The president of the (Supreme Federal Court), has been betting on strengthening a public debate on transparency to convince other ministers to approve a code of ethics in the court.
The model that serves as inspiration for the code that Fachin wants to approve in the Supreme Court is that of Germany, which prioritizes transparency.
The minister gave preference to the German standard over other European codes that emphasize prohibitions, according to people who follow discussions on the topic.
This approach helps prevent dissatisfied ministers from publicly criticizing the initiative.
According to a member of the higher court, no minister will publicly oppose the disclosure of amounts received in lectures or who paid for a trip to Europe.
One of the reasons is that the STF itself has demanded transparency from , especially in the execution of parliamentary amendments, from the Executive and from companies.
Even so, in a reserved manner, the idea of a code of conduct provoked complaints from members of the Supreme Court, who saw the measure as an unnecessary exposure of ministers at a time of reaction against the Judiciary.
Laterally, Fachin tries to promote the idea within the scope of the (National Council of Justice), which supervises magistrates from all over Brazil — except the ministers of the STF.
The plan to create a type of code of ethics in the Supreme Court dates back to the beginning of the minister’s tenure at the court, which began at the end of September. Even before, he had already discussed the topic with legal academics.
The main idea, which is still in development and has not been formalized, would be to adapt the rules of conduct of the German equivalent to the STF.
The text says that judges can accept remuneration for lectures and events as long as the court’s reputation is not compromised and does not generate doubts in relation to this. Furthermore, the funds must be publicly disclosed.
The German code also states that judges must continue to exercise restraint even after leaving court and restricts legal issues that have been the subject of court proceedings from being involved.
One of the texts that have been cited by Fachin’s interlocutors to justify the creation of the code is an October study by the FHC Foundation, which highlights the need to strengthen the public reputation of magistrates.
Fachin has been talking, in recent months, with advisors from the foundation, such as the professor of constitutional law at FGV Oscar Vilhena and the professor emeritus of international relations at USP Celso Lafer, from whom he asked for attention to the topic.
Fachin did not publicize the idea from the beginning so as not to rush the discussion at a bad time. This was even the subject of discussion with the authors of the proposal.
The text has suggestions for strengthening the public reputation of the STF, including the code of conduct, indicating clauses that would oblige ministers to comply with rules of impartiality, integrity and honesty.
It also talks about specific rules on public demonstrations, participation in events and greater quarantine on working in court after leaving the bench.
Furthermore, the study proposes clearer rules on suspicion and impediment. These are the cases in which ministers withdraw from processes due to a conflict.
The proposal suggests “declaring oneself a suspect whenever there is a legitimate public doubt regarding one’s impartiality, except in exceptional situations in which an attempt to manipulate the court’s jurisdiction is found, to be analyzed by the collegiate.”
“If the members of the court were seen as part of a whole, the mantle of institutionality would make them more protected from attacks directed at each of them, and the burden of politically costly decisions would be diluted among all members of the institution”, says the study.
“Strengthening the public reputation of the STF will allow it to exercise its functions, which are central to the preservation of the Federal Constitution, the Rule of Law and democratic principles.”
The idea of a code of ethics gained prominence after minister Dias Toffoli’s trip to Lima, Peru, during the Copa Libertadores final, in a private jet alongside one of the lawyers involved in the Master case, whose investigations are under the supervision of the magistrate.
Seminars and forums held in Brazil and abroad also become frequent targets of questions, both about the financing of the events and the participation of ministers alongside politicians, businesspeople and people potentially interested in court proceedings.
One of these is , which became known as “” because it was led by the minister . This year, part of the leadership of the Brazilian Judiciary and federal bodies also met in , in an event organized by the (Brazilian Bar Association), and .
In addition to the idea of a code of ethics, Fachin created at the CNJ an observatory of integrity and transparency of the Judiciary, which met for the first time in November, and divided working groups that include members of the council, academia and courts.
The minister intends to propose standards for issues such as transparency in judicial remuneration, issues related to lobbying and conflicts of interest and integrity and governance systems.
