Dalmo Dallari on Gilmar Mendes: "Didn't I warn you?"

Heberth Xavier_247 - Ten years ago, exactly on May 8, 2002, the Folha de S. Paul He published an article that would generate great controversy. Titled "Degradation of the Judiciary," the article, written by jurist and professor at the USP Law School, Dalmo de Abreu Dallari, strongly questioned the nomination of Gilmar Mendes to the Supreme Federal Court (STF). The appointment would take place days later, even with Dallari's strong criticism, echoed by many people in the field and on blogs and websites of the time.

Since then, Mendes has been at the center of attention in numerous controversies. In 2009, he participated in a famous and heated discussion in the full court with his colleague Joaquim Barbosa. Dallari, who personally knows many ministers of the STF (he was Ricardo Lewandowski's professor, taught Cármen Lúcia, and mentored Eros Grau), compared the event to a "street brawl": "Both could have avoided the episode, but the great blame lies with the president of the STF, Gilmar Mendes, who displays an exaggerated exhibitionism, a search for the spotlight, for the press. In addition to his authoritarian tendencies, which are nothing new."

A year later, in 2010, on the eve of the presidential elections, the Supreme Court met to judge the requirement of presenting two documents to vote in the elections. The score was 7-0 when Minister Gilmar Mendes requested a review of the case. The judgment was interrupted. Later, the information circulated, later confirmed in a report by [source name missing]. Folha de S. PaulIt was stated that Mendes' decision was made after speaking with the then PSDB candidate, José Serra, by telephone. At the time, Dallari declined to comment on whether or not he had spoken with the PSDB candidate and its implications ("As a lawyer, I reason based on evidence"), but contested Mendes' attitude: "From a legal standpoint, it is a decision totally devoid of foundation. The request for a review had no legal basis whatsoever; there was no doubt to be resolved."

But the biggest controversy is the current one, involving Brazil's most popular politician, former president Luiz Inácio Lula da Silva, accused by Mendes of blackmail and pressuring the Supreme Court. [He was contacted by...] 247In an interview with Dallari, he readily admits: "Didn't I warn you?"

Here are some points highlighted by the legal expert in the interview with... 247:

Supreme Federal Court in the Media

"I think it's very bad for the image of the Supreme Court that one of its justices is so exposed in the media for so long, always embroiled in controversies. Not that I consider it good to be secluded, on the contrary. It's interesting that you publicize the actions of the Supreme Court, so that the population is better informed about the decision-making process in the court. But there is something wrong when a Supreme Court justice lives in the media, and always in controversies."

TRUTH OR LIE?

"I cannot make a categorical judgment about what Minister Gilmar Mendes said. It's unclear where the truth lies. If I had more certainty about the facts, I could say more. But, in any case, two things can be stated immediately: the first is that it is absolutely unacceptable for a Supreme Court minister to constantly engage in polemics with the press, at a level that resembles a personal confrontation. This is not part of the duties of a Supreme Court minister. The other thing is that Gilmar's accusations are extremely dubious. They were made belatedly and without the most basic element, which is confirmation from the only witness. On the contrary: Minister Jobim (Nelson Jobim, who was a minister under FHC, Lula, and the Supreme Court itself) denied the content of what was denounced."

PREDICTION

"Didn't I warn you? In that article for Folha, I already showed, with facts, the problems that the Brazilian Judiciary would face with Gilmar Mendes on the Supreme Court. There are no surprises, at least not to me. At the time of his nomination, there was already information, for example, that he hired, as Attorney General of the Republic, staff for his law school preparatory course. An interesting detail is that Gilmar Mendes had 14 votes against his nomination to the Supreme Court. This broke a tradition of unanimity that existed in the Brazilian Senate. In short, he is definitely not a highly reliable figure to represent such an important position."

LEGAL IMPLICATIONS

"First, it's important to remember that, if Gilmar Mendes' new statement were true, if he had truly been a victim of blackmail, the natural course of action would have been to immediately file a complaint with the Public Prosecutor's Office. Why only now? That said, there are doubts about the true extent of what was supposedly said. Even if Lula made references to the mensalão scandal, it's doubtful whether this would have such significant legal implications, as it seems to have been an informal conversation at the home of a mutual friend. I reiterate two points: it's difficult to determine with certainty, as there is no evidence whatsoever that Gilmar Mendes is telling the truth, only his word; and, if he had the seriousness that some want to portray, the complaint would have to be filed immediately. Or wouldn't it?"

Read below the article that Dalmo de Abreu Dallari published in Folha de S.Paulo on May 8, 2002:

Degradation of the Judiciary

DALMO DE ABREU DALLARI

No modern state can be considered democratic and civilized if it does not have an independent and impartial judiciary that takes the Constitution as its highest standard and has the effective means to prevent arbitrariness and corruption, thus ensuring the rights enshrined in constitutional provisions.

Without respect for rights and for the bodies and institutions responsible for protecting them, what remains is the law of the strongest, the most audacious, the most cunning, the most opportunistic, the most demagogic, the most detached from ethics.

These considerations, which merely reproduce and summarize what has been stated and reaffirmed by all theorists of the democratic rule of law, are necessary and timely in light of the news that the President of the Republic, with very strange boldness and imprudence, has submitted to the Senate a nomination for a member of the Supreme Federal Court, which can be considered a veritable declaration of war by the federal Executive Branch against the Judiciary, the Public Prosecutor's Office, the Brazilian Bar Association, and the entire legal community.

If this nomination is approved by the Senate, it is no exaggeration to say that the protection of rights in Brazil, the fight against corruption, and constitutional normality itself will be at serious risk. Therefore, it is necessary to draw attention to some serious facts so that the people and the press remain vigilant and demand that the authorities rigorously and honestly fulfill their constitutional duties, with the firmness and transparency indispensable in a democratic system.

According to reports in various media outlets, a major operation is underway to undermine the Supreme Federal Court, making it completely subservient to the current head of the Executive branch, even after his term ends. A sign of this offensive is the now-confirmed nomination of the current Attorney General of the Union, Gilmar Mendes, a high-ranking official subordinate to the President of the Republic, for the next vacancy on the Supreme Court. Beyond the president's strange haste—since the nomination was announced before the vacancy was formally opened—the nominated individual is far from meeting the necessary requirements to be a member of the country's highest court.

It is worth remembering that the Supreme Federal Court (STF) has the final say on the constitutionality of laws and the actions of public authorities, and will play a key role in holding the President of the Republic accountable for illegal acts and corruption.

It is important to point out that this high-ranking Executive branch official specialized in "inventing" legal solutions in the government's interest. He was a very close advisor to former President Collor, who was never known for respecting the law. During Fernando Henrique's government, the same Dr. Gilmar Mendes, who belongs to the Federal Public Prosecutor's Office, appears advising the Minister of Justice, Nelson Jobim, in an attempt to annul the demarcation of indigenous areas. Alleging unconstitutionality, a claim twice denied by the Supreme Federal Court, they "invented" a legal argument that served as the basis for a decree by President Fernando Henrique revoking the decree on which the demarcations were based. More recently, the Attorney General of the Union, defeated in court in another case, recommended that administrative bodies not comply with court decisions.

Measures of this type, proposed and adopted at the suggestion of the Attorney General of the Union, were often clearly unconstitutional and provided grounds for the granting of injunctions and decisions by judges and courts against acts of federal authorities.

Outraged by these judicial defeats, Dr. Gilmar Mendes made numerous pronouncements in the press, grossly attacking judges and courts, culminating in his explicit statement that the Brazilian judicial system is a "judicial madhouse."

Obviously, this gravely offended all Brazilian judges mindful of their dignity, which was clearly expressed in an article published in “Informe,” the publication of the Federal Regional Court of the 1st Region (edition 107, December 2001). In a serene and objective text, significantly titled “Judicial Asylum” and signed by the president of that court, it is observed that “it is not unjust decisions that cause the irritation, the wrath, the irritability of the Attorney General of the Union, but decisions contrary to the measures of the Executive Branch.”

And there was no shortage of insults directed at the lawyers, because, in the opinion of Dr. Gilmar Mendes, every injunction granted against an act of the federal government is the product of corrupt collusion between lawyers and judges, partners in the "injunction industry".

In addition to this disrespect for legal institutions, there is another ethical problem. The magazine “Época” (April 22, 2002, p. 40) revealed that the head of the Attorney General's Office, that is, Dr. Gilmar Mendes, paid R$ 32.400 to the Brazilian Institute of Public Law – of which Dr. Gilmar Mendes is one of the owners – so that his subordinates could take courses there. This is contrary to ethics and administrative probity, and is far from meeting the “unblemished reputation” requirement stipulated in Article 101 of the Constitution for someone to be a member of the Supreme Court.

The legal community knows who the nominee is and cannot remain silent and submissive while this notoriously inadequate choice is made, contributing, through its inaction, to the public questioning of the candidate by the Senate, as provided for in Article 52 of the Constitution, becoming merely a sham or a "friendly arrangement." This is how institutions are degraded and the foundations of the democratic constitutional order are corrupted.