If the idea of creating a code of conduct in the (Supreme Federal Court) moves forward, a second debate that arises is how to create a design that is effective.
In addition to establishing rules limiting the receipt of gifts and public demonstrations by magistrates, questions arise as to whether there would be any body responsible for monitoring such compliance and, furthermore, whether any type of sanction would be applied.
Professors of constitutional and public law consulted by the Sheet evaluate that one possibility would be the creation of an ethics committee within the STF that could receive and evaluate complaints. There are also those who see a risk in creating a commission. The majority argues, however, that such an organization should not have a punitive character.
The new list of rules would function as a tool for public collection and embarrassment.
One point that could have a concrete effect would be the mandatory transparency regarding amounts received for extra activities, such as participation in lectures.
Pointed out as inspirations for the Brazilian debate, neither the German nor the United States codes of conduct provide for an implementation and inspection mechanism. In the US, this gap is a source of criticism.
Likewise, one from last October, and drinking from the source of these international examples, does not enter the field of implementation.
The highest body of the Judiciary, the Supreme Court is not under the control of the (National Council of Justice), which has the power, for example, to initiate disciplinary infraction proceedings against magistrates in general.
As a result, any disciplinary infractions by ministers are not subject to an external body – with the exception of . In the current scenario, there is already a perception that some of the rules, such as the one that prohibits expressing an opinion on proceedings pending judgment, are .
A Sheet asked the STF via advisory whether it was being discussed how violations of a possible code of conduct could be monitored, but there was no response. He was also asked whether the creation of a commission would be a possibility and whether any punishment was being considered.
Elival da Silva Ramos, professor of constitutional law at the University of São Paulo and former attorney general of the state of São Paulo, also points to the creation of an ethics commission that, upon receipt of complaints, would request the provision of information to evaluate case by case. In the event of criminal conduct, referral to the PGR (Attorney General’s Office) would be appropriate.
Carlos Ari Sundfeld, professor at FGV Direito SP and lawyer, says that a possible ethics commission could be composed, for example, of former magistrates, law professors and respectable public figures. He says that ministers, both because they are directly involved and because of the volume of work, would be unlikely to join it.
He points out that it would be legitimate for the procedures to be carried out in secrecy, arguing that this could prevent the reporting mechanism from being used to seek to create impediments.
Furthermore, it defends the non-punitive nature, since, if it is a serious violation, the Senate has the power to initiate impeachment proceedings against the ministers.
Vera Karam de Chueiri, who is a professor of constitutional law at UFPR (Federal University of Paraná) and advisor to the Presidency’s Public Ethics Commission, also sees the creation of a commission within the STF itself as a possible path.
She says that unfounded complaints should be excluded in the first filter and defends a preventive and educational body, to which ministers could make prior consultations in case of doubt, and which could issue recommendations and warnings.
Professor at FGV Direito SP and one of the subscribers of the Fundação FHC study, Rubens Glezer sees with reservations the possibility of creating a monitoring mechanism such as a commission or something of the sort. He assesses that a majority of ministers could use such a body to control dissenting voices within the court.
And, despite considering the concern regarding the effectiveness of the measure valid, he considers that, if the approval of a code made no difference, there would be no reason for there to be resistance to its approval, as has been reported.
In December, federal deputy Chico Alencar (-RJ) presented a bill providing for the creation of a code of conduct for the court.
Sundfeld (FGV) and Elival (USP) assess, however, that there would be a lack of initiative in such a project. According to them, based on the content of the text, it could only be processed in the Legislature as part of a proposal initiated by the Supreme Court.
HAS Sheet Deputy Chico Alencar stated that he did not intend to create a ready-made project and that it will be the subject of debate. “Simply saying that it is only up to the Supreme Court to legislate in this regard does not advance the issue of impartiality, integrity, transparency and impersonality in the actions of ministers,” he stated, adding that, if the court itself manages to approve something sooner, it would be even better.
Despite not predicting what the exact body and actors responsible for this analysis would be like, the text says that anyone can submit a substantiated complaint to the STF, which must, in turn, provide a response.
Lucas Mourão, lawyer and legal advisor to the deputy’s office, says that this issue is still being developed. He argues, however, that the existence of a collegial body to analyze conduct is a fundamental premise.
