The inauguration of the presidency opens up the fair expectation of a new cycle, and the word most used for the desire for change has been self-restraint. It became the motto of the hour. A dry word, not very legal and rich in traps.
recommended: “Under Fachin, the Supreme Court needs to seek self-restraint.” He should “abandon activism, heterodoxies and excesses”, even though he faced, with the TSE, “subversive harassment with pride”. There would be “no more reasons to maintain measures that should be exceptional”.
He gave examples: the “endless and opaque investigations” where “investigations without a clearly defined objective accumulate, censorship-inclined decisions and arbitrariness such as secretive monocratic orders”. It would also have invaded “Legislative powers”, as in the case of the Marco Civil da Internet. And he welcomed Fachin’s “discreet profile”.
He tried to say a lot, mixed different issues and, more risky, put everything under the hat of self-restraint, a label more rhetorical than analytical. A word so manipulable that it raises false and unexpected consensus. Flávio Bolsonaro, for example, made the same request: “I want to ask God to give strength to Fachin, so that he can carry out this self-restraint.” Self-restraint in the power to punish attempted coups.
And so we move away from the concrete debate, case by case, argument by argument, and dive into the rarefied clouds of slogans. Instead of particularizing, we generalize. We escape the dense debate and go to the drain. Instead of discussing the validity of each apparently abusive monocratic measure, or how the STF invaded the Legislature, we scream for self-restraint. A meme.
Fachin’s speech provided answers to the expectation: “At no time will we hesitate in controlling the constitutionality of laws that violate the Constitution.” “Jurisdictional provision is not a spectacle. .” In the first sentence, he stated that the STF will continue to perform its function. The second, more interesting, invokes “containment” to prevent the “spectacle”. I interpret it as a fight for less promiscuity, more integrity. Nothing to do with separation of Powers.
This is the weakness of the request for self-restraint: it says nothing concrete, but it leads to dangerous conclusions. As if a court, faced with a serious violation of rights, was afraid to upset the legislator. If so, it would not only be institutional cowardice, but constitutional betrayal. The person who gains from the manipulative slogan of self-restraint is the violator of rights. Not democracy, the economy or legal security.
The STF does not need self-restraint, but self-correction. It sounds like a trick of words, but it is constitutional clarification. It’s not for the court to leave the field, it’s to play better. There are immense tasks involved in building a court that is not reduced to the wild, dazzled and vain individuality of ministers. And this requires a dense and concrete debate.
The ability to self-correct is a virtue of mature and responsible institutions. Good institutions self-correct, they do not praise themselves gratuitously. The STF never took this task seriously.
This improvement could also occur in the public debate. Let us not shy away from argumentative precision. Let us resist the sloganeering bullshit. Let us be wary of slogans sold by jurists to simplify what cannot be simplified.
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