Interministerial ordinance that suspended the closed period is unconstitutional

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By a majority, the plenary of the Federal Supreme Court, in a virtual session, ruled the Interministerial Ordinance 192/2015 unconstitutional, which suspended the closed period for 120 days (temporary prohibition of fishing activities for the preservation of species). The decision was made in the joint judgment of ADI 5.447 and ADPF 389.

The ordinance had been suspended in March 2016 in an injunction granted by the rapporteur of the actions, Minister Luís Roberto Barroso. At the ADI, then president Dilma Rousseff questioned Legislative Decree 293/2015, which stopped the effects of the ordinance and reinstated the closed period. At ADPF, the National Confederation of Fishermen and Aquaculturists (CNPA) challenged the validity of the standard.

tax reasons
In his vote, followed by the majority, Minister Roberto Barroso affirms that, in the technical note from the Ministry of the Environment that served as the basis for the ordinance, there is no environmental basis. According to him, the document brings strictly fiscal considerations on the number of beneficiaries of closed insurance in 2014 and on the high total amount spent on this payment.

“This fact reinforces the impression that arguments of a fiscal nature had a great influence on the decision to suspend the closed season”, he says. The rapporteur also points out that there was no validation of the suspension of closed season with the scientific community or debate with the Permanent Management Committees for the Sustainable Use of Fishery Resources, as provided for in the technical note.

“There are, therefore, strong indications that the environmental reasons were not those that predominated in the decision to suspend the closed season”, he says.

Precaution
The minister also pointed out that the measure was based on the mere suspicion or possibility that, in some cases, the suspension of fishing was no longer necessary. "When in doubt, the protection was suspended from the outset, without any safe assessment as to its effective unnecessaryness or as to the consequences on the volume of fish in the localities and on the food security of the population", he emphasizes.

For the rapporteur, according to the constitutional principle of precaution, which governs the Environmental Law, in case of doubt as to the risk of damage, the Public Authorities must act in such a way as to protect the environment and not release potentially harmful activity.

"Therefore, given insufficient data and uncertainties as to the adequacy of the closed season, the public authority is obliged to maintain it, until a technical study objectively proves the unnecessary suspension of fishing in the reproduction period ”, he maintains.

frauds
Minister Roberto Barroso also highlighted that the Presidency of the Republic did not bring objective data that showed evidence of the occurrence of fraud in proportions that could justify the extreme decision to simply suspend the payment of closed insurance in more than ten regions/species.

Minister Alexandre de Moraes was defeated, who judged the actions to be harmed. Regarding the modulation of the effects of the decision proposed by the rapporteur, the quorum of 2/3 provided for in Law 9,868/1999 was not reached.