The dome of the Judiciary


*By Fábio Konder Comparato

A proposal to reformulate the STF by modifying its appellate jurisdiction and its composition.

To tell the truth, our Federal Supreme Court was born crippled and has been limping for more than a century. However, now the lameness begins to jeopardize the entire functioning of the state machine. The syndrome of the profound aggravation of this pathology occurred a little while ago, when the “guardian of the Constitution”, by just a tie-breaking vote and in two judgment sessions that consumed hours of discussion, decided that the fundamental norm of article 5, item LVII, the which cannot be revoked even by constitutional amendment, remains in force...

It is high time, therefore, to make the pathological diagnosis and start the therapeutic treatment immediately. The diagnosis of the disease, in my opinion, points to two main causes of the disease that affects our highest Court of Justice.

The first of these causes arose in the very genesis of the court, at the dawn of the so-called republican government in our country. Like federalism, the institution of the Federal Supreme Court was nothing but a mockery of the US Constitution. Two were the serious consequences of this political ape.

The first was the fact that no account was taken of the fundamental difference between the colonizing process in North America and Brazil. There, such process was parceled out; whence the idea of ​​coming together or gathering (it is the meaning of foederatio in Latin) the different colonies into a single state. Brazil, quite the contrary, from the Discovery to the extinction of the monarchy at the end of the XNUMXth century, has always been geopolitically unitary.

The obvious consequence of this imitative simulacrum was that, until today, the colossal socioeconomic inequality between the states of the Brazilian federation (not to mention the municipalities) falls on the shoulders of the so-called Union or central government.

The second serious consequence of this gross political imitation concerns the organization of the Judiciary. I believe that no jurist, with a minimum of knowledge of comparative law, ignores the fundamental historical difference between common law e civil law. In the first system, the Judiciary bodies can create legal norms, while in the second they are limited to interpreting written law, starting with the Constitution. It seems that our Supreme Court today seems inclined to change its system.

It turns out that among us, the Lusitanian cultural heritage led us to create a procedural law filled with resources. In the continental-European legal tradition, both in civil and criminal proceedings, litigants have two instances of appeal.

Among us, by virtue of the Portuguese procedural tradition, we ended up creating no less than four procedural instances: the first, of the judge of singular right; the second, the appellate court, state or federal; the third, from the Superior Court of Justice; and finally the last one, from the Federal Supreme Court.

This, according to the Federal Constitution, originally processes and judges no less than 16 (sixteen) types of actions; judges on ordinary appeal the habeas corpus, the writ of mandamus, the habeas date and the writ of injunction, decided in a single instance by the Superior Courts, if the decision is negative, in addition to the political crime; and, finally, in an extraordinary appeal, three types of judgments considered unconstitutional, in addition to decisions that deem valid local law contested in the face of federal law.

In 2013, Deputy Luiza Erundina presented Proposal for Constitutional Amendment No. 275 to the Chamber, drafted by me, whose purpose was the reorganization of the Federal Supreme Court and the Superior Court of Justice, with a drastic reduction of the STF's appellate jurisdiction. Today, I think that such PEC could be modified, with the suppression of all appellate jurisdiction of the Supreme Court.

Furthermore, the aforementioned Proposal completely reorganizes the composition of the STF. Although the current Ministers will remain in office until their retirement, the members of the Court will be chosen by the National Congress, and not by the President of the Republic, from triple lists of candidates by the National Council of Justice, the National Council of the Public Ministry and the Brazilian Bar Association.

* Fabio Konder Comparato Professor Emeritus at the Faculty of Law of the University of São Paulo, Doctor Honoris Causa from the University of Coimbra.

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