The proposal currently under consideration by Congress on the fixed duration of the mandate of the ministers of the Federal Court (STF) did not immediately arouse the expected enthusiasm. The debate has strengthened after sentences that have dissatisfied deputies and senators, but it also divides jurists in favor of a reformist agenda of the Court. One of them is the lawyer Ives Gandra da Silva Martins. The expert sees no practical advantage in the change. “We will have the same problems as in the general elections. This will bring even more politics to the Court,” he says.
Other countries around the world, such as Germany and Portugal, adopt the fixed tenure regime. The first proposals under discussion in Congress provide for a mandate ranging from eight to 15 years, without the right of reappointment. In Brazil, ministers have a practically lifetime mandate. They leave office only when they reach the age of 75.
For Ives Gandra it is necessary to change the appointment criteria. The Constitution provides three requirements to be a minister of the STF: being over 35 and under 65, considerable legal knowledge and an unblemished reputation. The choice is up to the president and must be examined by the Senate.
“While the judge competition is very difficult to enter the courts, the filter of legal knowledge notable for the FST is the ornament. Those who are friends of the President of the Republic are chosen”, criticizes the jurist. He claims that the choice of president is linked to a list made up of names voted by legal entities and higher courts.
Any changes to the appointment regime and term of office of STF ministers must be approved in the form of a constitutional amendment, which requires a qualified majority in the House and Senate, as well as two-round voting.
The Minister of Justice, Flávio Dino, candidate for Rosa Weber’s seat in the Federal Supreme Court, is the author of a PEC on the topic, presented in 2009, when he was a federal deputy.
Before leaving the STF, retiring in April, minister Ricardo Lewandowski defended the change. The proposal was also recently supported by President Luiz Inácio Lula da Silva (PT).
Read Ives Gandra’s opinions:
Are you in favor of the proposal for fixed terms in the FST?
I am not in favor of the mandate of a Supreme Court minister because we will have the same problems as in general elections. This will bring politics even further into the Court. The solution is to change the selection criteria. While a judge’s competition is very difficult to enter the courts, the filter of noteworthy legal knowledge for the STF is ornamentation. Anyone who is a friend of the President of the Republic is chosen. The day the STF becomes just the Judiciary, there will be more harmony between the powers and political peace.
The problem is not the length of the mandate, but the way in which ministers are chosen. In the past, Clóvis Bevilacqua and Rubens Gomes de Souza, creators of the Civil Code of 1917 and the CTN still in force today, did not accept the invitation to become ministers of the Supreme Court because they understood that they did not possess notable knowledge. How I miss you. The choice, in my opinion, should be up to the president from a list of 18 names made up of six appointed by the Federal Council of the OAB, six by the National Judicial Council and six by the superior courts (STF, STJ and TST). Eight ministers would necessarily come from the career of magistrates and three, alternatively, from the legal professions and the Prosecutor’s Office.
What impact might the adoption of mandates have on the Court?
I don’t evaluate the positive impacts, but the negative ones would be all the problems inherent to the political powers in every electoral renewal.
Could the change affect the independence of ministers?
The problem with the pressure of political power is that the choice, dependent exclusively on the political will of the president, for the technical exercise in the judiciary, today allows greater political pressure, compared to the way in which I defend a choice of the president, receiving eighteen names for the three highest institutions for the applied exercise of the Law.
Source: Terra
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