Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Whatever happened to the separation of powers? Not only does the Brazilian “presidential” system grant the President vast powers to legislate (through “medidas provisórias” and other, more subtle means) but, most astonishingly, it grants the Supreme Court the power to legislate.

The Curmudgeon, also known as Michael Royster.

Brazilian lawyers love to say that the difference between the “civil code” and “common law” systems is that under the former, judges cannot make law. Brazilian legal scholars know better: consider “moral” damages, where judges made law long before lackadaisical legislators learned their lessons.

This philosophical question came to the fore on June 22nd, 2011, when the STF ruled on four cases brought by workers who had been fired. They claimed, rightly, that Item XXI of Article 7 of the 1988 Federal Constitution (“CF”) requires employers to give severed employees “prior notice proportional to their time of service, of at least thirty days, as determined by law.”

The plaintiffs further claimed, again rightly, that Congress had sat on its collective duff for the past twenty-plus years and had not enacted a statute making the prior notice proportional. Because of this (in)decision, prior notice has remained at exactly thirty days for all workers, whether they’ve served their masters for one year or for 31.

Citing Item LXXI of Article 5 of the CF, the plaintiffs sought a “mandado de injunção” (“writ of injunction”) because “the lack of a regulatory norm has the effect of preventing the exercise of [their] constitutional rights…” To the surprise of many, they won! The STF unanimously held that Congress’s two-decade-long inertia had prevented the long-suffering plaintiffs from receiving their constitutional right to more than thirty days prior notice.

Having agreed upon a result, what were the Justices of the STF to do for a remedy? The “writ of injunction” authorizes them to take a decision, effectively supplanting the statute (not) passed by Congress. In two prior cases, the STF decided to apply, by analogy, to certain workers, the terms of an existing statute applicable in its terms only to other workers. In short, the STF extended the law’s purview to another sector of the working populace.

In these latest cases, however, there is no analogous Brazilian statute—the thirty days prior notice provision in the CLT has been unchanged (and unchallenged) for well over sixty years. So, after law clerks scurried about unsuccessfully seeking to find precedent, the STF adjourned sine die to contemplate its collective navel.

The author of this philippic is a lawyer by vocation, a scholar of constitutional law by avocation, trained within the Anglo-Saxon system. He is appalled. He knows it is NOT the province of the judicial branch to legislate, NOR is it the province of the judicial branch to order the legislature to legislate, NOR is it the province of the judicial branch to award a claimant a lot of money, when there is no LAW (meaning statute enacted by the legislature) granting him the right to that money. Such a judicial award simply usurps the legislative powers granted the Congress by the Constitution.

That is not right.

Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, moved here thirty-plus years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)


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