the request for urgent relief is understood as an exception, when it does not compromise the safeguarding of the collective right of the plaintiff, respecting the independence of the judiciary.
[1] Article 1, paragraph 2; article 7, subsection III and paragraph 2; article 22, paragraph 2; article 23; and article 25.
[2] Among the provisions examined by the Federal Supreme Court, the following were declared unconstitutional, by a majority: Article 7, paragraph 2 (which provides for the granting of an in limine relief with the objective of "clearing tax credits, the delivery of merchandise and goods from abroad, the reclassification or equalization of public servants, and the granting of an increase or extension of advantages or payment of any kind"; and article 22, paragraph 2, dealt with in this article.
[3] "The requirement that the granting of in limine relief in a collective application for mandamus be preceded by a hearing of the government authority (Law No. 12,016, article 22, paragraph 2) is justified by the public interest, expanded, in kind, by the broad repercussion that the relief may provoke, by the very nature of collective rights, for the exercise of the functions of the Public Power." (GOMES JÚNIOR, Luiz Manoel. Comments on the new Application for Mandamus Law. 4th Ed. São Paulo: RT, 2015, p. 268). Similarly: "Collective applications for mandamus follow the same procedure as individual applications for mandamus, except that the relief may only be granted after the hearing of the judicial representative of the legal entity governed by the relevant public law, which must be ruled on within 72 hours .... This is a repetition of what was already contained in article 2, Law 8,437, of June 30, 1992." (MEIRELLES, Hely Lopes; WALD, Arnoldo; MENDES, Gilmar Ferreira. Applications for mandamus and constitutional actions. São Paulo, Malheiros, 2019, p. 144).
[4] TJMG, Interlocutory Appeal No. 1.0024.13.129103-1/001, opinion drafted by Appellate Judge Vanessa Verdolim Hudson Andrade, 1st Civil Chamber, decided on April 15, 2014; TJSP; Interlocutory Appeal No. 2141910-88.2017.8.26.0000, opinion drafted by Appellate Judge Osvaldo de Oliveira, 12th Chamber of Public Law; decided on February 14, 2018; TJSP, Interlocutory Appeal No. 2157344-83.2018.8.26.0000, opinion drafted by Appellate Judge Ferraz de Arruda, 13th Chamber of Public Law, decided onNovember 28, 2018; TJRS, Interlocutory Appeal No. 70080999584, opinion drafted by Appellate Judge Marcelo Bandeira Pereira, Twenty-First Civil Chamber, j. 3.29.2019.
[5] "The rule, in fact, is that all interested parties – and this includes, nor could it be otherwise, the Public Power – be heard in court in advance. In this sense, nothing is more coherent than for the legislature to, considering the subjective extent that the collective application for mandamus has the ability to reach, choose to establish the prior adversarial process prescribed in the provision under examination. What cannot occur, however, under penalty of aggression against the 'constitutional model of civil procedural law', is that the legal requirement end up making it impossible to grant relief in natura to the application, including in its collective form, intended since the enactment of the Federal Constitution. So much so that broadly it is a majority understanding in legal scholarship that the representative of the public power alone should be ordered to rule on the request for an in limine relief if such an relief does not compromise the safeguarding of the right of the plaintiff, that is, in those cases where, necessarily, the Periculum in Mora (the danger of ineffectiveness of the measure) is not as intense. However, as the establishment of this prior adversarial process must be necessary and systematically set aside, giving rise to the constitutional greatness of the institute." (BUENO, Cassio Scarpinella. The New Application for Mandamus Law, 2nd ed., São Paulo: Saraiva, 2010, pp. 182/183). Emphasis added.
[6] THEODORO JUNIOR, Humberto. Course on civil procedural law. 56 rev. ed., current. and expanded. Rio de Janeiro: Forensics, 2015. v. I. p. 616.
[7] GAIO JÚNIOR, Antônio Pereira. Institutions of civil procedural law. 2nd Ed. Belo Horizonte: Del Rey, 2013. p. 661. In addition, the scholar points out, in an express mention of the Code of Civil Procedure of 1973, that: "we were already saying at that time of the repealed Code that the existence of such power is justified with a central argument that, for the legislature, it would be impossible to predict and provide for, completely and exhaustively, all feasible forms of danger and possible solutions thereof. This time, it will be up to the magistrate, when prompted, to undertake the task of determining, in the face of the specific case, the measures necessary to cope with situations of law worthy of relief." Emphasis added.
[8] "The theory that the interest of society (primary public interest) could be sacrificed is no longer well accepted to meet purely state interests (secondary public interest), especially those of a budgetary nature: in the Democratic State of Law the guidelines outlined in the Constitution motivate and lead the performance of the Public Power, which is why often the public interest is only truly met upon true satisfaction or restoration of a particular right." (BARROSO, Luis Roberto. The Contemporary State, Fundamental Rights, and the Redefinition of Supremacy of the Public Interest, Rio de Janeiro: Lumen Iuris, 2007, pp. 8-9.
