The signal from the ministers and the (Supreme Federal Court) is positive, but it is necessary to guarantee concreteness and expand the recommendations announced by Cármen to the electoral judges this Monday (2), in the opinion of experts heard by the Sheet.
They cite the need to, for example, ensure that external representatives participate in one of the judges, in addition to delimiting a quarantine period for anyone leaving the court.
They also mention that the code, released this Monday, is relevant, due to its alignment on the topic with Fachin and transparency practices.
On Monday, Fachin reiterated his commitment to drafting an internal code for the court, a proposal that has faced resistance from some ministers, and said that the historic moment is “one of self-correction”.
On the same day, hours later, Cármen Lúcia released a proposal, as current president of the (Superior Electoral Court).
She recommended the publicity of hearings with parties and lawyers, restraint in demonstrations related to the electoral process and the prohibition of any political stance.
He also advised not to accept gifts that could cast doubt on impartiality and non-participation in processes represented by his law firms, in addition to other points.
For Juliana Sakai, executive director of Transparência Brasil, Fachin’s position and Cármen’s recommendations are a positive sign for the evolution of the issue in the STF.
Transparência Brasil is one of those that announced support for the code and is preparing a text to be delivered to the court. Furthermore, it is ahead of one with almost 50 thousand signatures.
According to Sakai, having Cármen on the rapporteur is positive because she has a “profile aligned with themes of transparency and integrity”, in addition to being known for dialoguing with civil society organizations.
For her, the minister’s recommendations to electoral judges are compatible with the demands for a code in the STF, but need to be more detailed and precise. As an example, Sakai cites the guidance on publicity of the hearing between ministers and third parties.
“It is important to have transparency in ministers’ hearings, but also in their offices, as it is not just ministers who receive [pessoas interessadas em processos]”.
Sakai states that there is also a lack of detail under which conditions a minister can participate in economic ventures. Another point, he says, is to think about the transparency of the position from the moment of appointment. “The declaration of possible conflicts of interest must come from the moment the ministers are appointed.”
She also states that the code needs to provide for the impossibility of maintaining the position in specific cases of non-compliance with the rules. Another action to prevent the document from becoming innocuous, he says, is to guarantee external representatives on a possible commission created to evaluate the judges.
For Álvaro Palma de Jorge, professor at FGV Direito Rio, Cármen’s choice as rapporteur is a good sign, because the minister “has the legitimacy to deal with the issue”.
“The minister is a little distant from the world of politics and is not usually associated with the behaviors that are being discussed about what should or should not be done.”
He says that the recommendations given to electoral judges can be used as a reference for the code, but that it is necessary to pay attention to the specificities involving the judges of the highest court in the country.
As an example, he cites guidance that magistrates not interact with people with cases pending in court. For him, the scenario may be unfeasible for STF ministers in some cases.
“For example, the fact that the Minister of the Supreme Court meets with the President of the Republic, who has a case at the Supreme Court every day. The AGU [Advocacia-Geral da União] every day brings something. It is not possible to create a principle that prevents this relationship between heads of Power.”
Oscar Vilhena, professor at FGV Direito SP and columnist for Sheetpoints out that Cármen Lúcia is aligned with Fachin on issues such as impartiality in the court. Vilhena participated in two initiatives that called for the adoption of a code of conduct by the STF, and (Brazilian Bar Association in São Paulo).
He recalls that both magistrates voted against the unconstitutionality, decided in 2023, of a rule that expanded the impediment of judges in cases involving relatives’ offices.
For Vilhena, the recommendations proposed by Cármen to electoral judges are in line with what is seen in international court codes.
In the case of the STF, the professor states that it is necessary to think about rules that cover three major blocks: conflicts of interest, participation in the public sphere and action after leaving the court.
In the last topic, a suggestion not mentioned by the minister in this Monday’s recommendations concerns the quarantine period. The OAB-SP proposal advocates that ministers wait three years after dismissal or retirement to practice law.
