“In the tense relationship with other constitutional bodies, the success of Justice, especially the constitutional and higher courts, in my opinion, depends mainly on their presenting themselves to the public with clear and, as far as possible, unanimous messages.”
Shortly after this suggestion by Peter Michael Huber, former minister of the Federal Constitutional Court of , in , this Monday (2), it was their turn to speak on the panel entitled “limits and functions of the Supreme Courts and their relations with Parliament”.
Participants in an event promoted by Dinter (Intercontinental Dialogues), in partnership with Goethe University, the minister of the (Supreme Federal Court) and the president of were very clear about the need for “self-criticism” and “self-restraint” of the two Powers.
The institutional crisis experienced by Brazil, however, was not addressed even in passing, even though it was unlikely that it would become a case study at IG Farben, the university’s historic building, which hosts the event. Mendonça has a habit of not discussing ongoing investigations and trials in court, even more so when he is the rapporteur, as occurs in the intricate case of .
The size of the problem the country faces, however, was reflected in the audience at the event. They were there, former president of the Central Bank, as well as Isaac Sidney, president of Febraban. Mendonça, this same Monday, exempted Campos Neto from attending the Organized Crime CPI.
Motta himself is a character in the discussion. He and , president of , resist the creation of a CPI on the bank and its connections with politicians and members of the STF. The commission that sought Campos Neto’s testimony became a ploy by congressmen to enter the investigations.
In his presentation, Mendonça stated that the Judiciary should “act to be recognized socially, by society, by political actors, by the press, by organized civil society, as a fair Power”.
This, the minister explained, required three aspects of legitimacy: impartiality (“power that is not exercised from a perspective of political ideologies, but from a technical perspective and careful distance”), reflexive legitimacy (“the strength of arguments, and not the argument of strength”) and legitimacy of proximity (“in the best sense of the expression, getting closer to what is happening in politics”).
Mendonça considered the third item. “[O Poder Judiciário] is not political, but he considers politics. He is not an economic agent with an interest, but he considers the impacts of his decision on the economy. He is not a citizen who is having his rights violated, or accused, but he puts himself in the place of the citizen who is having his rights violated.”
For the minister, judicial activism disintegrates this entire role by seeking the Judiciary to prevail over the other Powers. “If it is true that the Judiciary has the legitimate role of giving the last word, it does not, however, have the right to give the first and last word.”
Motta, in his explanation, started from the “normative density of the Constitution” to also address judicial activism. “The Federal Supreme Court, as guardian of the Constitution, is frequently asked to rule on issues of high complexity and political and social sensitivity, which increases its institutional visibility and its role in the system of checks and balances.”
The President of the Chamber considered that “this judicial protagonism often results from provocation on the part of institutional and social actors and comes to fill legal gaps”. According to the deputy, the “excessive provocation” is also the fault of politicians, who look to the Judiciary for a way to review unfavorable decisions. “I do this self-criticism.”
Huber, the former German minister, also addressed judicial activism, “which departs from the law and represents an independent discretionary political decision.” For the current professor at the University of Munich, constitutional courts must be able to resist conflicts with other constitutional bodies or even with the public.
“They must not seek this conflict, but when it arises, they must not avoid it, in order to fulfill the constitutional mission of maintaining the public’s trust in the institution.”
At least in Germany, the recipe works. Opinion polls show that the court is one of the most well-liked institutions in the country, with more than 70% approval.
