The scandals surrounding the case have brought back into the spotlight a problem that had been pushed under the carpet for decades: the Judiciary’s historic resistance to public scrutiny. Protected by a deep corporatism, it has gone practically unscathed by the advances in transparency registered in the last three decades in the rest of the public administration.
Ministers maintain close relationships with parties interested in processes, in the court itself, unclear economic interests, an institutional culture that sees social control as an affront, and not as a republican assumption. All of this contributes, for example, to the strange understanding, within the Judiciary, that they must be public (almost 38 years after the promulgation of the 1988 Federal Constitution and with the Access to Information Law about to turn 14 years old).
As we have already written here, the Executive Branch is light years ahead of the Legislative and Judiciary in terms of transparency, with the latter, by far, occupying the top spot in this ranking. Speaking to the Federal Supreme Court, Minister Luiz promised to advance this agenda. The creation of the National Observatory of Integrity and Transparency is an unequivocal sign of this. The challenge now is to transform intention into practice.
It is in this context that the adoption, by and by the higher courts, of one capable of establishing clear limits, preventing conflicts of interest and aligning the performance of the top judiciary with the legitimate expectations of society is necessary.
Here we list five basic guidelines to take the first steps towards the minimum equality of transparency standards between the Powers.
The first is the obligation to declare and disclose the economic and financial relations of all ministers. If this requirement applies to candidates for elected and temporary positions, there is no justification for officials with lifetime tenure on the country’s most powerful court to be subject to lower standards.
The second guideline is the objective prohibition of family conflicts of interest, with the review of the decision in ADI 5953, which overturned the rule that limited the role of judges in processes sponsored by offices with relatives up to the third degree. showed that family members of STF ministers have already served in the Supreme Court and the STJ.
Thirdly, the mandatory and centralized publication of documents is essential, along the lines of what already happens with thousands of public agents of the Executive. Until the end of last year, only Edson Fachin and publicized their commitments beyond the plenary sessions. From “” to , everything needs to be included in a public agenda, indicating remuneration, funding, purpose and who covered the expenses.
The fourth guideline concerns transparency in the criteria for distributing cases and choosing rapporteurs, as well as publicizing the processing of cases, as a general rule, without requiring prior registration, except only in legal cases of secrecy.
Finally, it is essential to create monitoring mechanisms independent of the code of conduct itself, with clear instances, public procedures and real consequences for non-compliance. Otherwise, better hang a picture on the wall!
The Objective Guidelines for Conduct in Superior Courts, signed by more than 31 entities, and the , with almost 40 thousand signatures, express an unequivocal social demand in this direction.
This is not about weakening the STF. In fact, it makes you stronger. Institutions are only sustainable when they are worthy of public trust. And trust is not imposed by authority. It is built on clear rules, ethics and transparency. A robust code of conduct is not a concession to criticism, but rather an affirmation of the republican commitment expected of the highest court in the country.
Superior courts in democratic countries, such as Germany and the United States, adopted codes of conduct in the 21st century in contexts of adapting their norms to the natural process of modernization of rules valid for the entire society. As a protagonist in the defense of Brazilian democracy, the target of an attempted coup still under its trial, the Federal Supreme Court has a duty to join this team.
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