By GEORGHIO A. TOMELIN*
The interpretation that the courts have made of the mechanisms for accessing rights is a reflection of a crab society
The crab is known to be an aggressive animal that walks sideways. We avoid eating crab at the end of the year because it moves sideways. And birds are not eaten at New Year's Eve either, as they scratch backwards. In the new year we want to show that we are moving forward. A new time must represent a new cycle, a journey forward.
Artificial intelligence is a new year every day. The technological turns of the industrial revolution today revolve in minutes. The robots and their mechanisms work non-stop, from sunrise to sunset. The impacts of this new and fast technology are felt in all areas of knowledge in which deciding is the central point.
The improvement of virtual robots has expanded the decision mechanisms. If fifty years ago training to decide only involved reading books, we can say that it has been more than a decade since we have judges trained with the reading of exclusively virtual mechanisms for accessing information. It is also noteworthy that most people function like well-trained parrots, hence the big problem the academy of sciences has in blocking intellectual psittacy and its petty plagiarism and content theft. Citations of citations create self-reported truths in various areas of knowledge.
And worse: we now have artificial intelligence (AI), which is a super well-trained parrot. In this respect, artificial intelligence will work much better than most people. Human intellectual activities are initially developed as discoveries, as sometimes random discoveries, but in front of someone with the ability to interpret. In a second moment, such findings become routines that will be repeated based on action protocols. And then, for such routines whose path is already traced, training, with checks and rechecks, will guarantee the proper functioning of the brain that decides, be it human or digital.
When the microscope for clinical analysis appeared, for decades only doctors, biologists and trained biochemists were able to interpret and obtain results. Today the database and images are so large that most of the results are obtained with the digital reading of the body image analyzed by a computer. Artificial intelligence was incorporating the average results and opening special algorithms for the variants. Artificial Intelligence works better than the human brain, which may not think of an infrequent variant. The digital reading, in a fraction of a millisecond, goes through all the hypotheses, even with a small chance of being there.
In law, the same phenomenon occurred. As an individual science of decision, the ability to decide in the courts was first expanded with “human” advisory services, based on criteria that were hierarchically supervised by the judicial authorities, and then leveraged with the use of information technology. The same happened in offices and ministerial bodies: digital minutes circulated for the most frequent cases. Legal psittacism has taken over an important part of legal operators, with no time to read or understand specific problems.
It so happens that information technology and digital facilities have also increased the volume of processes, which has made it impossible to read them in detail. As a consequence, a judiciary-dromocracy was installed among us: the idea that speed should come first. We then have a new vital problem: petitioning, judging and executing huge processes before the subject of rights dies. Possible solutions to this problem: either expanding the number of judges and advisors, or reducing processes requiring executive summaries, or using robotic mechanisms for selecting procedural data. And of course the robots won.
In an intermediate stage of castration, the Superior Court of Justice had already issued the infamous Precedent 7: “The pretense of a simple reexamination of the evidence does not give rise to a special appeal”. In 1990, shortly after the 1988 Federal Constitution, the STJ edited a summary that aimed precisely at reducing the number of cases that reached the Court, legal relationships that amounted to the mere re-discussion of facts and without controversy about the content or application of the law. It so happens that, over the years, the courts took charge of erasing the word “simple”, which was there in the text of the summary with the meaning of “exclusive reanalysis of the facts” (and together eliminated the debate on the federal law, textual competence of the STJ in the CF). But all law is based on facts and, therefore, there is no Special Appeal that does not come up with some discussion about facts (which is not to be confused with the few special appeals that ask only and solely for the simple re-examination of evidence).
The Constitution of the Republic granted the STJ, in its art. 105, the reanalysis as a court of cassation of second-degree decisions that contradict or deny the validity of the federal law. The matters of competence of federal law are in art. 22 of the same Constitution, and all of them involve the application of the law on the facts of life. Thus, the constitutional competence of the STJ is to define the correct application of federal laws on these facts of life. But Precedent 7, rightly, says that the “simple reexamination of the evidence” should not be raised as a Special Appeal. The Precedent does not say and could not say: “the applicable federal law on facts is not within the scope of the jurisdiction of the STJ provided for in art. 105, inc. III, paragraph 'a' of the CF, for all matters of art. 22 of CF”. And it does not say, as this would constitute fraud to the Constitution, since the constitutional competence of the courts is inalienable.
There were then several steps to the annihilation of voted rights. First: a summary says that the simple review of facts does not give access to the STJ. Second: the courts in prior admissibility and the STJ in subsequent filtering interpret that any discussion that refers to facts will deserve the deaf ears of the special instance. Third: robots are used to digitally read the texts of the resources. Fourth: automatic decisions are produced (with the support of digital tools) rejecting the raising or judgment of appeals that do not intend to reinterpret the federal law that covered facts of life (whose evidence the appellant accepted and does not want to reexamine). The appellant does not want to review the evidence, but only the legal qualification given to the case by the second degree court when it is out of step with the legal text.
A fifth and sixth castration mechanisms need to be considered. The practice of understanding that the legislated right is not what is in the laws in force was created. The legislated law becomes what the second degree court says, in its decision, that the law in force would be. Thus, it is not enough to have good law by your side to gain access to the STJ. It is also necessary to have a good-right denied, and for the second-degree court to say that such alleged-good-right would be a bad-right, because if the court says nothing about the law being debated in the first degree, everything will happen. as if the national congress had never voted on the law in question.
That is to say, whether the law exists or not (whether it is a good or a bad law) no longer depends on the representatives of the people, but on the judgment in the second degree textually denying the law (and there is no embargo or pre-questioning that resolves this) , otherwise the norm will not even be evaluated by Brasilia. It can be seen, then, that this fifth mechanism of castration unfolds into a sixth mechanism: the courts, below the STF, trample the competence of the Constitutional Court to remove norms from the system, diminishing the impact of such norms as if they did not even exist.
The final blow to rights now comes from resource reading robots. The robotic routine is fed by searching for the words proof, reexamination, facts, factual, etc. That is, it is enough for the appellant to try to say that it is not a case of application of Precedent 7 that it will be applied right there (as La Fontaine would say: “it is on the way to avoid the catastrophe that you will find your destiny”) . Precedent 7 became an “Amendment to the Constitution”, changing the content of its art. 105. The interpretation that the courts have made of the mechanisms for accessing rights is a reflection of a crab society that may even be going backwards digitally. And worse: that it shrugs off the norms voted by the representatives of the people. Such a system needs urgent revision. Either the courts are expanded so that they fulfill their constitutional function or else the entire judicial system of access to rights will be delegitimized.
Originally published on the portal Conjur.
*Georghio A. Tomelin, lawyer, holds a doctorate in State law from USP and a doctorate in philosophy from PUC-SP. Professor of the graduate course in law at UNISA.
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