11/30/2023 – 6:43
Appointed by President Luiz Inácio Lula da Silva (PT) for a vacancy in the Federal Supreme Court (STF), the Minister of Justice, Flávio Dino, has already criticized the model of appointments of magistrates to the Superior Courts and pointed out the need to impose a external control for the Judiciary. In a dissertation to obtain his master’s degree defended in 2001, when he was a federal judge, Dino saw problems with the rules governing appointments to the courts.
The criticism, although discreet, appears in the text “Self-government and control of the Judiciary in Brazil”, presented by the then judge to obtain a master’s degree in the postgraduate program at the Federal University of Pernambuco (UFPE). At the time Dino wrote about the topic, the creation of the National Council of Justice (CNJ) was still under debate. O Estadão He contacted the Minister of Justice, but received no response until the publication of this text.
Democracy
Regarding the way in which ministers of the Superior Courts are nominated and appointed, Dino argued that a more democratic criterion should be adopted. According to the Minister of Justice, the possibilities of participation in filling vacancies that until today are decided by the President of the Republic should be expanded. Dino left comments about this process of choosing magistrates as a footnote to the text.
“There are those who see greater compatibility with the democratic regime in the system of free appointment of Court judges by the Heads of the Executive Branch, as they are directly elected, so that the choices made would ultimately reflect the popular will. This is, however, a purely formal vision, as it ignores the countless distortions that our political-electoral system has, especially the dissociation between the political-ideological program presented to voters and what is actually implemented”, wrote Dino.
‘Meditations’
According to him, the appointment made by a politician to a position in the Judiciary involves “many mediations” that cannot be forgotten. Among them he cites: “compensation to parliamentarians not re-elected, the need to seal party alliances, personal sympathies”.
For Dino, this nomination model “puts the value of judicial independence into the background, confusing it in absolute terms with corporatism and not seeing its importance in the Democratic Rule of Law”. “Between one extreme and the other, we believe that the best recruitment system provides, in the case of Superior Courts, some degree of participation by other State Powers, however with objective rules that limit their discretion, for example the establishment of percentages of vacancies aimed at members of the Judiciary, the Public Ministry, the faculty of legal courses at public universities, etc.”, suggested Dino in his dissertation.
The model criticized by Dino in 2001 is the same one from which he benefited this week, when he was nominated to the STF by Lula. To become minister of the Court, he will need to pass a hearing at the Senate’s Constitution and Justice Committee (CCJ) and be approved by more than half of the House’s plenary.
Crisis
In the dissertation, Dino describes that the Judiciary was facing crises of identity, image and performance. He considered that the judges’ decisions could be subject to criticism. “The mistaken popular saying according to which ‘judicial decisions are not discussed, they are complied with’ has progressively been abandoned, an expression of a sacralized view of the judicial function. Instead, decisions issued by the Brazilian Judiciary are intensely discussed in the media, which obviously does not mean that they should not be complied with – confusion that unfortunately sometimes occurs, especially among administrative agents”.
In the final part, Dino defended that the project to create the National Justice Council be adjusted so as not to allow the council to dismiss investigated judges. The final version, in force to this day, establishes that the maximum punishment imposed on a judge by the Council is compulsory retirement.
The information is from the newspaper The State of S. Paulo.
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