“The Toffoli Factor”: a Cautionary Tale From Brazil | Rio Times

Opinion, by Michael Royster

SÃO PAULO, BRAZIL – In 1974, Paraguayan author Augusto Roa Bastos published a novel, whose title in English was “I, the Supreme”.  The book’s central character, a 19^th century dictator, refers to himself as “El Supremo”, and believes himself to be above all power and history: “I don’t write history. I make it. I can remake it as I please…”

Fast forward to present-day Brasília, where the actions of Supreme Court (STF) Justices have called into question the legitimacy of the Court to be Brazil’s final arbiter of justice.  To paraphrase Roa Bastos, many STF Justices believe their task is not to write history, but to make it or remake it, as they please.

The Toffoli Troubles

Presiding Justice Dias Toffoli has recently given three examples of “I-the-Supreme” behavior:

1) he ordered an in-house investigation into threats made online against STF Justices; 2) he ordered online posts mentioning him in connection with a Lava-Jato investigation to be taken down from the internet forthwith; and 3)  he publicly agreed to a “pact” between the several branches of government, after meeting the presidents of the Chamber of Deputies, Senate and the Republic.

First, the investigation. According to Toffoli, the STF itself could perform both the investigation and the trial. Such an unprecedented step would indeed “make history”, for it would constitute a blatant violation of the first principle of justice in democracies—those who investigate crimes cannot sit in judgement of those they accuse.

Next, the pre-investigation gag order. This is clearly prior censorship, so beloved of the former military regime, but specifically proscribed by the 1988 Constitution, and prohibited by past STF decisions. Toffoli, however, chose to “remake history”, arguing that the court is “Supremo” and can do as it pleases.

And again, the well-publicized “pact”. Article 2 of Brazil’s Constitution declares that the three branches of government—Executive, Legislative and Judicial—shall be “independent and harmonious” among themselves. A pact among those powers may encourage harmony, but it clearly calls into question the independence of the Judiciary.

The overriding purpose of the STF, under the doctrine of separation of powers, crucial to all democratic republics, is judicial review of actions taken by the legislature and the administration. Any prior “pact” with other branches of government potentially imperils the independence of the STF when it hears cases challenging those powers.

The Institutionalization of Individual Decisions

The larger problem with the STF, however, is institutional—its rules grant far too much power to individual Justices to decide cases. This problem manifests itself in different ways.

One is that any Justice, at a hearing when a case is before the full court, may request a postponement in order to review the case record. This sometimes occurs after a majority of prior votes has decided the case, but one “I-the-Supreme” Justice disagrees with the majority. His vote cannot change the decision, but he can delay its publication and becoming the law of the land.

Another is that the STF has jurisdiction to hear habeas corpus and similar appeals in criminal cases; the appeal comes first to an individual Justice. Many “I-the-Supreme” Justices do not respect precedent, and render decisions that directly contradict prior decisions of the full court—especially those decisions from which they dissented.

Yet another example is that most cases are heard not by the full Court, but rather by one of two separate panels, each with five Justices. It is common for controversial decisions in one panel to conflict with decisions in the other—hence, lawyers go “forum shopping”, hoping to have their cases heard by a panel favorable to their clients’ interests.

The STF’s Legislative Powers

The 1988 Constitution contains two startling provisions, which in effect permit the STF to legislate. Articles 5-LXXI and 103 both permit suits claiming that Congress has failed to legislate, and that this omission has had the effect of denying people their constitutional rights. If the Court agrees, it can impose a remedy that is equivalent to legislation.

The most illustrative such case is now before the STF: it deals with the criminalization of homophobia. Congress has never passed a statute classifying homophobia as a criminal offense, equivalent to racism. Bills to that effect are pending since the year 2000, but Congress has refused to act.

Six of eleven STF Justices have now voted on the case, and all have held that the congressional omission has denied fundamental constitutional protection to homosexuals. Their decision, which will become law upon publication, is that, until Congress does act, homophobic crimes must be treated in the same manner as racist crimes.

This is clearly judicial activism, and represents an incursion by the STF into the legislative sphere; under a pure separation of powers doctrine, only the legislature can create criminal offenses. Some STF Justices believe the Court should never exercise its constitutional power to legislate, because it creates disharmony, rather than harmony, among governmental branches.

One such dissenting Justice has adopted the above-mentioned “I-the-Supreme” delaying approach in this case, and has refused to vote, suspending proceedings so he can “review the record”—even though there is nothing more to review, and his dissenting vote will not change the Court’s ultimate decision.

A Possible Solution?

A case decided Wednesday, June 6^th, illustrates the complications inherent in the “I-the-Supreme” attitude of STF Justices, but also a possible solution. A lawsuit challenged the sale by Petrobras of its subsidiary TAG to a private company, alleging the Constitution required Congressional authorization for such a sale.

Justice Lewandowski, a lifelong ideological opponent of privatization, granted a temporary restraining order. On appeal, Justice Fachin maintained the order, in deference to his colleague, but placed the case on the Court’s priority docket. The full court decided, by an 8 – 3 vote, that the Constitution did not demand Congressional approval. Fachin, although dissenting, immediately bowed to the result and overturned the suspension order he had individually granted.

One can argue that this case demonstrates the value of a “pact”, in that the STF overcame “I-the-Supreme” individual decisions by speedily resolving an issue that was crucial to the federal government’s plan for economic recovery—harmony has prevailed.

But perhaps a more radical solution is in order?

A Cautionary Tale

Antonio Delfim Netto, a former Finance Minister and now a financial consultant and columnist, opined that the only cure for the STF’s “idiosyncrasies” is for it to drastically modify its internal regulations and remove the powers of individual Justices to decide cases.

The Curmudgeon studied constitutional law in the U.S., and is therefore accustomed to its judicial system, where individual SCOTUS Justices can never take decisions—only the full court has that power. There, no Justice can ever become “Yo, el Supremo”.

Here in Brazil, all eleven STF Justices are encouraged to fancy themselves as all-powerful, with the ability to make and remake history as it pleases them. That should not be the case, and Delfim Netto may be right.