Since 2015 more than twenty impeachment petitions of Supreme Court justices have been filed in the Federal Senate
The Federal Supreme Court (STF) has never been in such evidence, whether due to the alleged judicial activism of the Court, which has been encroaching more and more in discussions within the scope of the legislative branch, whether due to controversial interpretations of the law, such as the case of the recent ruling that ordinary crimes associated with the electoral process should be sent to the Electoral Courts. Consequently, justices, their attitudes, and political associations, have become more exposed, resulting in more petitions for them to retire from their offices.
Since 2015 more than twenty impeachment petitions of Supreme Court justices have been filed in the Federal Senate. The record-holder is Gilmar Mendes, who added another one to his total in the last few days: a group of attorneys, led by jurist Modesto Carvalhosa, maintains that the judge has been exercising political-partisan activities and practices incompatible to the honor, dignity, and decorum of the functions of a Supreme Court justice. Carvalhosa also filed an impeachment petition against Ricardo Lewandowski in December 2018, after an episode in which the justice had a verbal argument with a passenger during a commercial flight. So far, none of these petitions has been accepted by the Senate. But, if one of them were to be, how would it work?
The impeachment proceedings are ruled by Law 1,079/1950, which also regulates the impeachment of the President of the Republic and other public agents. Regarding STF justices, impeachable offenses are contemplated in articles 39 and 39-A, and include, among other reproachable offenses, acts such as the judge entering a judgment when, by law, he is considered to have a conflict of interest or impediment, as well as the notorious actions incompatible with the honor, dignity, and decorum inherent to his functions.
Roberto Dias, a professor of Constitutional Law at FGV-SP, explains that any citizen may file the petition, even though the jurisdiction to analyze each request belongs with the Federal Senate.
“The petition is received by the Senate’s directing board, and must be read in the following session and sent to a special committee [formed exceptionally for each case], which will then state their opinion on the petition. Afterward, these committees have a 10-day deadline to decide on whether [the petition] will be accepted or not,” he says, reminding that, since such as process has never been tried before in Brazil, there’s no way of stating if the deadlines provided by law are, indeed, respected.
The decision of the committee is then read in a session of the Senate, and sent to a voting. If it obtains a majority vote of the senators, it is considered approved – otherwise, it is shelved. If the petition is considered worthy of deliberation, the accused received a copy of the document, to provide his answers within 10 days. Once this deadline is over, and with the answer of the accused justice in their hands, the committee gathers to provide a new ruling on the validity (or not) of the accusation. From that moment on, the fact-finding stage begins, when evidence is produced and presented, both by the defense and by the accusation. Once this stage is over, the commission presents a new ruling, approving the motion if they are able to obtain a simple majority of the members of parliament in an open vote. If the House decided to give the go-ahead to the impeachment process, the Supreme Court must be notified at once, as well as the plaintiff and the defendant. The justice is then suspended from his activities until the final decision, and loses one-third of his salary.
From then on, the Senate starts to function as a “court” for the trial of the justice, with sessions headed by the Federal Supreme Court president – if he is the one being tried, his legal substitute presides the sessions. During this stage, witnesses are inquired publicly, and there is an oral debate, with rebuttals and rejoinders, so that, afterward, the senators may decide. Once the debate is over, the president of the Supreme Court should draft a short report and sent the case to a new voting, which once again should be nominal, and present the question: “should justice [name of the justice], accused of the crime of [type of crime], be sentenced to the loss of his office?” The answer may only be “yes” or “no”, and his conviction requires two-thirds of the votes of all senators. If he is acquitted, the justice then is rewarded, retroactively, the payment of all salaries previously suspended.
A professor at the University of São Paulo Law School and attorney at Nelson Wilians & Advogados Associados, Maristela Basso says the possibility of an impeachment petition being presented by any citizen demonstrates the people has the mechanisms to impose checks on a public agent. Even though no petition has yet being reached an advanced stage in the judicial sphere, the professor claimed many justices have suffered a “moral impeachment”.
Some of these judges can no longer walk the streets, or travel by plane and be left alone. Morally, they have already been [impeached]. Is there also a need for a judicial impeachment? Considering these bureaucratic hurdles, there is this moral process. This street trial is much more wearisome and embarrassing,” she says.
A researcher in the area of International Law, she says she doesn’t remember any recent case abroad of a Supreme Court justice being impeached because, according to Maristela, “many of them choose to renounce before their trial.” One such example is the former president of the Peruvian Supreme Court, Duberlí Rodríguez, who presented in July 2018 an “irrevocable renunciation” after seeing himself entangled in a corruption scandal.
For the FGV-SP Law professor, this “low moral ground” of STF justices is attached to an unpopularity inherent to the office. First of all, because the Federal Supreme Court has as one of its main prerogatives the countermajoritarian function. According to Roberto Dias, this means that, since they are guardians of the Federal Constitution and the minorities, the Court often makes decisions which displease most of the society, and that generates a natural discomfort.
Another factor which contributes for the growing number of impeachment requests of Supreme Court justices recently filed in the Senate, in Dias’ view, is that Brazil is undergoing a moment of severe political and institutional tension, in which political players, in an opportunist way, have been trying to undermine the power of the Supreme Court. He mentions as such examples the federal deputies who, in late February, have requested the impeachment of justices who had voted in favor of the criminalization of homophobia. In the words of the FGV-SP professor, this is an “attempt to intimidate [the justices who still have to vote], something reprehensible in a democracy.”
According to Dias, no legal process has been advanced because all accusations lack concrete evidence of partiality. It is necessary to have a piece of cabal evidence, a definitive one, indicating this kind of conduct, such as email exchanges or phone calls. For him, what we have seen so far are merely very subjective allegations.
One deciding for many
A large amount of new impeachment petitions of STF justices follows another tendency of the Court registered in the latest years: monocratic decisions. In 2017, according to data from the National Justice Council (CNJ), out of 26.5 thousand adjudications upon the merits held by the court, 13.6 thousand (51.3 percent of the total) have been held by a single minister, without the participation of the rest of the Supreme Court members.
When the Supreme Court ignores collegiate decisions, which are a distinguishing mark of a court, it generates instability in the court precedents, since while in specific moments the sentence may be one, in others it may be decided in a completely different way, depending on the justice who is responsible for trying the case.
At the same time, the highest court in the country receives daily a very high number of lawsuits, which explains the fact that the Court often has to try issues which seem useless to most of the society, like the 1987 Brazilian Soccer Championship title. It would be unreasonable, therefore, to demand that every process should be tried on the Supreme Court floor. Justices simply could not handle it. Shouldn’t it be more interesting to make it harder for lawsuits coming from inferior instances to reach the Supreme Court?
Professor Roberto Dias says that there already are mechanisms in place trying to slow down the number of lawsuits reaching the Supreme Court, such as the issue of general repercussion and the binding precedents, when reiterated decisions create a binding to be followed by other instances. It would be necessary, however, to improve such mechanisms, and to make them more efficient, so that the Supreme Court’s agenda would address only the most relevant issues to the country.
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O Supremo Tribunal Federal (STF) nunca esteve tão em foco, seja devido ao alegado ativismo judicial da Corte, que adentraria cada vez mais em discussões da seara do Legislativo, seja por conta de interpretações polêmicas da lei, caso da recente decisão de que crimes comuns correlacionados a delitos eleitorais devem ser remetidos à Justiça Eleitoral. Consequentemente, os ministros, com suas atitudes e ligações políticas, ficam mais expostos, o que resulta em pedidos para que alguns deles se retirem do cargo.