A popular Brazilian proverb says that “In a house where it lacks bread, people fight and no one is right”. It is not exactly today’s news that the idea seems to be applicable to the Brazilian Federal Supreme Court, not only from the internal perspective of the Court and the relationship among its members, but also concerning the society and its relationship with the highest body of the judiciary.
In this context, the Court and its members ended up having an apparently unprecedented space in the different media, and each one has their own opinions – maybe inspired by the legal proceedings, the political theory, by another theoretical framework or by a simple personal opinion – about what really happens in there. There are academic criticisms and defenses which are well illustrated by the article written by professor Conrado Hübner Mendes, and the reply he received from professor (and also Justice) Luis Roberto Barroso, both recently published by Folha de São Paulo. There are also less technical attacks, and there are those which, certainly, are not civilized at all as it has often been seen in the so-called social networks.
The most recent incident happened during a session scheduled to judge a writ of habeas corpus, whose merits encompassed the stormy debate about enforcing a decision soon after its judgment by the local courts (state or federal). That session was marked by a series of occurrences.
First, because although the discussion impersonally gravitates towards a legal issue, it would be useless to conceal something evident, which is, to ignore the petitioner’s social and political relevance. Second, the controversial issue of the magistrates’ extra bonus designed for housing expenses had been removed of the docket in the previous session, and that decision was justified by the fact that the case was intended to be redirected to a mediation attempt, as requested by the judges’ representative body. Third, still in the same previous session, there was a more than heated argument between two of the Justices, with strong mutual attacks. Fourth, after a lengthy debate on the admissibility of the habeas corpus, the session at the Court was interrupted without any decision about the matter. However, all that was not enough. The fact that one of the Justices needed to leave the session because of a personal appointment ended up being of great weight, which, added to the unlucky fact that because of a holiday in the following week, the session was postponed to the beginning of the following month. That resulted in the granting of an injunction in favor of the petitioner until the forthcoming session could be resumed.
Actually, the events above were not insignificant, and strong reactions would be expected, some of which ended up in mockery. In this context – which is not exactly new, but seems to become even more delicate every day – it seems reasonable to ask: is it possible to say (and who could do so) who is right?
Having no intentions of answering the question, some considerations – on a constructive basis – can be made.
Without specifically willing to make any defenses, it is necessary to consider that the Brazilian Federal Supreme Court has been under enormous pressure, and the expectations that citizens have towards that Court well reflect the situation in the country – which has plunged into a political crisis, which, to a great extent, is a result of the anti-corruption measures. Therefore, the decisions of the Brazilian Federal Supreme Court have always been, to a greater or lesser extent, related – either because of their fundamentals (explicitly or not), or because of their consequences – to politics, and there is no doubt about it. However, nowadays, precisely because of the nexus between the performance of the judiciary (in particular the so-called “Operation Car Wash”) and the country’s political situation, especially in the year of a presidential election and the election of the federal representatives in the legislative branch, the legal matters run the risk of being superseded by the political issues – not to mention the economic repercussions that result from all this.
In this context, each Justice makes an attempt to give an adequate response to his or her own convictions. However, the heat of the country’s political situation has taken over most of the Court (we should repeat that this is not something recent, and the incidents that happened by the time of the “mensalão” scandal, the so-called case of the “big monthly” allowance, may well confirm this). Thus, all the facts together seem to explain a certain imbalance – which sometimes slides into complete inadequacy – that has taken over some of the magistrates. Under a gaze as impartial as possible, it seems reasonable to admit that each of them has their own reasons. Their points of view – in spite of the undeniable lack of unity of the body, and the inadequate attitudes in the plenary (as well as outside of it) – are almost all justifiable, although people do not agree with one or another attitude. Divergence is a usual and commonplace fact in judgments rendered by a panel of judges. The question is how the Justices have dealt with the dissensions that, as it was aforementioned, started to happen in an atmosphere of political confrontation – sometimes of street fighting.
In short, and once again not taking anyone’s part, it is necessary to consider that the situation experienced by the Brazilian Federal Supreme Court, far from being ideal, is comprehensible because of the country’s current situation.
It does not mean that serious misunderstandings fail to exist, which makes things – that are already very challenging – even more difficult. Using popular words, it might be possible to talk about a kind of “friendly fire”…
In order to illustrate, in the context of a series of demands from different segments of society, the fact that the issue of the magistrates’ extra bonus aimed at housing expenses had been removed of the docket, objectively speaking, meant a significant fall in the expectations. Worse than that, the reason for the suspension of the topic, especially because of the bad atmosphere that was created around the subject, contributed to the situation of frustration, either because it postponed the solution for the problem indefinitely, or because it involves a matter at least questionable: would there be a possibility for a consensual or even arbitral procedure, or can the judgment come only from the part of the state and be adjudicated?
Moreover, it is really difficult for a layman to understand how one could have devoted so much time to the topic of the admissibility of the remedy without being able to approach the controversy deeply. And this is what, confirming what has been mentioned above, becomes exacerbated if we consider who the habeas corpus is in favor of. In this context, the granting of the injunction – which does not cause any surprise from the legal perspective – ends up being received with suspicion, and the injunction itself gives rise to the conjectures – as well as to the uncertainties arising thereof – concerning the ending that will come out.
It is also hard for the “ordinary” citizen to understand that in the middle of such a thorough discussion for the country, a member of the Court may leave to meet a personal appointment; in the head of the “average” human being – and this does not sound absurd at all – there could not be a greater priority than the judgment itself.
It would be unfair and hypocritical to attack the Justices for having other appointments, either academic or related to the teaching of Law. The society, by means of the different institutions that represent it, competes for the presence of those magistrates in meetings and symposia, for which they effectively give relevant contribution. Nor would it be correct to consider that the exit of a judge would be the end of the session, which could well have continued. If, in that case, the session was over, it was the Chief Justice’s decision, who considered – for good or for bad – the condition of all the other Justices. However, in such a difficult and heated moment, the frustration generated is also understandable: a result of the high expectation from the society towards the civil servants who voluntarily were willing to assume the responsibilities that they did, and who, as they are well aware, are in the eye of the hurricane. At least, if there had been communication and coordination among the Justices – a task usually expected from the Chief Justice – there could have been an effort to have the session started earlier.
Before someone needs to jump to the defense of the distinguished members of the Brazilian Federal Supreme Court, it would be adequate that they themselves, with the courage and humility which are typical of the great human capacities, would do so – not only by means of words, but also by making use of concrete actions.