Justice Flávio Dino of Brazil's Supreme Federal Tribunal (STF), the country's highest court, said on Sunday (6) that the judiciary's "real and serious problems" are "being mixed with electoral and economic interests, foreign objectives and even personal hatreds". He published the statement on social media, addressing the crisis that has set Justices Alexandre de Moraes and André Mendonça against each other at the court.
Dino opened the post with a line attributed to Aeschylus: "In war, the first victim is the truth". According to the justice, that is what he has seen in the "clumsy debate" about the judiciary. The post then takes up three topics he said deserve deeper discussion: single-justice decisions, the court's criminal jurisdiction and the end of inquiries seen as too old. "I insist on one point: institutional matters are a subject far too serious to be shuffled together with electoral interests or with lies", he wrote. He also recalled what he called the Christian teaching that "the DEVIL is the 'father of lies'".
A promised end to the fake news inquiry
The most political passage concerns the fake news inquérito, an inquiry opened seven years ago to investigate attacks, threats and false news against the court, now overseen by rapporteur Moraes. "Is it possible for a judge, whoever he may be, to 'promise' the end of an inquiry, as if he were a candidate, or to receive applause?", Dino asked. According to Folha de S.Paulo, he did not name the court's president, Edson Fachin. Two days earlier, on Friday (4), Fachin had called for the inquiry to be closed and said that measure, together with a proposed code of ethics for the court, would solve the crisis.
"I am personally in favor of concluding the inquiries, since they were indeed created to end, through criminal charges or the appropriate closures. In any case, we have here an interesting doctrinal debate: before the statute of limitations expires, should an inquiry be archived because it has taken too long? And who decides what 'taken too long' means? Personal opinions? Or legal and procedural criteria?"
Single-justice decisions and criminal jurisdiction
Dino rejected the argument that single-justice decisions, known in Brazil as monocratic rulings, are an evil at the STF. In his view, they are essential in a system of binding precedents, in which other courts must follow case law already settled by higher courts. "If every question with settled case law has to go to the panels, the number of rulings will collapse and delays will grow. That would be good for criminals, serial debtors and the like", he argued. On the court's power to try criminal cases, he defended the status quo. "If you take it away from there, it has to go somewhere. Today there are 23,000 cases at the STF, while other courts have hundreds of thousands", he wrote. Changing the court's constitutional jurisdiction, he said, requires "coherent and planned reforms".
The crisis began on Tuesday (1), when Mendonça lifted the secrecy on reports produced by the Federal Police at his request. According to G1, the documents contained messages suggesting closeness between Moraes and Daniel Vorcaro, former controller of Banco Master at the time of the facts under investigation. Drawing on the police files, Moraes then asked for his colleague's conduct to be investigated within the fake news inquiry, citing signs of uneven handling of the Master and INSS cases; the INSS is Brazil's federal social security institute. Fachin removed the request from the inquiry's scope. The police documents are not probative and cannot be used as evidence in court.
The announced next step is the court's institutional response to the crisis. "There will be no haste, but neither omission. The institutional response will be firm, proportional and rigorous", Fachin said on Friday (4), according to Folha. Dino's post, published 48 hours later, questions the very closure Fachin defended. The debate unfolds in the middle of Brazil's presidential campaign.