By FÁBIO KONDER COMPARATIVE*

Who to turn to, when the highest court in the country does not fulfill its elementary task of judging the cases submitted to it?

Of the three Powers of the Modern State, the Judiciary emerged last and perhaps, because of this, its institutional evolution remains unfinished.

This is what, in a way, explains the fact that it appears in a large number of countries, including ours, as a strange element in the political framework. For the great mass, political life is confined to the relationship between those who have the power to command and those who are constrained to obey; the Head of Government with all his advisers – including judges and legislators – on the one hand, and the people on the other.

It goes without saying that such a reality represents the complete negation of the republican and democratic model, since the common good of the people (the res publica in the original sense of the Roman expression) is always subject to particular interests, and the people never effectively dispose of supreme political power. Incidentally, if he had it, he would not know how to exercise it, preferring to receive alms – sorry! – an “emergency aid”.

This is what happens in this dear country; with the aggravating circumstance that, when we think of reforming institutions, the last step that comes to mind is changing the configuration of the judicial system.

As no one ignores, the great guideline of the proclamation of the Brazilian republic, at the end of the XNUMXth century, was to slavishly copy North American political institutions, and one of these institutional mockery was the creation of the Federal Supreme Court, in the image of the Supreme Court of the States United.

Under the terms of the US Constitution (Article Three, first paragraph), the judges who make up this Court are maintained in their functions "during good behavior”, which ended up being interpreted to mean “for the rest of their lives”; unless they suffer impeachment, resign or retire. Now, to date, only one justice of the Supreme Court of the United States (Samuel Chase in 1804) has suffered impeachment in the House of Representatives, but ended up being acquitted in the Senate. That is, the magistrates of that highest Court are irresponsible, in the legal sense of the word.

In Brazil the same thing happens; which does not mean, in any way, that the magistrates of these two supreme courts are unreasonable or incompetent.

The fact is that until today, with only one exception, no Minister of our Supreme Court has had his nomination rejected by the Senate. The exception occurred when Marshal Floriano Peixoto decided to appoint Doctor Barata Ribeiro, who was his personal physician and remained in the position for ten months, to fill a vacancy on that court. Literally, there was no breach of the Constitution, as the Charter of 1891 required that those appointed to that office have “remarkable knowledge and reputation”; what no one could deny to Dr. Barata Ribeiro. It was only due to the Constitutional Amendment of 1926, and due to this episode, that it was decided to add the adjective “legal” to the expression “remarkable knowledge”.

Well, with Constitutional Amendment No. 45 of 2004, which established the National Council of Justice, it was imagined that from now on the Federal Supreme Court – like all other courts – would be controlled by that Council. But four months later, when judging direct action of unconstitutionality nº 3367, our Supreme Court decided, purely and simply, that “the National Council of Justice has no competence over the Federal Supreme Court and its ministers”. Point and that's it.

The question then arises: who to turn to, when the highest court in the country does not fulfill its elementary task of judging the cases submitted to it?

To illustrate the question, I cite just one case, in which I had the honor of representing the Federal Council of the Brazilian Bar Association. It was the allegation of non-compliance with fundamental precept nº 153 in which, after the end of the totalitarian regime established in 1964, the amnesty that the military leaders granted themselves was questioned, regarding the multiple crimes against humanity, committed by them for more than twenty years.

The Federal Supreme Court, against only the two honorable votes of the eminent Ministers Ayres Britto and Ricardo Lewandowski, dismissed the action. The court “forgot”, however, to recognize that the various crimes of destruction, subtraction or concealment of a corpse, then committed, are permanent (Penal Code, art. 111, item III); that is, the criminal statute of limitations only begins to run when the corpses are found and identified.

For this reason, after the judgment that judged the aforementioned ADPF nº 2012 was published in March 153, the Federal Council of the OAB filed an appeal for declaratory embargoes against this decisional omission. The appeal was distributed to the case's rapporteur who, retiring, was replaced by Minister Luiz Fux. According to the Internal Rules of the Federal Supreme Court (art. 337, § 2), once an appeal for declaratory embargoes has been filed, the rapporteur of the case must submit it for judgment in the first ordinary session of the court following that. The rapporteur, however, who currently occupies the presidency of the Court, until today – no less than eight and a half years after the appeal was filed – still has not complied with the rule of the Court's Internal Regulations, nor will he certainly do so.

As can be seen, the body to which it is responsible, “primarily, to guard the Constitution”, has been operating since its foundation, more than a century ago, exempt from any guard.

* Fabio Konder Comparato He is Professor Emeritus at the Faculty of Law of the University of São Paulo (USP) and Doctor Honoris Causa of the University of Coimbra. Author, among other books, of the capitalist civilization(Hail).