The recent Proposal to amend the Constitution no. 28/2024 (PEC 28/2024), currently under discussion in the House of Representatives, proposes to amend the constitutional review by allowing Congress to suspend certain decisions of the Federal Supreme Court in specific cases. In light of widespread criticism of the reform, this article attempts to examine the validity of these concerns. While we do not take a definitive position on the advisability of the amendment, we identify and discuss some overblown and premature criticisms present in the public debate. In addition, we explore how models of weak judicial review, successfully integrated by many established democracies, can foster constitutional dialogues and collaboration, potentially reducing counter-majoritarian frictions and strengthening democratic principles. Our objective is to clear up misconceptions and qualify the discussion about PEC 28/2024, rather than to advocate for or against the proposed changes.

In recent years, a widespread perception of the dysfunctionality of Brazil’s Federal Supreme Court has grown across the country, prompting the proposal. In a survey conducted in September 2021, 63% of respondents said that the judicial system is a risk to democracy. Another poll from 2024 shows that 47% believe that Brazil is “under a judicial dictatorship”. Only two in ten said the country was living in a period of normalcy in terms of Judicial. Opinion polls also reveal a consistent downward trend in levels of public approval and trust in Brazil’s Federal Supreme Court (about 17% in 2023 and 14% in 2024). Finally, in the past few years, there have been repeated protests against Brazil’s Federal Supreme Court, claiming that it has violated freedom of expression, the practice of law and endangered democracy.

Faced with these facts, Congress began to consider several proposals that congressmen described as efforts improving the work of the Court. One of the proposals seeks to amend the Constitution to establish the following: “In the decisions of the Federal Supreme Court, in the exercise of constitutional jurisdiction in concrete or abstract cases, if the National Congress considers that the decision goes beyond the proper exercise of the judicial function and creates new legal provisions of a general and abstract nature , may suspend its effects by the vote of two-thirds of the members of each of its legislative Chambers, for a period of two years, extendable only once for an equal period. .”

Another provision sets out how the literature has nominated “double cancellation” provision.. Accordingly, if Congress exercises its prerogative of derogation, the Federal Supreme Court can uphold its decision, but only by a highly qualified four-fifths majority of its members.

The proposal has drawn criticism, as significant parts of the public are accustomed to the model of judicial review that has developed strongly in recent decades. Critics argued the amendment could erode the rule of law and threaten judicial independence. In addition, opponents recalled a bad experience with a “disregard clause” in the 1937 Brazilian Constitution. during the Vargas dictatorship.

However, an analysis from a comparative legal perspective and more precise historical studies do not support these concerns. Strong democracies with high levels of rule of law and judicial independence have adopted models of weak judicial review. In addition, the experience during the Vargas regime was markedly different, including the fact that Congress was closed and the outsized powers were monocratically exercised by the dictatorial Chief Executive.

Indeed, the model of constitutional review proposed in the amendment is compatible with strong adherence to the rule of law and judicial independence in constitutional democracies. To understand this, it is important to study the concept of weak judicial review that underlies the proposal, its potential to have a beneficial impact on democratic structures, and the data from countries that have adopted it.

The weak model of judicial review is an alternative answer to the question of how legal systems should guarantee the supremacy of the constitution. As constitutions have come to be understood as legal – and not just political – documents that can be enforced through legal remedies, we must answer the question of how to implement this idea institutionally. Who should interpret and apply a constitution, and how should this responsibility be exercised, particularly in systems marked by open principles and clauses?

Initially, the idea of ​​the judiciary as the guardian of constitutional authority emerged as the first intuitive response. In countries where this approach has been hegemonic, such as Brazil, people tend to view weak models of judicial review with skepticism. However, the “judiciary as guardian” approach has led to problematic phenomena, such as the “judicialization” of politics and, in some cases, the perception of a shift from democracy to juristocracy. With the growth of judicial power, many countries have begun to address the issue of judicial activism. A major problem is the “counter-majoritarian difficulty,” where courts can prevent policies widely supported by the population, potentially blocking the agendas of the virtuous majority. In addition, there is a risk that the courts will be politically captured, which could undermine the democratic balance favoring dominant political interests, stifling opposition and promoting partisan agendas.

In response to these tensions, especially since the late 20th century, legal systems have developed new ways to ensure constitutional supremacy without relying solely on judicial supremacy. Common law countries, led by the United Kingdom, led this movement, forming what Stephen Gardbaum called “The New Model of Commonwealth Constitutionalism”. While embracing judicial review, this model upholds parliamentary sovereignty as the final arbiter. Courts in these systems can review laws for constitutionality, but final authority rests with the legislature. Mark Tushnet further clarified this distinction by classifying judicial review as either “weak” or “strong”. In “weak” judicial review systems, legislators retain the ability to override judicial interpretations of constitutional issues, while in “strong” systems, judicial decisions are not subject to immediate political review.

As regards the weak implications of constitutional control for democracy, scholars have praised its potentially virtuous effects on democratic dynamics. This model could stimulate constitutional dialogues because it increases collaboration and reduces counter-majoritarian frictions, allowing courts to engage constructively with legislators. It therefore provides a way of harmonizing judicial review with democratic principles, advocating a dynamic and balanced approach to constitutional governance. Contrary to a true clash between the judiciary and the legislature, the notion of collaboration ultimately serves as a driving force in this context. Indeed, following the perspective presented by Kavanaghinstead of a dynamic of disagreement and judicial displacement, what is expected to emerge in a functioning liberal democracy is a constitutional relationship marked by respect and restraint, kindness and collaboration.

Finally, some of the countries that have established weak forms of judicial review include Canada, the United Kingdom, and New Zealand. All have strong levels of democratic consolidation and adherence to the rule of law. Indeed, the 2023 Democracy Index classifies them all as full democracies. In Rule of Law Indexthe three countries hold strong positions among the top 15 marks. In terms of the ability of the judiciary to limit government and administer the law impartially and without undue pressure from the government, all countries also reach high ranks and positions in the ranks.

As for the Brazilian case, comparisons with the Vargas dictatorship are unfounded. To begin with, the current constitutional circumstances differ completely from those of the 1937 Constitution. During the Vargas dictatorship, Congress was closed and the powers of annulment were concentrated in the hands of the Chief Executive, creating an authoritarian scenario. Instead, PEC 28/2024 brings to Congress a mechanism to control and safeguard the inter-institutional balance in a framework much studied and debated in political science and the theory of the state. Especially in light of the inherent democratic tensions that the concept of judicial review introduces from its conception and throughout its ongoing development. Actually, as recognized by scientistsjudicial review can significantly protect and promote democratic values ​​such as deliberation and the protection of minority rights, “but it does so in ways that are inevitably in tension with—rather than immune to—democratic objections of the sort raised by political constitutionalists “.

Finally, it is important to note that the current Proposed Amendment requires a qualified two-thirds majority in both legislative chambers to suspend a court decision, limiting this suspension to a maximum of four years. These features ensure a deliberative and representative collaborative process, far different from the dictatorial context of 1937. In addition, the current proposal has a double override clause, which is a significant shield against potential political abuses.

In conclusion, regardless of its approval or political feasibility, PEC 28/2024 opens the door to a wider discussion about the rebalancing of powers in Brazil’s constitutional framework, while building on positive experiences from established democracies that have successfully integrated control models weak judiciary. In addition, PEC 28/2024 allows for a critical assessment of the current state of constitutional review by the Federal Supreme Court of Brazil. Above all, the proposed amendment is situated within a wider debate aimed at mitigating the risks of judicial overreach while preserving essential democratic principles, including the rule of law and judicial independence.