For the lawyer, who was at the forefront of the last reform of the Judiciary, in 2004, a new initiative of this type is a priority, but it must be waited to avoid contamination by the political-electoral moment and polarization.
According to him, the same goes for a code of ethics of the (Supreme Federal Court), which cannot be seen as a panacea for the problems of Justice. “The Supreme Court, and even the Justice system in Brazil, cannot be guided by political-electoral discussion.”
It was this scenario and the polarization that led to a regrettable moment, in , with the constitutional court.
“No one assessed that he was unfit to be a Supreme Court minister, that he had no reputation or resume. That was not the reason for refusing his name.”
Secretary of Judiciary reform at the Ministry of Justice from 2003 to 2005, in the first Lula government, Renault was also deputy head of legal affairs at the Civil House of the Presidency of the Republic from 2005 to 2006.
Is a new reform of the Judiciary necessary?
Yes, because it happened 22 years ago, in 2004. A lot has changed. It is always necessary to think about improving the justice systems in Brazil, because the volume of cases is very large and the demand is growing. It is always good to have a reform that can improve the system.
What would be fundamental in a new reform?
The Judiciary’s biggest problem continues to be the slowness of Justice and a . These issues were already the most important before the 2004 reform. Many measures were already taken at that time, but new measures are needed.
Procedural changes, incorporation of new technologies, combating the predatory use of the Judiciary and measures that make it possible to attack the main problem of the Judiciary, which is the slowness of Justice.
What was the balance of the 2004 reform?
If it had not been done, we would have had a huge problem in terms of the number of cases and congestion in the courts. The result is positive, but it proved to be insufficient, either because at the time not everything that was thought was really approved or because time passed, and society became more complex.
Everything that was done worked, but some things did not achieve the intended objectives. The great innovation of that time was the creation of [CNJ] and the National Council of the Public Ministry, which were important instruments for planning and correctional activity in the Justice system. The truth is that they achieved some goals, not all. There was a greater expectation regarding the functioning of these bodies.
Should there be any changes to the functioning of the CNJ?
There was an expectation that it would have a different composition than the one that was approved. There was talk of creating an external control body for the Judiciary, but the body created has very little participation from society, with one advisor appointed by the Senate and another by the .
The facts demonstrate that it is important to have a more diverse composition, with more participation from society. The CNJ ended up having a more limited role than intended.
Would it make sense for the council to cover and have punitive capacity over STF ministers?
The CNJ could have a role in relation to Supreme Court ministers. Regarding punishments, I’m not against it, it’s a possibility. But, to do this, it is necessary to think about recomposing it. It was something that was discussed at the time, but it was not possible because there were no political conditions for it to be approved.
One of the things that I was always against and changed my mind about — and which is now being discussed again — is about . This turned out to be a distortion. Instead of being a punishment, it is almost a reward. There cannot be any punishment that represents a kind of absolution for someone who has committed a serious offense.
Minister Flávio Dino defends the end of punitive compulsory retirement, involved in corruption and the fight against penduricalhos. How do you evaluate proposals?
Punishments must be heavier. And, regarding , I also agree with the minister. There needs to be a discussion about this. The reform in 2004 was the result of a broad discussion, with the involvement of all categories that make up the Justice system.
Any changes that are made must again count on the participation of all these players. It’s an important issue for the country, but it needs everyone’s participation.
Do any of Dino’s 15 proposals catch your attention?
Those that concern alleviating the slowness of Justice and the attack on the predatory use of the Judiciary. I have said this since then and it continues to exist: the Judiciary serves companies, corporations and entities that, in fact, use their slowness and inefficiency to obtain some benefit.
This is noticeable in telephony. This brings great harm to the country, because they make enormous use of the Justice system and, often, this benefit does not come to the benefit of society.
What can be done to improve slowness in the Judiciary?
The Judiciary does not meet society’s demands at the speed it should. To improve, you need to be better equipped, with . He always implements new technologies, but the impression one gets is that he is always chasing losses.
It is necessary to implement technological advances and measures to change procedural legislation. The reform itself is a never-ending process, it did not begin in 1988 with the Constitution and did not end in 2004 with the creation of the CNJ, it is a permanent process.
Is a new reform of the Judiciary a priority?
Yes, but we need to know what this reform is. What I have seen in the press is a discussion as if a reform of the Supreme Court was necessary. That’s not the issue.
The problem with the Judiciary is not the Supreme Court, it is the enormous number of cases, the slowness of Justice and the . Placing the responsibility on the Supreme Court is a mistaken finding. The country must recognize the relevance of the Supreme Court and the role it has played in recent years. I have a positive review about it.
What works and what hasn’t worked in the Supreme Court?
The Supreme works. As a democrat, it is always important to recognize the role and relevance that the Supreme Court has, because it is a fundamental institution in our democracy.
All those who defend democracy must respect and defend it as an institution. But some discussions can be made, such as , the number of excessive powers of the president and the greater privilege for collegial decisions.
Should the court have a code of ethics, Minister Fachin’s agenda?
No one will be against the code of ethics, but I am against it being done in the current environment of political-electoral discussion. The minister, when he presents the proposal to create the code of ethics, is adequately fulfilling his role as president of the Supreme Court. It’s good that he raises the discussion.
But I do not agree that this discussion should be carried out as if it had to be concluded now, because it is very contaminated by the political electoral environment. The Supreme Court, and even the Justice system in Brazil, cannot be guided by electoral political discussion.
A wing of the STF is more averse to the code, and the minister spoke.
When he says this, he means, and rightly so, that instruments for controlling and verifying ministers’ attitudes and postures already exist. The impression I have is that, currently, the discussion about the code is much more about responding to society’s expectations than about meeting reality.
Care must be taken, because the proposal cannot be a panacea either. It appears that the Supreme Court’s problem is this [a falta de código] and that this will solve all the problems of Justice in Brazil, which it will not. Nothing alone solves the problem.
In the article defending the reform, Dino spoke of the need to go beyond “superficial changes”, a manifestation read by some as opposition to the wing that defends the code of ethics. What do you think?
I think he’s right, the discussion needs to be deeper. Minister Flávio Dino has a very relevant contribution to the Judiciary. When you make statements like this, you want to contribute to the debate.
He is not disqualifying the idea of a code of ethics, what he is saying is that it is not enough, which I agree with. The discussion is broader, and that is not the problem with the Judiciary. The discussion cannot be guided by the country’s political-electoral requirements. The Judiciary cannot fall into this discussion. This cannot be treated as if it were an electoral issue, because it is not.
What was the political movement like around the 2004 reform?
There was a political situation that allowed the reform to take place. Firstly, because it was a project at the beginning of the government, which adopted that as a flag.
It is a reform carried out in the Judiciary, but the government, which is the Executive Branch, ended up embracing that flag as something relevant to the country. There was a very specific and favorable political situation. Now we are at the end of the government. Talking about it now mixes things up, I don’t think it should.
Does this moment of polarization influence the possibility of a new reform?
There are people interested in making this mixture, but that’s bad. There shouldn’t be this mixture, because they are completely different things. The Judiciary is an important institution for the . All Democrats must defend the Judiciary and the Supreme Court as an institution. This polarized discussion has nothing to do with the Judiciary. He should not even allow himself to be pushed into this discussion.
Possible new discoveries about the relations between STF ministers and o Could they also influence the debate?
I have always said that what matters is the institution. Ministers are people who can make mistakes. This is part of any human organization. From that point of view, yes. But I don’t want to make any comments about , I don’t have that role.
This discussion, in the way it is being done, does not contribute to the improvement of the Justice system. This is not the problem of the Judiciary. It may be a private issue, which involves one person or another, but that is not the problem with the Justice system. The Supreme Court is part of the solution, not the problem.
What would be the path for judicial reform to work today?
Due to electoral issues, this is not the right time. The discussion can be started, but it is today contaminated by the electoral issue. I am in favor of the reform, but I think that the electoral moment could contaminate it and make the result not positive. The discussion can be started, but it is better for it to be carried forward after the next government, at the beginning of the mandate.
Would it be the same procedure as in 2004?
In 2004 they ended up making one. Now, much of what is needed does not require constitutional reform, it would be reforms of procedural laws, procedures and internal mechanisms and regulations.
A constitutional reform would be necessary only if it changes the composition of the CNJ or, for example, the mandate of the Supreme Court ministers. Constitutional reform has a greater, more serious political implication and causes polarization to intensify.
How do you evaluate the failure of the STF?
The Senate’s decision, despite being sovereign, is regrettable, because it was motivated by reasons that should not justify the evaluation of a nomination from the President of the Republic to minister of the STF.
The statement says that the nomination must be made by the president and approved by the Senate, but the Senate should evaluate the real conditions of the person appointed by the president to assume the position of minister of the Supreme Court.
Messiah was a victim of this polarization. No one has assessed that he is unfit to be a Supreme Court minister, that he has no reputation or resume. That was not the reason for refusing his name. But it is a sovereign decision, there is nothing to discuss. The president will now have to nominate someone else.
X-RAY | Sérgio Rabello Tamm Renault, 67
Partner at Tojal Renault Advogados and CEO of the Innovare Prize. He was secretary of Judiciary reform (2003 to 2005) and deputy head for legal affairs of the Civil House of the Presidency of the Republic (2005 to 2006).
