supreme torpor

George Rouault, The Three Judges, c.1936


The Supreme has given itself a role that is not, and never has been, in any of our Constitutions since the beginning of the Republic

I begin by explaining to readers not initiated into legal matters that it all started on 16/03/2015, when the new Code of Civil Procedure was approved. As president of the Commission that drafted it, Luiz Fux - then minister of the STJ and, today, of the Supreme Court. One of the most welcomed points in the new Code was precisely the greater extension given to art. 144 (in the previous CPC, art. 134), item VIII. That speaks of impediments and suspicion of judges, judges and ministers of the STJ and the Supreme Court, in cases “in which he appears as a client of the law firm of his spouse, partner or relative, consanguineous or similar, in a direct or collateral line, up to the third grade”.

The Code, therefore, makes explicit a rule that, strictly speaking, would not even need to be enacted into law. Given that, clearly, a minister (I take, as an example, only one category on each side) cannot judge a case proposed to the court by his own wife. On the basis of an elementary principle of decency, I need go no further.

But times have changed, gentlemen. And today, the Supreme has given itself a role that is not, and never was, in any of our Constitutions since the beginning of the Republic – that of being a kind of Moderating Power of the country. Reproducing the one exercised, in the times of the Empire, by Dom Pedro II. An absolute power without any limits - neither in the ordinary laws, nor in the Constitution, nor in the conscience of the citizens. And this they confess without any shame.

Minister Luiz Fux's words: “As the Supreme Court, we are editors of an entire country”. Or, even more explicitly, in the words of Justice Dias Toffoli: “We already have a semi-presidential system, with the control of the Moderating Power that is currently exercised by the Federal Supreme Court”. For this reason, for some time now, it no longer respects Article 2 of this Constitution, which states that the Legislative, Executive and Judiciary must be “independent and harmonious”. And so, without major concerns, it judges, legislates and executes (administers the country).

In 2018, the Association of Brazilian Magistrates (AMB), believe me, requested the declaration of the unconstitutionality of such item VIII - the one that prohibits ministers from judging cases proposed by their wives. At the request of whom it is not known. On the grounds that the rule “is only suitable for troubling some magistrates”. For the AMB, not accepting that husbands judge cases proposed by their wives would be troubling some judges. Hearings, Chamber of Deputies, Senate, Advocacy General of the Union, Attorney General of the Republic and the Presidency of the Republic said the obvious. They did not see any unconstitutionality in the rule. Our National OAB, at that moment and as if nailed to Santa Cruz, remained predictably silent. Minister Edson Fachin, rapporteur of the case, accompanied the understanding of all of them. For him, no doubt rightly so, the rule was created “to ensure a fair and impartial trial”.

It so happens that Minister Gilmar Mendes rose up and opened a divergence, arguing that his cabinet “wastes time in verifying the impediments, failing to assist in the judgment of the causes”. Without explaining how this fact means any violation of the Constitution. Economist Bruno Brandão, from Transparência Internacional, asked for the floor to contradict him, saying it was a “regrettable” argument, because “private companies have been doing, for years, this type of checking of corporate ties, in an automated way”.

Gilmar Mendes completes, saying that the rule can “stain the reputation of the judge” and “diminish not only the person of the judge, but the image of the Judiciary”. Maybe it's the other way around, gentlemen. Ministers judging cases proposed by their wives tarnish the reputation of the Judiciary.

As if that were not enough, the brave minister of the house, Cristiano Zanin, had the courage to justify his vote by saying that the offside rule “offends freedom of initiative and the right to work and subsistence”. Apart from the lack of respect for the Portuguese language, can you believe it? The new minister is not concerned that it is clearly immoral for husbands to judge cases proposed by their wives. Because, according to him, this “offends freedom of initiative”. Just laughing.

In the Virtual Plenary vote, the two were joined by Alexandre de Moraes, André Mendonça, Kassio Nunes Marques, Dias Toffoli and Luiz Fux himself ‒ who, when drafting the new Code of Civil Procedure, considered this rule moralizing. While, now, voted against. Just to remember Alexandre de Moraes, Gilmar Mendes, Dias Toffoli and Cristiano Zanin have women heading offices, among the most expensive in the country, with cases in the Federal Supreme Court.

Former STJ minister Eliana Calmon, without mincing words, said: “The window has now been wide open by the Supreme Court. Ministers earn very little. Lawyers from large offices earn much more. And, naturally, there is a family division. That is, the woman has the economic power, in the offices; and ministers retain political power within the Judiciary. In this way they (husband and wife) earn a lot and have political power in their hands. A perfect mating." In the end, she summed up herself: “They are causing the demoralization of the Judiciary”. Which is serious because, “without the Judiciary, we don't have Democracy”.

Going back to the beginning of the text, as if walking a string without an end, regarding this (yet another) decision by the Supreme Court, Balzac would certainly say it was “immorality”. I won't go that far, because of education. But I say, with a clear conscience, that this is not right.

*Jose Paulo Cavalcanti, jurist and writer, he was Minister of Justice in the government of José Sarney. He occupies chair 39 of the Brazilian Academy of Letters (ABL).

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