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Problems and Purpose
Contemporaneously, the Constitutional Courts are now taken as the locus of public reason (Dworkin, 2010), now are highlighted as an institutional interlocutor (Mendes, 2009, Bateup, 2006), and sometimes are characterized by its own capacity to deliberate (Ferejohn & Pasquino, 2002, 2004). Particularly, the relief that the contemporary liberalism lends to the argumentative ability of the Courts (Dworkin, 2010), and the correlative idea that law takes its legitimacy from a culture of justification (Sachs, 2009; Woolman & Bishop, 2008), which is part of the founding of genuine democracies (Mendes 2014), repositions the actions of the Courts within a deliberative decision-making chain (Ferenjohn & Pasquino, 2004, Bateup, 2006, Mendes, 2009). On the other hand, it is assumed that the Constitutional Courts are affected by political environment that surrounds (Friedman, 2009) and seek to be responsive in the face of what circulates in the public expanded sphere.
The question of the democratic legitimacy of the Courts won, therefore, new contours, linked to their ability to enter into an interinstitutional deliberative dynamic and, also, social-state, besides presenting internal deliberative capacity, benefiting from its peculiar decision condition (Edwards, 2003). In this display, the public hearings - which flourish in the Brazilian constitutional jurisdiction - represent an institutional innovation with the potential to realign the debate about the democratic legitimacy of the Constitutional Courts, by broadening of the inclusion that promotes, from the point of view of the integration of actors, but also of epistemic arguments (Landemore, 2015) that have appeared especially in discussions of moral background.
This depends, however, on its ability to promote internal deliberation to the Court, foster inter-institutional dialog (Tulis, 2003; Mendonça & Amaral, 2014; Steiner et al, 2004), and also works as a sort of socio-state interface (Isunza & Hevia, 2006). How come have been practiced by the STF, although they have specific rules for its operation, the APs vary both in relation to its shape, considering the broad freedom that the rapporteur has to define not only who will participate, but also the rules of interaction between exhibitors, as in the face of its possible uses and effects.
Origins and Development
Since 2007, the STF carried out public hearings about the most diverse themes, both in ADIs and ADPFs, as in RExt. Precisely, between 2007 and 2014, the Supreme Court held 15 (fifteen) public hearings. With the exception of one - which focused on the importation of used tires - all other are partially or fully documented at the portal of the court.4
With respect to the overall incidence of public hearings on the constitutional jurisdiction it can be said that the use of this institutional mechanism has been intensifying over the years, not only in the context of constitutional actions - cases in which the STF acts as a constitutional court, exactly - but, also, when it acts as a recourse to the judiciary, although globally it is still a resource of exception. Over the years the use of APs became more frequent: if in the first five years (2007 to 2011) there were 05 (five) APs, in the last two years, have already been conducted 09 (nine), with emphasis on the year of 2013, when they were performed 07 (seven) APs.5
The APs in the STF, however, have a punctual character when considering the total of processes that arrive at the STF, and of these, the total that involves the control of constitutionality- be in extraordinary resource seat, or in the judgment of direct actions. It is noted that the AP is an exception, probably mobilized for the resolution of cases considered more complex and controversial by the Court. The issues surrounding the fulfillment of PAs are not only complex from a legal point of view, but profoundly impact the national public agenda. It is enough to mention that at least two APs - Embryonic stem cell research and abortion in the case of anencephaly - have involved the debate around the "right to life" that goes beyond the boundaries of constitutional dogmatic and meets the most contemporary speeches (and struggles) of feminism.
It is important to mention that even more directly, the STF held a public hearing in the middle of the dispute over the "Mais Médicos" - one of the main programs of the federal government in the area of health, during the first term of President Dilma Rousseff. Even in the area of health, two other APs were summoned to directly be discussed aspects of public policy in this field, particularly related with the Health System - SUS.
The affirmative racial action, which foresaw the reservation of places in higher public education, did not escape of the considerations of the STF and, once again in this case, an AP was convened. In addition, environmental issues were subject of scrutinity in the scope of constitutional actions that deserved the held of APs: imports of used tires, electromagnetic field, burned, prohibiting the use of asbestos. Finally, AP held within the scope of the constitutional action that deal with the campaign financing system in Brazil, a central aspect of political dispute in the current democratic context.
Participant Recruitment and Selection
Each time that an AP is convened the court publishes in its website a summary of the rules of participation. There are three methods of participation: (1) as part of the audience without the right to any manifestation; (2) sending suggestions; and (3) as an exhibitor at the hearing, in which case it is required prior registration and approval by the rapporteur. In the first case, the limit for the participation is the local capacity of implementation 6 and the places are occupied by order of arrival, respecting the reservation to the exhibitors and the press. In the second case, it is assumed that any person or entity, regardless of enrollment. In the second case, it is accepted that any person or entity, regardless of registration, forward useful documents to clarify the issues to be debated in the AP, by print or electronic means.7 The third and most important case concerns the exhibitors of the AP, which are indicated by the
parties of the process, by bodies and state entities and civil society entities or by interested who require their participation (experts enabled)8
Other AP’s characters are outstanding here, considering, particularly the rules of participation of exhibitors. The APs have a face-to-face character, that is, can not be held by the internet and allow an exchange of documents quite limited, favoring the oral manifestation of the participants, with the aim of promoting a debate around the controversy issue. In addition, although it is possible the participation of individual actors - especially as spectators - favors the participation of collective character.
More than 400 exhibitors have already participated in APs in the STF. Exhibitors can be classified according to the origin of their indication: (1) state agents, indicated by one of the three powers of the Republic, or the representative of the Public Prosecutor, or (2) civil society, representatives of professional associations, class entities, medical societies, social movements, fronts, public policy councils, associations of types and forms of varied organization aimed at mutual aid and defense of causes, or, even, (3) specialists who do not present themselves as "speaking on behalf of" or exposing an official position of the institutions and entities which were part, sustaining the participation in expertise accumulated by the exhibitor, either as a student or researcher of the subject debated, or as an occupant of positions in important institutions in the area.
The number of exhibitors by AP varies greatly, but there is a greater participation, in quantitative terms, of exhibitors indicated by associations or groups of civil society: the social organizations represent 37% of the total of participants, followed by experts, which correspond, to 30%. Among the state agents, those appointed by the Executive Branch were the most present, being absent only from the first AP, held in 2007. Representatives of the Legislative Power were present in 10 APs, being come, mostly, of the Chamber of Deputies, particularly in situations in which they had been authors of laws debated or rapporteurs of law projects related to the topic under discussion.
In relation to the sphere of acting, there is a predominance of representatives from institutions located in national level: 67% act at the national level, 29.3% representatives of organs and institutions of the state scope and only 3.7% of the municipal sphere, considering both state agents and representatives of civil society. This predominance can be explained by nature - constitutional – of the issues under discussion, relating to the own constitutional division of competencies that places most of the responsibilities and attributions that puts in the hands of the central power most of the responsibilities and tasks in a wide range of themes and subjects.
On the other hand, the profile of the participants varies according to the theme, relate to the distribution of competences between the federal entities and with the origin of the action that triggered the process, and is associated with the choices made by the parties responsible for the indication of exhibitors, and by the ministers responsible for approval and rejection of requests which impacts directly on the development of civil society adopted in each case.
How it Works: Process, Interaction, and Decision-Making
Generally, the public hearings (APs) are constituted as an instrument of popular participation, foreseen by the Brazilian Constitution of 1988, that in its article 58 provides that the committees of the Chamber of Deputies and the Federal Senate falls to, due to the matters within their competence, hold public hearings with civil society entities. There is, moreover, adjustment in the infra-constitutional legislation. Both the Chamber of Deputies and the Senate have, in its respective internal rules, on the rules and procedures to fulfill public hearings (RICD, art. 255 to 258; RISF, arts. 93 to 95). In both cases, the office hour is considered a form of parliamentary committees instructs legislative relevant matters in process, as well as deal with matters of public interest.
There is no consensus in relation to a definition of public hearings in the academic literature specializing, but in the way that have been practiced in Brazilian legislative houses, PAs consist of open meetings promoted by the parliamentary committees, which may participate legislators, citizens, representatives of civil society entities, technicians and experts with the aim of promoting discussion around a theme or issue of public concern in the area of respective commission.
In the Judicial Power, in particular, the estimates of public hearings in the field of action of the Federal Supreme Court (STF) refers to the publication of Law Number 9,868, of 1999, which should be referred too to the Law 9882/99 - the first regulates the Direct Action of Unconstitutionality (ADI) and the Declaratory actions of Constitutionality (ADC) and the second deals with the Arbitration of Non-Compliance Fundamental Precept (ADPF). With this, established the estimates of APs’ attainment in the ambit of exercise of the concentrated control of constitutionality, by summoning the President of the Court or the Rapporteur of the process and with the participation of members of civil society, for the purpose of clarifying matters or circumstance of fact.
The Internal Regiment of the Supreme Federal Court (RISTF)1, in its article 13, XVII and XVIII, establishes the possibility of convening a public hearing, by the President of the Court, to "listen to the testimony of people with experience and authority in a particular field, whenever he deems it necessary to clarify issues or circumstances of fact, with overall repercussions and of public interest relevant, discussed in the context of the court". It has, moreover, in the sole paragraph, Sections II and III of article 154, about the competence of Minister-Relator to convene the AP, establishing that it should be guaranteed the participation of various currents of opinion and that it touches the decision about the selection of people who will be heard, disclosure of the list of enabled, determining the order of the jobs and fixing the time that each one will have to manifest themselves. Finally, also for determination procedure (Article 154, second paragraph, IV to VII) establishes that the public hearings will be transmitted by Justice TV and Justice Radio, that the work of the public hearing will be registered and added to the records(autos) of the Process, when necessary, or filed in the ambit of Presidency, and that the omitted cases will be resolved by the Minister who convenes the hearing.
There is, thus, formal procedures, rules which involves the formalization of AP (date and time set, clear guidelines, minutes of meetings, recording on video and/or voice), and the conduct of the debate (determining which actors have the word, its time to speak, dynamics of interaction). In general, the APs begin with an opening speech of the rapporteur, who gives the word to the representative of the Public ministry to present their considerations. From there, the exhibitors manifest themselves one by one according to the previously established order.
The great freedom assigned regimentally to the minister-rapporteur to decide, at his discretion, about the people who will be heard, the order of business and the time reserved for each exhibitor, associated with the fact that the rapporteurs repeatedly exercised some kind of control over the content of the exhibitions, limits the ability of the exhibitors to include topics on the agenda and neither give them the desired treatment, which may restrict the potential deliberative character of APs.
There are also limitations on the possibility of interaction among participants, making not possible the regulated exchange of reasons with a view to the presentation and justification of positions and to mutual persuasion. It is possible to recognize at least four different scenarios of interaction in the APs: presentation of the exhibitors, without interventions during or at the end of the hearing; (2) presentation of exhibitors, without interventions during or at the end of the audience, but with questions of ministers at the end; (3) presentation of exhibitors, with occasional intervention to question/ elucidation of the representative of the MP or of the rapporteur; 4) presentation of exhibitors, with the possibility of intervention by the representative of the MP, lawyer of arguer and rapporteur at the end of each exhibition for questions and elucidation.
In general, the format of the hearings makes them more closely to an argumentation than a debate itself. In no case was allowed participants to address a word to each other under the argument that it was an audience of instructional character and even the mention of an exhibitor to speech or argument of another were regulated. Even so, there is some indirect exchange of ideas and information because the participants involved seem to already know the main arguments from each other and strengthen them or question them with the presentation of other arguments and evidence.
Influence, Outcome, and Effects
With regard to the informational gains provided by APs, it appears that throughout the work, the participants have contributed to the approach of the subject from different perspectives, increasing the volume, variety and quality of information. The exhibitions are not restricted to the traditional legal field, extending the technical and interdisciplinary issues, It's because it was produced enough material to support the court's decision as regards the possible prognostic in relation to the consequences, implications and practical repercussions of the legislation discussed, specific impacts on certain groups or in relation to the fundamental values of individuals and Brazilian society.
Analysis and Lessons Learned
Between 2007 and 2014 the STF made an growing use of the mechanism of public hearings to hear the opinion of experts and representatives of state institutions and civil organizations about issues of great relevance, complexity and that involved intense controversy by potential impacts in the fields legal, political, social, economic and cultural.
Generally, the ministers of the Federal Supreme Court associate at public hearings great expectations regarding the extension of the legitimacy of the decisions of the Court, , as well as the informational gains provided by the mechanism to the decision-making process, although they do not always link one variable to the other. However, there seems to be a large distance between discourse and practice when is considers how APs are being applied, far below their potential, particularly in relation to the high degree of discretion of the rapporteur, with negative consequences in terms of assurance as to the equitable inclusion of the parties.
Considering the gathered evidences about the number and profile of the participants of the APs in the STF outstanding the potential of this mechanism to function as an important socio-state interface, to the extent that connects actors and institutions and propose the effective connection of a public discourse more general carried out in a wide range of spheres and arenas.
Although it has been possible to realize a process of institutionalization of APs, expressed by a change in the Rules of Procedure of the Supremo Tribunal Federal (RISTF) and by reiterating of a set of practices involved in conducting hearings, the analysis suggests that many of the differences identified between the events must be explained more by the degree of adherence, by beliefs, perceptions and choices of ministers than by other factors such as theme or time of implementation of the AP, which expresses the enormous discretion of rapporteur and its privileged position in the network of actors involved in the construction of the interinstitutional and socio-state dialog. This discretion points, therefore, to the absence of institutional guarantees for inclusiveness in the process
The strong instructional character of APs, the rigidity in the conduct of the work by rapporteurs, the low level of dialogical interaction between the parties and the character technical scientific discourses are, without doubt, aspects that contribute to this situation. It is worth remembering, however, that there was progress, when it considers, comparatively, the APs. In an exemplary way, the public hearings regarding the debate about the constitutionality of research with embryonic stem cells and the interruption of pregnancy in cases of anencephaly - whose moral discussions of substance are similar - showed different patterns of inclusiveness, being the last much more plural regarding the type of actors, languages, and formats discursive.
On the other hand, the APs performed between 2007 and 2014 varied both in relation to the type of control of constitutionality exercised by the Supreme Court, as in the case of authors/applicants involved in the processes that gave rise to them. In the context of the control concentrate, the APs were performed, in their majority into shares of authorship of representative bodies of society (political parties, trade unions, class representation entities and other civil associations legitimized for the proposition of direct constitutionality actions).Parte inferior do formulário This relationship is reversed when observe the universe of extraordinary features: in this case, which is connected to the diffuse control of constitutionality, the APs performed involved resources authored by state entities (Presidency of the republic, governors of States, tables of the Federal Senate, House of Representatives and Legislative Assemblies, and the Public Ministry).
Furthermore, the APs held by the Supreme Court addressed the various issues, such as the right to life, consumer protection, the principle of isonomy, economic freedom and free enterprise, Right to health, dignity of life and health of the worker, protect the environment, among others.
The events were called by various ministers. Since that was the first AP, in April 2007, the STF has already changed its composition seven times. In all, acted in court between 2007 and 2014, 17 (seventeen) ministers. Of these, 07 (seven) convened public hearings: Ayres Britto and Ricardo Lewandowski convened one, each one; Gilmar Medes, Carmen Lúcia and Dias Toffoli convened two, each one; Marco Aurélio Mello convened three and Luiz Fux convened five public hearings, even if it has taken possession only in 20119.
Considering that the rapporteurs have the discretion to decide when to convene or not a AP, we can assume that some ministers have greater sympathy for institutional innovation than others, particularly when there is so much variation in relation to the type of control of constitutionality in the area which the APs were performed, the themes involved and the types of authors/applicants, as a way of assessing the interests of the state and society.
The reasons expressed in the convocation, on the other hand, refer sometimes to the quality of the issue involved, highlighting its relevance (legal, economic and social) and controversial nature, and sometimes to the potential of their AP to placate the challenges posed by the construction of a decision that is crucial and involves a debate that raises "diversified approaches", numerous questions, multiple understandings and various controversies. Associated with the recognition of the informational potential of the APs, the convocation notices are explicit about the gains of legitimacy expected with the event, which is also recurrent in the demonstrations of the ministers throughout the hearings. The opening and closing statements of the sessions have served as a moment of reflection around the AP, particularly in relation to its objectives, the expectations associated with its achievement and its meaning, both for the STF and for the Brazilian democracy.
The concept of popular participation, listening to "the people", " the society" is fairly mobilized also by representatives of the Public ministry, present in sections, and by many of those who participated as exhibitors. The perception of the ministers - and exhibitors - about the potential of public hearings in the sphere of the constitutional jurisdiction seems to be based on a conceptual tripod: Legitimacy, Participation and information. The democratic legitimacy of the decision-making process is deepened by the participation that public hearings promote insofar as more informed decisions are produced, considering not only the technical complexity of the issues involved but also moral pluralism and the multiple political perspectives present in society. There is another characteristic of public hearings: they have an advisory character, since they open the possibility for segments of society to express themselves and propose solutions, although it is up to the ministers to accept the proposals or not.
Public Policy Council (Brazil)
Brazil's National Policy of Social Participation
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1 In the United States the public hearings, since the 1980s, were already recognized as one of the more traditional methods of citizen participation, presents in all government levels and increasingly frequent, in number, and diversified, in their uses (Checkoway, 1981:566).
2 In own National Constituent Assembly, the public hearings have played an important role in "both the diversity of participants and sectors represented as by the hundreds of proposals and numerous controversies that have arisen" (Brasil, 2009).
3 The Internal Regiment of the Supreme Federal Court was amended in 2009 (Amendment Procedure No 29, 18/02/09), to insert devices relating to public hearings in the ambit of that Court.
4 Vide <www.stf.jus.br>. Last access in 20/02/2014.
5 In 2015, were held 02 (two) APs is not included in this analysis: a convened by Minister Luís Roberto Barroso to subsidize the judgment of ADI 4,439, which discusses the models of religious teaching in public schools and the other, convened by the minister Gilmar Mendes, to deal with the "use of judicial deposit".
6 In some cases, with overcrowding of the site, the Court provides a second room to allocate the participants with simultaneous transmission of AP through screens.
7 The portal of the STF offers, for some public hearings, texts, documents and suggestions sent by social institutions and organizations interested in the subject.
8 The bodies and organizations interested in indicate amici curiae must register to attend the hearing within the deadlines stipulated in the call notice. The application for registration as an Exhibitor should be accompanied by the curriculum vitae of specialist, as well as of the Abstract of the thesis and the position to be defended.
1st. version 05/16 by Marjorie Corrêa Marona (UFMG); Marta Mendes Rocha (UFJF).
Note: This is the English-language translation of a case study that is also available in Portuguese: https://docs.wixstatic.com/ugd/a46f9a_07b7c2cdb76640ac8b730905ba09a4bd.pdf