(THIS ARTICLE IS COURTESY OF BRAZIL 247 NEWS)
LAWYER LÊNIO STRECK SAYS THAT DECISIONS LIKE FUX’S CAN STILL KILL LAW IN BRAZIL
“This interpretive relativism still ends our law,” says the jurist, referring to the decision of STF minister Luiz Fux, who overturned Ricardo Lewandowski’s decision and barred former president Lula from granting interviews with the press
SEPTEMBER 29, 2018 AT 3:04 PM // SIGN UP FOR TV 247
By Lenio Luiz Streck in the Conjur– I was walking through Italy and, in the middle of a lecture on therapeutics, a teacher interrupted me and said: “All right, Professor. We both see a boat and each sees a different boat. So where is the correct answer? ” I answered, candidly: “Teacher, hallelujah. Perfect. It’s a boat. We are together. It’s not an airplane. So now we can begin to see the size of the boat. ”
I tell this to speak of what I have been saying for 20 years or more: interpreting has limits. Capitu betrayed or not Bentinho? Let’s discuss. But Capitu was a woman. No interpretation carries the thesis “Capitu was a man”. For the decision of Minister Luiz Fux to dismiss Minister Lewandowski’s decision is similar to what Eco calls superinterpretation. In the metaphor or allegory of the boat, Fux said that it was not a boat, but an airplane.
Come on. The story is almost universally known: there was the decision – monocratic – of Minister Lewandowski in Complaint 32,035, in response to a request made by Folha de S. Paulo and Mônica Bergamo, in an insurgency against a decision of the 12th Federal Criminal Court of Curitiba that denied the interview with the former president of the Republic of Lula. That is, the decision allowed Lula to give an interview, something that any inmate is entitled to, including Beira Mar and even Adélio Bispo (who stabbed Bolsonaro).
The Novo Party filed an unusual request for Suspension of Limitation, based on Article 4 of Law 8,437 / 1992. Minister Luiz Fux, in the exercise of the Presidency of the STF, revoked the injunction of his colleague. This is the device used, which, incidentally, was not transcribed in Minister Fux’s decision. Let’s read:
Art. 4 It is the responsibility of the president of the court, to whom the knowledge of the respective appeal is entitled, to suspend, in a reasoned order, the execution of the injunction in the actions filed against the Public Power or its agents, at the request of the Public Prosecutor’s Office or of the juridical person of law in the case of overriding public interest or flagrant illegality, and to avoid serious damage to public order, health, safety and public economy.
In what part does this provision authorize Minister Fux to revoke Minister Lewandowski’s decision? Is the New Party a public legal entity interested in flagrant illegality? And what is the serious injury to the order?
But there is something more serious about His Excellency’s mistaken decision: he did not suspend an injunction in the technical sense of the word. In fact, Fux suspended a monochromatic decision that upheld the complaint, as the jurist Marcio Paixão rightly points out. Therefore, it was not an injunction, and suspension was not possible. That is why it is easy – to say the least – a writ of mandamus to the president of the Supreme Court, Minister Dias Toffoli.
More serious: Article 1 of the Political Parties Act says that the political party is a PRIVATE LAW PERSON (this is clear, for example, in SS 4,928). Ready. Nothing else would be necessary here. The minister did not realize this “subtlety”. Soon, the party could not even have entered with the request.
But there is more. There are precedents of the STF on this subject. The matter is peaceful. Let us read part of the vote of the minister Gilmar Mendes (whose matrix everything indicates to be to SL 381-PR) and that is transcribed in more of a decision:
“The interpretation of this provision (article 4 and third and fourth paragraphs of Law 8.437 / 1992) leaves no doubt that it is not possible for the President of a particular Court to hear the application for suspension against decisions rendered by members of the same Court.
Thus, it is not for the Presidency of the Federal Supreme Court to hear the requests for suspension of decisions rendered by the other ministers of the Supreme Court.
This means that the preliminary injunction challenged in the Constitutional Complaint that is being processed in this Court is still pending judgment of an aggravation, does not serve as a parameter for the order of suspension “(SL 381-PR) Rel. Min. Carmen Lúcia “(…).
8. A different understanding would enable the President of the Federal Supreme Court to act as a reviewer of the injunctions issued by the other Ministers, which is inadequate, since they are composed of the same court, and there is no need to consider internal hierarchy.
In these terms, a possible error in the judicial provision must be raised by own resource exhaustively provided for in the procedural legislation, and the conversion of the contractual measure, of an exceptional nature, as a substitute for a remedy is not possible. ”
That simple. Or complex. It should be noted that I only examined the legality of the decision. I did not enter into your political aspect …! I’m just a constitutionality. Without important relatives and coming from the interior, the land of Bagualossauro, the oldest dinosaur in the world (Agudo, RS, of which New York is 10,893 km).
The Italian teacher I was able to convince. With all my heart I hope – in the metaphor with which I started the text – to convince the legal community that a boat is not an airplane.
This interpretive relativism still puts an end to our Law. That has to be said.