Fachin: ‘Either we limit ourselves, or there may be a limitation from an external Power’

The president of the Federal Supreme Court (STF), Edson Fachin, once again defended the development of a Code of Conduct for the Court. In an interview with Estadão, published this Monday (26), the minister explained that he had “urgency”, but not “a rush”, to institutionalize ethical rules. He refused to comment on the individual actions of his colleagues Dias Toffoli, in the Banco Master process, and Alexandre de Moraes, rapporteur of the fake news inquiry, but highlighted that the majority of the Court is in favor of thinking about a code “further down the line”.

Fachin acknowledged that some of his colleagues prefer to postpone the debate because it is an election year, during which “institutions will be more exposed”, and that others — a minority — consider it unnecessary because there are already rules in place in the Organic Law of the National Judiciary. The minister considered that the Court’s inertia could open the way for other Powers to act.

“When I took office at the STF, in 2015, I already said that, in the long term, there would be an improvement in the internal culture of the court. Lava Jato came, which, in essence, with all its mistakes, which are not few, and with its successes, which there were also, showed an undeniable fact: there was corruption. And gross corruption. And what is corruption if not an ethical infraction before a crime? This is an issue that represents an improvement in the path that the court is following. Even because, either we find a way to limit ourselves, or there could eventually be a limitation that comes from some external power, and I don’t think the result will be good, given what happened in Poland, Hungary, Mexico”, he said.

Opportunity with security!

For Fachin, the STF today has “institutional maturity” to establish which rules of conduct are necessary. The president of the STF ruled out risks of impeachment, but highlighted that the Court “does not always help itself” — as an example, he cited the expansion of the privileged forum. In the interview, the minister said that, to be effective, an effective code must lead to a “change in culture”.

“And this is not a dimension of moralization in the sense of now downloading a spirit of cheap moralism here, it is nothing like that. We are all fallible human beings. Therefore, life is not a life of impeccability. We all have circumstances. I, for example, have a daughter who is a lawyer. But the rule must be transparency. Everything on the table. Including, without “filhophobia”. Why should a son change professions when his father becomes a judge? No need. Now, there needs to be transparency. Do the what? Where do you advocate? In what terms? In what actions does all this have to be transparent”, he argued.

Fachin explained that he began paying attention to the ethics debate when he lived in Germany, in 2012. At the time, the then president of Germany, Christian Wulff, resigned after being criticized for accepting to travel with businesspeople, with hotels paid for by them. Furthermore, he recalled, a year earlier, then Chancellor Angela Merkel had fired the Defense Minister for lying about plagiarism in his doctoral thesis — not for the copy itself, but for having denied the act in a previous conversation with her.

code of Conduct

The proposal for a code of conduct for ministers of the higher courts designed by Fachin has the support of the presidents of the other Courts. The magistrate began to seek support to implement the measure and also try to convince his colleagues at the Supreme Court itself.

When starting the debate, Fachin sought out the heads of the Superior Court of Justice (STJ), Herman Benjamin; Superior Labor Court (TST), Luiz Phelippe Vieira de Mello Filho; Superior Electoral Court (TSE), Cármen Lúcia; and Superior Military Court (STM), Maria Elizabeth Rocha.

The president of the TST is one of the main voices in favor of drafting rules for members of the Superior Courts. In 2023, he was the rapporteur of a proposal led by former STF president Rosa Weber at the National Council of Justice (CNJ) — which ended up being overturned — and is now part of the body’s Judiciary Integrity and Transparency Observatory, a place where the construction of the code of conduct will possibly take place.

“I am absolutely against lectures paid for by companies or entities that may be party to proceedings. The conflict is evident. The judge cannot be a service provider in the market. I defend clear rules, total transparency and a Code of Conduct for the higher courts. The judge has to be a single person. You cannot have two lives, one inside the court and one outside”, said Vieira de Mello Filho to GLOBO, at the end of last year.

The president of the TST also rejected suggestions that the moment would not be opportune, and said that debating the code is “unpostponable”.

In public statements, other court presidents have already expressed themselves in favor of the set of rules that Fachin seeks to create. In a speech at the Association of Brazilian Magistrates (AMB), the president of the STJ defended a “modern, crystal clear and balanced” code of conduct.

“Many solid democracies, which we admire, have ethical standards of this type. It is true that the Organic Law of the Judiciary already requires judges to maintain ‘irreproachable conduct in public and private life’, something very vague, which brings uncertainty and insecurity for judges and for society”, said minister Herman Benjamin.

The president of the STM also expressed public agreement with the rules proposed by Fachin, during a conversation with journalists last week:

“It is important that the Supreme Court sets an example for all the judiciary that is below it. We need a code that makes it very clear what conduct we must adopt when exercising the profession”, stated minister Maria Elizabeth.

In December, a wing of the STF questioned the discussion amid the Senate’s analysis of a new Impeachment Law, an issue mobilized by supporters of former president Jair Bolsonaro against ministers of the Court.

Furthermore, a survey circulating in Supreme Court offices maintained that there was no regulatory gap in Brazil that would justify the adoption of a new code of conduct along the lines of that adopted in Germany, which is one of Fachin’s inspirations.

Speaking to journalists at the time, minister Gilmar Mendes said that any debate on a new code of conduct “does not work” if it is constructed outside the STF. Gilmar also stated that there is an “inflated” debate about the conduct of ministers.

Defenders of a new code of conduct demand clearer rules on topics such as impeachment and suspicion of judges; need to preserve independence and impartiality; and the confidentiality of information obtained in the exercise of jurisdiction. Furthermore, there is an attempt to establish limits for the exercise of private activities, such as lectures and participation in public events.