The Silence of the Supreme Court

The support systems of the Supreme Court, starting with the justices themselves and spreading through the most unenlightened portion of the Brazilian elite, usually present three standard responses in their defense strategies. The first maintains that the state of shock created in the country by the conduct of its Highest Court is merely the natural result of people’s nonconformity with the justices’ decisions. Such lack of compliance would be mainly because people understand nothing about law, hence, behaving like fans who rant at the referee in a soccer match. The second response claims that the Supreme Court has the right to do everything it has been doing because Brazil lives under the permanent threat of a coup to destroy democracy. Only the relentless vigilance of the justices can save us, and to save us, the court cannot abide by what the Constitution and the laws say; for democracy to exist, freedom and individual rights must be limited. Finally, the third one alleges that there is a conspiracy by the global right to take over the government of Brazil, or something to that effect – worse still, the conspirators want to take over through elections, since the Brazilian voter is not knowledgeable enough to choose what is right. Therefore, it is indispensable to keep the country in a state of virtual siege, which includes the “exceptional suspension” of constitutional rights.

The problem with these three responses is that their arguments are entirely false. It is a serious distortion, to begin with, that the Supreme Court needs a defense system – in genuine democracies, the Highest Court never needs to defend itself from anything because it fulfills its legal duties and complies with the Constitution. But Brazil has not been a true democracy for a long time. It has been transformed into yet another primitive Third World republic, where those in charge are a government junta formed by the Lula system and the Supreme Court justices themselves. In such context, reality is irrelevant. In the case of the excuses that the Supreme Court presents for the permanent scandal it has created around itself, the facts reduce the official truth to less than nothing. The degradation of Brazil’s Highest Court is not due to the legal content of the sentences it signs, but the behaviors the justices display in public. The poison is not what they decide. It’s what they do. There’s no hermeneutics, no propaedeutics here. What counts, really, is the ability discern right from wrong, according to the morality accessible to every human being – and to do what’s right. The justices, however, do what’s wrong.

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It is utterly useless and, above all, hypocritical to discuss legal issues, the “defense of democracy,” the “battle” against fake news, fascists, and “Bolsonarism.” But what is demanded of the justices is not their positions on these smokescreens. Do they think the right, misinformation, and former president Bolsonaro are the worst threats to humanity in the 21st century? Fine: let them feel free to continue thinking so. What is requested of the supreme magistrates is just that they offer some coherent, rational explanation, provided with minimum honesty, to justify the six behaviors described below. If they are capable of responding with minimum logic to any of them, we’ll say no more about it, right?

1 – What is the explanation for the fact that three Supreme Court justices, at the same time, are absent from work to give lectures on Brazilian issues, aimed at a Brazilian audience, in Portuguese – and in London? They are also obliged to inform who paid for their trip and their stay in a hotel with daily rates of R$ 6,000. Obviously, this is not a private life matter; they are high state officials and have, indeed, the duty to account for every penny they receive. In this case, the obligation is especially dramatic. The organizer of the “event” (that’s what they call these things today, as if they were on a par with the launch of any new ordinary product) was a private group that had among its financial sponsors a certain Banco Master (Master Bank) which, in turn, has cases being judged both in the Supreme Court and in the Superior Court of Justice – with 27 of them just in the latter. The question here is simple. Can any court of justice that aims to be respected accept such a deal from a party that will be judged by it?

The silence of the Supreme Court regarding the case cannot be taken seriously. If the three justices did nothing wrong, why on earth do they refuse to give a basic explanation for this? What, exactly, is being kept secret? It gets worse when the organizers conceal not only the names of the companies that footed the bill but also the topics that were discussed at the conference – the press was banned from the room. It gets even worse when considering that the same sponsors shielded the whole thing. At the “event,” in addition to justices Gilmar Mendes, Antônio Dias Toffoli, and Alexandre de Moraes, nothing less than five others from the Superior Court of Justice, one from the Superior Electoral Court, two ministers from Lula’s government, the minister of Justice and the Attorney General of the Union, the Prosecutor General of the Republic, and, to leave no stone unturned, the Director-General of the Federal Police were crammed in. Why is such a squadron of fat cats (thirteen in total, plus the political entourage that usually tags along) attending a private event 9,000 kilometers away from Brasília?

2 – Could it be considered normal that the wives of the Supreme Court justices work in law firms that have cases being judged by it? This is not okay in any legitimate democracy in the world. Is there any reason for Brazil’s Highest Court to say it is? You don’t need to know absolutely anything about Law to see that it’s not right, and it indeed cannot be right, for a justice’s wife to have any connection with the case her husband will judge. If it cannot be so in any case that requires minimum impartiality, why is it so with the country’s Supreme Court, and with Lula’s blessing?

The strangest thing, in this case, is that the Supreme Court itself decided, in a plenary session, to abolish the provisions of the Civil Code that prohibited, as in the rest of the civilized world, judges from judging actions in which they have a direct or indirect interest. What could possibly be wrong with that? It’s not clear, but justice Gilmar Mendes, whose interpretation of the law prevails in the court, says that judges can indeed rule on cases defended by law firms in which their spouses, relatives, and partners are involved. Why? To adhere to the principle of “reasonableness,” says justice Mendes. In other words: the Supreme Court thinks it’s “not reasonable” for the law to prevent a Brazilian magistrate from deciding issues like these. It seems exactly the opposite, by common logic. The reasonable thing is for the judge to stay as detached as possible from processes involving offices that concern their families in any way. But the reasoning of the Supreme Court operates on a different wavelength. At the end of the day, the objective fact is that the wives of justices Alexandre de Moraes, Gilmar Mendes, Dias Toffoli, and Cristiano Zanin are lawyers. Justices Luís Roberto Barroso, Edson Fachin, and Luís Fux are fathers of lawyers. Do the math: that’s seven out of eleven.

3 – Would any minimally serious court, in the democratic world, accept that one of its justices had been, until the eve of his appointment, the personal lawyer of the President who appointed him to the position? To make the situation even darker, it’s not just any president. It’s none other than Lula, the only head of state in Brazil’s history who was convicted – and served part of the sentence – for passive corruption and money laundering. To this day, he has not been acquitted of those crimes; the very Supreme Court annulled his convictions without having reviewed any new fact or evidence related to the case. As a result, Lula placed Cristiano Zanin, who defended him in the criminal cases in which he was convicted, in the Supreme Court.

Lula’s allies, Zanin, and the country’s Highest Court say that the man was approved in a hearing in the Federal Senate. So what? The Senate, the way it is today, would approve the nomination of a donkey to the Supreme Court, if Lula ordered so. This certainly demoralizes the senators, but it does not moralize the court. The personal lawyer of the president is never considered, except in cheap dictatorships, an acceptable name for the highest instance of the national justice system. In a regime where the president constantly resorts to the Supreme Court to annul legitimate decisions of Congress and to protect his political interests, the episode becomes even more shocking.

4 – What is the technical or legal justification for the fact that so far all those accused of corruption crimes have been acquitted by the Supreme Court? These “all-in” rulings include not only 100% of the government’s direct or indirect allies – who are the largest group – but also all kinds of defendants responding for thievery. The main claim of the consortium that governs Brazil today is that “there is no evidence.” But why are the justices so implacable in the demand for evidence for thievery, while demanding no evidence at all to sentence carpenters, barbers, and motorcycle couriers to up to seventeen years in prison for being present at a riot turned by the Supreme Court itself into a crime of “violent abolition of the rule of law?”

Another aspect in this issue, which remains unfathomable to this day is: how is it possible that in one of the most corrupt countries on the planet, according to Transparency International and other renowned organizations, there is not a single corrupt person in prison? There may be, perhaps and provisionally, some small thieves, but not big-time ones – the kind who have their picture in newspapers. The justices, apart from the “lack of evidence” argument, still haven’t offered any hypothesis to clarify this enigma.

5 – Justice Alexandre de Moraes, with the support of the other justices, has kept in prison for eight months, without charging him of any crime, a former chief of the Federal Highway Police. In the real world, this means that the Supreme Court’s police force has not been able to find any evidence against him so far – nothing, at least, that could satisfy the accusers of the Public Prosecutor’s Office. The prisoner, by law, should be free. There is no such thing in Brazilian Criminal Law as “indefinite” preventive detention – the authority either the makes a formal accusation within a certain period or releases the prisoner. But justice Moraes extends the “investigations” each time the deadline expires. In practice, until the release order comes, this is as good as a life imprisonment.

Similarly, a former advisor to former president Jair Bolsonaro is imprisoned under the accusation of having gone with him to the United States on December 30, 2022 – to flee, according to the Federal Police, from investigations about a “coup d’état” of which both would be suspects. It is not known what crime that could be, considering that Bolsonaro himself traveled as well, and remains free. There is also no explanation for the fact that no evidence of this “coup” has surfaced to date, despite almost a year and a half after the accusation was placed. But the problem, before that, is that the former advisor proved that he had traveled to Curitiba, capital city of the state of Paraná, in Brazil, on December 31, 2022. All for nothing. Moraes says that the flight document provided by the prisoner is not sufficient evidence and, as usual, extended the investigations. That’s yet another “feat” of the Supreme Court. The defendant has not only to prove their innocence – when the law clearly states it is the accuser who must prove guilt – but even having done so, remains imprisoned. The Attorney General’s Office requested his release to the justice – also in vain. Moraes himself finally acknowledges having doubts about the facts – situation that, for at least 2,500 years, means the law benefits the defendant. Here it’s the opposite. In case of doubt, keep the defendant in jail.

6 – To end the list (for now), could the Supreme Court give any rational explanation for the fact that it kept a homeless person imprisoned for eleven consecutive months, on suspicion of a “coup d’état”? Didn’t it occur to anyone, during all this time, that it is materially impossible for a beggar to overthrow the government? On another front: is it normal, for the eleven justices of Brazil’s Highest Court, to see their colleague Dias Toffoli show leniency to Odebrecht and J&F, confessed defendants in crimes of corruption, on fines of R$ 15 billion that they themselves had agreed to pay to the Public Treasury? Both companies made a deal, so their directors would not be imprisoned. The way the Supreme Court left things, the bigwigs of the two companies neither went to jail nor had to pay what they owed.

It is public and proven that Alexandre de Moraes practiced censorship – disguised as “defense of the democratic state of law.” This is prohibited by article 5 of the Constitution.

The Supreme Court allows a police inquiry, which justice Moraes had no legal right to initiate, to remain open to this day, five years later –without producing a single piece of evidence. It condones that its internal regulations are above the Constitution. It condones secret judicial actions, the violation of the right of lawyers to defend their clients, and the deprivation of due legal process. What does all this have to do with the defense of democracy? And how would it be possible to make the London jurists believe that everything is fine, if they learned that the court behaves like this?

The Supreme Court, so far, has not given any acceptable answer to any of the issues presented in this article. It claims, solely, that all questioning is an “attack on the Judiciary” – and not the legitimate demand for information on the justices’ actions, which they are legally obliged to account for to the people. Perhaps it convinces itself, the cultural classes, and part of the media that serves the police, Lula, and the government’s propaganda department. But every time a survey asks for the ordinary Brazilian citizen’s opinion, it gets clear that, in in real life, they respect the conduct of the justices less and less.

“De volta ao século 15”