The first duty of the ministers of the (Supreme Federal Court) is to “preserve the internal cohesion, reciprocal trust and mutual respect that sustain the legitimacy of the court”, because “no power survives the disunity of its members”.
The message is from the retired minister and former president of the STF, who turns 80 this Saturday (1st).
In an interview with Sheet In writing, Celso defends the court’s actions in the trial of the coup plot, which condemned the former president ().
It also states that the dissatisfaction of segments of public opinion does not compromise the legitimacy of judicial decisions and highlights the importance of unity within the STF, which in recent months has been involved in and had the majority of its members targeted by the (USA) government.
Celso was appointed by the then president in August 1989, the centenary year of the Proclamation of the Republic, and became the minister with the longest serving in the court since redemocratization. He left the court in October 2020, after 31 years, one month and 26 days.
His three decades at the STF were marked by emblematic reports and votes in cases such as the criminalization of homophobia, the approval of the termination of pregnancies of anencephalic fetuses and the release of the Marijuana March.
Less noisy, other decisions by the minister had important legal impacts. One of them, from 2004, was the establishment of rules for applying the principle of insignificance (or trifling), which exonerates defendants for stealing goods with low value, such as small amounts of food.
Mr. He was one of the first ministers appointed to the STF after the 1988 Constitution. Over these decades, do you think the Supreme Court has been fulfilling its constitutional role? As?
It is important to point out, from the perspective of our institutional experience, that the Supreme Court —despite episodes of serious tension in its trajectory, such as those that put it in conflict with some presidents, such as Floriano Peixoto, Hermes da Fonseca, Costa e Silva and — knew how to overcome the adversities imposed by history, resist the pressure of circumstances, preserve its institutional dignity and maintain the integrity of its constitutional mission.
This continued fidelity to the regime of public freedoms and the empire of the Constitution demonstrates that the Supreme Court — even when subjected to very serious situations of institutional aggression and exposed to turbulent times — managed to maintain the moral heritage that legitimizes its existence and that constitutes the foundation of its authority. Therefore, I can say, with the sobriety that time teaches, that the Supreme Court has sought to fulfill, with dignity and rigor, the role entrusted to it by the 1988 Constitution.
What should the Supreme Court’s stance be in the face of attacks from foreign powers?
In the face of foreign powers, the Supreme Court does not bow down: it upholds, with dignity, the sovereignty of the Constitution and the laws of the Republic. The STF, as guardian of the Constitution and greatest expression of the Judiciary, must always maintain its independence, even (and above all) when the nation is the object of pressure, threats or attacks from foreign powers.
National sovereignty is not a mere rhetorical clause in the constitutional text. […] When foreign powers, driven by geopolitical, economic or informational interests, seek to influence, directly or indirectly, the destinies of the Brazilian State, the Supreme Court must reaffirm —firmly— that constitutional jurisdiction does not bow to the will of the strong, but only to the authority of the Constitution.
My response, therefore, repudiates submission and is based on constitutional resistance — the intransigent defense of the inalienable sovereignty of the Brazilian State, the dignity of the people of our country and the independence of its democratic institutions. This is the inderogable duty of the Supreme Court in difficult times: to remain faithful to the Constitution, faithful to the Republic, faithful to the democratic regime and faithful to Brazil.
How should a court deal with the internal strain that these attacks can cause?
The first duty of its members is to preserve the internal cohesion, reciprocal trust and mutual respect that sustain the legitimacy of the court. No power survives the disunity of its members.
The wear and tear caused by such external attacks must be faced with serenity, without allowing aggression to convert into division. The Supreme Court — just like any constitutional court — does not defend itself with words of revenge, but with the firmness of its decisions and fidelity to the Constitution.
It is precisely in moments of institutional tension that the spirit of collegiality must prevail over personal disagreements. Differences of opinion — natural and even necessary in a plural court — cannot cause internal fractures that compromise its moral authority. The external enemy can never turn into internal discord.
Foreign attacks, no matter how loud, do not threaten a constitutional court as much as weakening trust among its own judges. […] The collapse begins when the bond of trust is broken, when internal divergence culminates in disunity. Thus, the moral unity of an institution is the first line of defense against internal disintegration and consequent final collapse.
Mr. He was one of the first in the court to talk about press pressure against ministers in high-profile cases, such as the Mensalão. Does the scenario remain the same or is it different?
It is undeniable that, in high-profile trials, the press, in the legitimate exercise of its power-duty to inform, give opinions and criticize, ends up exerting a form of media pressure on the judges. This is an inherent reality of open democracies.
What is required of the judge, in such circumstances, is serenity and independence of mind: to judge with fidelity to the Constitution and the laws, without being influenced by popular acclaim or media campaigns. After all, Justice cannot be a hostage to public opinion, but it also must not fear it — it must simply remain faithful to its duty to judge impartially.
I have emphasized, in numerous decisions, that the exercise of jurisdiction cannot become a judicial practice that inhibits, much less censors, the constitutional freedom of expression and communication, under penalty of this power attributed to the Judiciary qualifying as the new name for unacceptable state censorship in our country.
It is essential to recognize that freedom of the press is not absolute, but guarantees media professionals the right to seek, receive and transmit information and ideas through any means. […] It is important to remember, at this point, the correct warning from the minister, upon his inauguration as president of the (Superior Electoral Court).
“Freedom of expression is not freedom of aggression. Freedom of expression is not freedom to destroy democracy, to destroy institutions, to destroy the dignity and honor of others. Freedom of expression is not freedom to spread hateful and prejudiced speech”, he said.
Mr. Do you agree with the diagnosis that public opinion is disgusted with the Supreme Court? If so, what is the origin of this crisis?
The eventual dissatisfaction of segments of public opinion with the STF does not diminish the institutional stature of the court nor compromise the legitimacy of its decisions. In a constitutional democracy, judges do not decide to please — they decide to comply with the Constitution and to make its principles effective!
It is necessary to remember that, in the darkest moments of national life, it was precisely the Supreme Court that stood up as a moral and legal barrier against denialism and the arbitrariness of power. During the pandemic, by affirming the competence of states and municipalities to adopt sanitary measures, it saved lives and gave concrete expression to the greater value of human dignity.
It is, therefore, paradoxical that part of society expresses displeasure in the face of a court that, throughout these years, has been the institutional bulwark against authoritarianism and barbarism. The Supreme Court is called to act, even if its decisions are not understood, whenever the Constitution and public freedoms are in danger.
The STF does not exercise representative political power, like the Executive or Legislative. These derive their legitimacy from the will of the majority, expressed at the ballot box. The Supreme Court, as a constitutional court, derives its legitimacy from the Constitution itself — and from its mission to protect it, even against the majority, when it threatens or transgresses fundamental freedoms or the rights of minorities and vulnerable groups or the democratic regime itself.
The essence of the Rule of Law consists, precisely, in limiting the power of majorities, because history teaches that majorities can also be unfair, abusive and arbitrary.
The trial of the attempted coup d’état that condemned former president Jair Bolsonaro was a recent example of a high-profile criminal case judged by the STF. How do you evaluate the conduct of the process?
I want to highlight, first of all, the truly historic significance of the trial that our supreme court has just carried out. In it, the Supreme Court reaffirmed the values of the democratic rule of law, holding the members of the coup leadership responsible and guilty for having transgressed, in an insolent and criminal manner, the Constitution and republican institutions.
With this criminal conviction, the STF demonstrated that there is no room, in Brazil, for coup adventures or sordid authoritarian power projects. By making this very important decision, the Supreme Court, faithful to its institutional mission, demonstrated to the nation that no one, absolutely no one, is above the Constitution or the laws of the Republic.
Regarding the conduct of the process, I can only say that Minister Alexandre de Moraes has carried out his duties in compliance with constitutional and legal limits, acting as a legitimate judge of the case, and not as a party involved in it. The Constitution does not allow the jurisdiction to be paralyzed by the simple insurgency of the accused against the magistrate who, acting correctly, applies the law. It is important to emphasize that the Supreme Court respected, in the trial in question, the contradictory and broad defense.
What is not acceptable, in a Rule of Law, is to confuse broad defense with the freedom to initiate incidents to obstruct jurisdiction. […] The punishment of crimes against the democratic rule of law and armed criminal organizations is of capital importance for the preservation of the constitutional order and the very survival of democracy. These crimes are not simple criminal offenses — they represent direct attacks on the founding pact of republican and democratic coexistence.
X-RAY | Celso de Mello, 80
José Celso de Mello Filho was born in Tatuí (SP). He graduated in law from the Faculty of Law at USP in 1969. The following year, he joined the MP-SP (Public Ministry of the State of São Paulo). He left the body after his appointment to the STF, in 1989, by then president José Sarney, for whom he was secretary general of the General Consultancy of the Republic. He retired in October 2020, after more than three decades at the Supreme Court. His vacancy was occupied by minister Kassio Nunes Marques, appointed by Jair Bolsonaro.
