Reiterating Luiz Fux

Isolated, Luiz Fux does not consider the precautionary measures imposed by Alexandre de Moraes against the coup plotter Jair Bolsonaro to be pertinent. Why does the minister-jiu-jitsu fighter not surprise us? For several reasons, some of which have been described in this column on previous occasions. It is worth reiterating them.

Minister Luiz Fux became the figure to be strategically exploited by Jair Bolsonaro's defense after expressing disagreement regarding the sentencing guidelines applied to the already convicted coup plotters, then personified in the hairdresser-graffiti artist Débora Rodrigues dos Santos.

What is happening now with Luiz Fux is quite illustrative. The minister voted in line with rapporteur Alexandre de Moraes to accept the charges against Bolsonaro and seven accomplices in the coup. However, when delivering his vote, he posed as a guarantor of rights, questioning the extent of the sentences being applied to the coup plotters of January 8th, which could signal a future lenient stance towards the former president – ​​and this is now confirmed with his vote on the preliminary injunction.

It is not yet known what Fux gains by endorsing Bolsonaro's narrative of persecution, but we will find out.

In reality, the jiu-jitsu fighter magistrate is not, and never has been, a guarantor of rights, as shown by the number of habeas corpus petitions he granted in 2024. In legal circles, habeas corpus indicates a judge's "guarantor coefficient." Of the 1.430 habeas corpus petitions that landed in Fux's office, only 13 were granted – meaning his "guarantor coefficient" is at the very low level of 0,91%, the second lowest in the Supreme Court – only Flávio Dino comes after him, with an index of 0,27%. By this criterion, the most guarantor minister is Edson Fachin, who, last year, granted 138 habeas corpus petitions, having received 1.543 – an index of 8,94%.

Among its many flaws, this column has the distinction of fostering professional relationships with brilliant legal experts. The other day, we heard one of them explain why an attempted coup d'état should be severely punished, understanding severity as the swift application of the law. "But will someone be punished for something that didn't happen?" we asked. Of course, simply because, had the coup been consummated, the coup plotters would be in power, dictatorially seizing control of institutions, including the Judiciary. No one would be indicted, tried, or, much less, convicted. Only darkness would remain.

Another skill of Minister Fux is his use and abuse of requests for review. In August 2015, he requested a review of Extraordinary Appeal 635.659/ADPF 187, which deals with the decriminalization of drugs and discusses the constitutionality of article 28 of the Drug Law (Law 11.343/2006). The judgment remains stalled to this day.

In November 2021, after the vote of the rapporteur, Minister Ricardo Lewandowski, Fux requested a review in a case concerning the Electoral Fund (ADI 5.998/DF), which discusses the validity of the parliamentary amendment that increased the Electoral Fund to R$ 5,7 billion, circumventing the infamous spending cap. The postponement allowed the 2022 elections to take place with the expanded fund, without a definition of its legality. The case remains unresolved.

In May 2023, Luiz Fux requested a review, after the vote of rapporteur Gilmar Mendes, of ADI 6.057, which questions the autonomy of the Central Bank conferred by Law 13.848/2019. Fux has not yet returned the case files, violating Amendment 58 to the Rules of Procedure (the 90-day amendment), which dates from 2022, but does not establish sanctions for those who fail to comply with it.