PRECAUTIONARY MEASURE IN CLAIM 5.716-0 (412)

MED. CAUT. IN COMPLAINT 5.716-0 (412)
PROCED.: PERNAMBUCO
Rapporteur: Justice Celso de Mello
CLAIMANT(S): REGULATORY AGENCY FOR DELEGATED PUBLIC SERVICES OF THE STATE OF PERNAMBUCO – ARPE
Attorney(s): Leonardo José Carneiro da Cunha
DEFENDANT(S): FEDERAL JUDGE OF THE 10TH COURT OF THE SECTION
JUDICIARY OF PERNAMBUCO (CASE NO. 2007.83.00.017870-1)
INTDO.(A/S) : UNION
Attorney(s): Attorney General of the Union
INTDO.(A/S) : SERVIÇOS E ADMINISTRAÇÃO PERNAMBUCO DA SORTE LTDA.
Attorney(s): Alexandre Wanderley Lustosa
 
DECISION: This claim is based on two grounds: (a) the alleged usurpation of the competence of the Federal Supreme Court and (b) the alleged disrespect for the authority of the decision that this Supreme Court rendered in the judgment of ADI 2.995/PE, of which I myself was the Rapporteur.
Regarding the first argument, it is claimed that the decision now being challenged was issued in a context that allegedly demonstrates the inappropriate use of the public civil action as an instrument for initiating an abstract regulatory review process.
It is further asserted, always from the perspective of the alleged usurpation of this Supreme Court's jurisdiction, that the filing, by the Federal Union, of the aforementioned public civil action against an autonomous entity of the State of Pernambuco (ARPE) would characterize a situation configuring a federal conflict, capable of giving rise to the application of the rule of original jurisdiction enshrined in art. 102, I, "f", of the Constitution of the Republic.
Given this context, I will now examine the precautionary request, analyzing it on the grounds of the alleged usurpation, by the judicial authority now being challenged, of the original jurisdiction that the Fundamental Law exclusively grants to the Supreme Federal Court.
I am not convinced, regarding this basis, by the first of the allegations made by the claimant, namely that the public civil action filed by the Federal Union against the Regulatory Agency for Delegated Public Services of the State of Pernambuco – ARPE and another passive co-litigant would imply the initiation, before a federal magistrate of first instance, of a true abstract normative review process concerning said state legislative act.
In this respect, it is important to emphasize, firstly, that the Federal Government argues, in the public civil action in question, that the aforementioned state law was not received because it predates the new Constitution.
The non-reception of a pre-constitutional state act does not imply a declaration of its unconstitutionality – but rather the recognition of its pure and simple revocation, due to its material incompatibility with the current Constitution of the Republic, according to the established jurisprudential orientation of this Supreme Court (RTJ 145/339, Justice CELSO DE MELLO – RTJ 169/763, Justice PAULO BROSSARD, e.g.).
It can be seen, therefore, that the negative judgment of reception, in the case of pre-constitutional laws, is neither equivalent to nor reduced to the formulation of a judgment of unconstitutionality, considering the non-existence, in our legal system, of the phenomenon of supervening unconstitutionality (RTJ 99/544 – RTJ 154/739-740 – RTJ 166/426-427, e.g.).
As is known, "If the law deemed unconstitutional predates the Constitution, the argument of unconstitutionality is not applicable, but rather a simple verification of whether or not it was repealed by the Constitution itself" (RF 221/167 – RTJ 95/980 – RTJ 95/993 – RTJ 99/544, e.g.).
In any case, however, and even if such an obstacle could be overcome (which is alleged only "ad argumentandum"), even if the Union aimed, through the public civil action in question, at the "incidenter tantum" declaration of unconstitutionality of State Law No. 73/47, the act of the authority now being challenged would not imply usurpation of the jurisdiction of this Court.
Indeed, it cannot be ignored that incidental review of constitutionality is fully admissible in public civil actions, since the single judge has undeniable competence to, after resolving a preliminary issue, declare, unilaterally, the unconstitutionality of any acts of the Public Power:
"Declaratory action. Incidental declaration of unconstitutionality. Preliminary issue. The incidental review of constitutionality is required whenever the decision of the case demands it; the judge cannot rule on a law that he considers unconstitutional, but must declare it as a preliminary issue, in order to address the object of the request. Extraordinary appeal granted." (RTJ 97/1191, Justice RAFAEL MAYER, Rapporteur – emphasis added)
“PUBLIC CIVIL ACTION. INCIDENTAL CONSTITUTIONAL REVIEW. PREJUDICIAL QUESTION. POSSIBILITY. NO USURPATION OF THE SUPREME FEDERAL COURT'S COMPETENCE. – The Supreme Federal Court has recognized the legitimacy of using the public civil action as a suitable instrument for incidental review of constitutionality, through diffuse control, of any laws or acts of the Public Power, even when challenged in light of the Constitution of the Republic, provided that, in this collective process, the constitutional controversy, far from being the sole object of the claim, qualifies as a simple prejudicial question, indispensable to the resolution of the main dispute. Precedents. Doctrine.” (Rcl 1.733/SP, Rel. Min. CELSO DE MELLO, “in” Informativo/STF nº 212/2000)
I consider, however, the other basis on which the claimant supported its allegation of usurpation of the original jurisdiction of the Supreme Federal Court, enshrined in article 102, I, "f", of the Constitution of the Republic, to be extremely relevant, arguing, in this regard, the following (pages 04/06): "It is clear that the aforementioned lawsuit was filed by the UNION against ARPE, which is a State Autarchy. It is also observed that the lawsuit discusses a matter concerning the distribution of constitutional powers, which inevitably leads to a discussion concerning the 'federal pact'. The lawsuit filed by the UNION against a STATE AUTARCHY to discuss the unconstitutionality of a state law, for allegedly encroaching on the exclusive legislative competence of the UNION, must, as has been seen, be processed and judged by this Honorable Supreme Court. Since the lawsuit must be initiated, processed, and judged by this Honorable Court, its mere processing by a first-instance court already implies usurpation of competence, justifying the admissibility of this claim." (emphasis added)
The arguments presented here make it clear that the Federal Government is denying the State of Pernambuco – acting through one of its administrative instruments (ARPE) – the possibility of exercising the authority to operate lottery services, under the terms of State Law No. 73/1947, enacted at a time when the public lottery service could be validly carried out and executed at both the federal and state levels.
It was for this reason that I stated, in the opinion I delivered in the judgment of ADI 2.995/PE, of which I was the Rapporteur, that this state legislative decree, because it predates Decree-Law No. 204/67, "would legitimize, from this perspective, and on the part of this unit of the Federation, the establishment, by right, of the operation of lottery services."

I then emphasized in that judgment: “Indeed, the lottery service was established in the State of Pernambuco by State Law No. 73, of December 22, 1947, so much so that Article 4, I, of Law No. 12.343/2003, now challenged in this concentrated constitutional review, expressly mentions it. It is worth noting, at this point, that State Law No. 73/1947 was enacted before Decree-Law No. 204/67, meaning, therefore, that the aforementioned legislative act arose at a time when it was possible for the member state to operate lottery services. It is important to note that Decree-Law No. 204/67 itself – received by the current Constitution of the Republic – when establishing the Union's monopoly over the lottery service, preserved the situation of the then-existing state lotteries, establishing strict rules to govern them.” The operation, subject to the following terms:

Article 1. The operation of lotteries, as an exceptional derogation from the norms of Criminal Law, constitutes an exclusive public service of the Union, not subject to concession, and will only be permitted under the terms of this Decree-Law.
.....
Article 32. Maintaining the current situation, as set forth in this Decree-Law, the creation of state lotteries will no longer be permitted.
§ 1 The currently existing state lotteries may not increase their emissions, being limited to the quantities of tickets and series in effect on the date of publication of this Decree-Law.
.....
Article 33. Insofar as it does not conflict with the terms of this Decree-Law, state lotteries shall continue to be governed by Decree-Law No. 6.259, of February 10, 1944.' (emphasis added) (...).”
It seems to me, therefore, considering the valid enactment, by the State of Pernambuco, of Law No. 73/47, that the Federal Union nevertheless contests the legitimacy of the operation, by that federated unit, of the lottery service, refusing to admit the validity of the exercise, by said member State, of a competence that was recognized to it by the Federal Union itself, when issuing Decree-Law No. 204/67 (articles 32 and 33).
I believe that this situation of litigation is imbued with a high degree of potential federal conflict, since the Federal Union – regardless of the validity of its opposition – denies the member state in question the exercise of a competence that the latter claims for itself, in view of the historical context that emerges from the case in which the act that is the subject of this claim was committed.
I therefore foresee, at least in a preliminary assessment, the configuration, in this case, of a situation of possible disruption of federal harmony, which would trigger the application of the rule set forth in Article 102, I, "f", of the Constitution.
We know that this rule of jurisdiction confers upon this Court the eminent position of Court of the Federation, as already noted in several precedents of the Supreme Federal Court:
"FEDERAL CONFLICTS AND THE ROLE OF THE SUPREME FEDERAL COURT AS THE COURT OF THE FEDERATION. – The Constitution of the Republic confers upon the Supreme Federal Court the eminent position of Court of the Federation (CF, art. 102, I, 'f'), attributing to this Court, in such institutional capacity, the power to resolve controversies that, upon erupting within the Federal State, dangerously culminate in antagonizing the units that compose the Federation."
This important legal and institutional function of the Supreme Court imposes upon it the very serious duty of safeguarding the inviolability of the federative bond and ensuring the harmonious balance of political relations between the state entities that comprise the Brazilian Federation. The applicability of the rule enshrined in Article 102, I, 'f', of the Constitution extends to disputes whose offensive potential proves capable of undermining the values ​​that inform the fundamental principle governing the pact of the Federation in our legal system. Doctrine. Precedents.” (ACO 1.048-QO/RS, Justice CELSO DE MELLO, Full Court)
Hence the constant observation of doctrinal teaching (MANOEL GONÇALVES FERREIRA FILHO, “Comentários à Constituição Brasileira de 1988”, vol. 2/219-220, 1992, Saraiva), whose lesson, in highlighting this qualified constitutional competence of the Supreme Federal Court, emphasizes: "The role of the Supreme Federal Court as a balancing body of the federative system stands out here. Although belonging to the structure of the Union, the Supreme Court has a national character that enables it to decide, independently and impartially, the cases and conflicts in which the Union and any of the federated States are parties, in opposing camps." (emphasis added)
It is for this reason that the Supreme Federal Court, when interpreting the rule of competence inscribed in art. 102, I, “f”, of the Political Charter, proclaimed that “the constitutional provision invoked aims to safeguard the federative balance” (RTJ 81/330-331, Rel. Min. XAVIER DE ALBUQUERQUE), warning, therefore, that not any cause legitimizes the invocation of the aforementioned constitutional precept, but exclusively those controversies that may derive from situations characterizing federative conflict (RTJ 132/109 – RTJ 132/120).
This jurisprudential understanding demonstrates that the applicability of the rule enshrined in Article 102, I, "f", of the Political Charter is restricted solely to those disputes whose offensive potential proves capable of undermining the values ​​that inform the fundamental principle governing the pact of the Federation in our legal system.
The Plenary of the Supreme Federal Court, when examining ACO 765-QO/RJ, Rapporteur Justice MARCO AURÉLIO, in which a legal controversy arose regarding the alleged recognition that the Brazilian Post and Telegraph Company (ECT) has the constitutional prerogative of reciprocal tax immunity, declared itself originally competent to hear and judge the dispute, applying, for this purpose, the rule embodied in article 102, I, "f", of the Constitution of the Republic.

The constitutional statute, which forms the basis of the federal pact, establishes a delicate balance between the Union and local political entities, consolidated in a system of discrimination of state powers, resulting – considering the structural complexity of the federative model – in partial legal orders coordinated with each other, subordinated to the total community, which is the Federal State itself (cf. HANS KELSEN, commented by OA BANDEIRA DE MELLO, “Natureza Jurídica do Estado Federal”, “apud” GERALDO ATALIBA, “Estudos e Pareceres de Direito Tributário”, vol. 3/24-25, 1980, RT).

This sharing of powers, as is known, reflects one of the most expressive characteristics of the Federal State, whose constitutional order harmoniously regulates exclusive and concurrent powers, thus preserving the autonomy of the units that make up its legal-institutional structure, invested, for the purpose of the concrete exercise of normative attributions, with enumerated powers – which result, explicitly or implicitly, from the Fundamental Law itself – or, then, with residual or remaining powers.
The examination of the present claim – as already emphasized – reveals an apparent situation characterizing a federal conflict, since the controversy addressed in the public civil action brought by the Union against the claimant, a state-owned entity, fundamentally involves a discussion about the normative relationship between the Federal Union and the State of Pernambuco, in a context of evident conflict capable of disrupting harmony and affecting institutional coexistence within the Brazilian Federation.
The reasons I have just set forth are sufficient for me, even in a summary judgment, to acknowledge that the necessary conditions for granting the precautionary measure now submitted by the claimant are met in this case.
Therefore, and in a preliminary assessment, I grant the request for a preliminary injunction, in order to suspend, as a precautionary measure, the effectiveness of the decision issued by the esteemed magistrate who is now the defendant in these proceedings (Public Civil Action No. 2007.83.00.017870-1, 10th Federal Court of Recife/PE, Appendix, pp. 156/166), also suspending, until the final judgment of this claim, the proceedings in said judicial process.
Communicate this decision urgently, forwarding a copy of it to the esteemed judicial authority who is now named as the respondent.
2. I grant the request on pages 313/314, regarding the removal of the documents found on pages 24/272, since the esteemed judicial authority that forwarded them lacks the legitimacy to intervene in the present procedural relationship.
The items in question should be returned to their esteemed sender (pages 24/27).
Publish yourself.
Brasilia, 26 March 2008.
Minister CELSO DE MELLO
Relator