Behind closed doors, the ministers of the (Supreme Federal Court) removed the report of the Master case in an unprecedented decision that reinforces the perception of corporatism in the court.
Historically, the removal of a minister from the case. The plenary never recognized a situation of suspicion or impediment other than through self-declaration.
On Thursday (12), the court reacted to the messages between Toffoli and the banker, but maintained a pact of self-preservation by not declaring him a suspect to continue the case.
For experts heard by the Sheetthe minister’s departure highlights a deep crisis and reinforces the court’s inability to admit and correct its own mistakes.
Insper constitutional law professor Luiz Fernando Esteves defines Toffoli’s departure from the Master case as “historic” and “strange” and questions the fact that everyone gave their opinion against the suspicion.
“I don’t remember an ethical crisis this serious in the Federal Supreme Court. This is unprecedented,” he says, adding that a STF minister implicated in crimes would also be unprecedented — the Federal Police handed the president of the STF, Edson Fachin, a document with information about the relationship between Toffoli and Vorcaro in which he points out.
Esteves expresses surprise with part of the solution that the ministers gave, of removing the magistrate from the case without declaring the suspicion. “They are basically saying that Minister Toffoli can participate in a possible trial [do caso Master]”.
This is the same perception of the professor at the Faculty of Law at USP and columnist for Sheet . “If Toffoli is not a suspect, he will continue to vote, which is very serious. If he is not a suspect, he just stopped being a rapporteur.”
According to him, the Supreme Court’s decision has a strategic rationality, but it is not necessarily positive nor does it represent some type of institutional awareness and intelligence.
As shown by , the meeting of ministers had a political tone and a search for self-preservation. With this measure, the expectation was that the temperature would drop.
For the professor, the court sought an intermediate solution in the face of a situation that proved unsustainable, but did so by adopting an “extravagant” solution from a procedural point of view that deepens the crisis.
Despite the pressure, he did not break the tradition of never declaring ministers impeached or suspect nor did he choose to pay the price of forcing him to declare himself a suspect. “The STF didn’t even do that.”
“It’s a naive rationality” that “deepens the crisis of authority, the degradation of the image, of the legal and moral authority that the STF has to exercise its constitutional role”, states the professor.
ESPM Law professor Ana Laura Barbosa highlights that, historically, the Supreme Court has been resistant to publicly accounting for its bias and that Toffoli’s departure confirms this pattern.
“The court appears to be replicating the pattern of trying to close itself off and shield itself when there is criticism regarding its impartiality, when it should be doing the opposite,” he states.
She adds that, although the situation is delicate due to the fact that not all information is available, the lack of transparency is negative.
“There is only one perennial way out of the reputational crisis, which is to increase the emphasis on the constitutional technique of its decisions and increase public accountability regarding its impartiality”, he says. “As long as the court is more in the news due to political scandals than due to the content of its technical decisions, it will maintain its reputational crisis.”
Rubens Glezer, professor at FGV Direito SP, states that the solution adopted by the Supreme Court does not restore confidence in the court’s image and criticizes the signaling it sends to the legal community and the population in general.
“It gives the idea that the STF’s choice is always the protection of ministers and the protection of a reciprocal protection pact, no matter how much the court itself is put at risk.”
According to the professor, the Supreme Court’s “last lifeline” is the code of ethics. The measure was proposed by Fachin, but is resisted by members of the court such as ministers Alexandre de Moraes and Toffoli himself.
Without a clear gesture of recognition of problems and willingness to change, says Glezer, what remains are reform proposals that advance throughout the political world, outside the control of the court itself.
