Source: Jornal do Commercio Brasil - RJ - 31/08/2009

The 21st century belongs to the Judiciary, affirmed the Minister of the Supreme Federal Court (STF) Ricardo Lewandowski, in a lecture at the Fundação Getúlio Vargas School of Law, in Rio de Janeiro, last Friday. The minister affirmed that the protagonism of Justice arises from the greater demand from society, which, since the 1988 Constitution, has come to know and, mainly, to demand its rights. “It is not that the 11 STF ministers suddenly decided to intervene more actively in the economic or social process. This remains within an effectively broader framework, ”said the minister, in response to criticisms about the Supreme Court's activism.

Activism, in fact, was a word that Lewandowski sought to avoid in order to define the Supreme Court's greater role in political and social issues, as seen in recent years. The minister explained that the Legislative had its moment, especially in the 19th century. The Executive, in turn, had a greater role in the following century, when the State needed to give quick and immediate responses to stimuli. "This was the century of the 1st and 2nd great war and economic globalization", recalled the minister.

According to him, the evolution of the powers ended up resulting in the expansion of the population's rights. The minister commented that society is currently experiencing the fourth generation of rights, due to advances in areas such as computer technology and biological technology.

“The main attribution of the Judiciary in the 21st century, much more than responding to subjective and individual problems, will be to make fundamental rights effective. These rights are understood in their various generations as a patrimony of humanity ”, explained the minister, citing civil, political and individual rights as the first ones that were consolidated.

speed. “The great protagonist in the 21st century is the Judiciary, and the Judiciary needs to respond quickly to the demands that society places on it with regard to the realization of these fundamental rights. Especially because the justice that is late is also the one that fails ”, added the minister. According to him, with a view to resolving the issue of delay, the derivative constituent added to the Constitution the right to a reasonable duration of the process, through Amendment 45, approved in December 2004 to promote the first part of the Judiciary Reform.

According to Lewandowski, the explosion of demand in the courts also contributes to the greater role of the Judiciary. "The 1988 Constitution opened the doors of the Judiciary wide open because it stipulated the principle of the universality of jurisdiction, that is, the principle that no injury or threat of injury can fail to be brought to justice," said the minister. In this sense, he cited as an example the various instruments that were created to allow greater access for citizens, including the injunction and injunction, the public civil action, the Direct Action of Unconstitutionality and the strengthening of the Public Ministry and the Public Defender's Office.

According to the minister, the role of the courts - especially the STF - became even more evident when it started to decide conflicts based only on constitutional principles. ”The Judiciary started to explore the constitutional richness of the Constitution, that is, it started to draw consequences from principles such as the republican, democratic, human dignity, isonomy, reasonableness, proportionality, morality, administrative efficiency, legal security, among others, ”he said.

nepotism. This exemplifies the decision of the Supreme Court that prohibited the practice of nepotism. The minister recalled that the determination resulted in the publication of a binding summary, which obliged not only the Judiciary, but all other administrative bodies, to follow this direction. According to him, this new performance increased the role of the Judiciary, leading many to believe that it would be allowing the principle of separation of powers to be observed.

“The STF affirmed with all the letters that the prohibition of nepotism - which is valid for all organs of the Judiciary, Legislative and Executive branches - does not depend on the law. The determination could be extracted directly from the caput of article 37 of the Constitution, which establishes the principles of morality, impersonality and efficiency. The Supreme drew this understanding from the principles, which in the past might perhaps have been considered mere elocrubations of the constituent's abstract character, and gave them understanding. It is not just the Supreme that does this. It's something that comes from the first instance judge, ”said Lewandowski.

With regard to the specific action of the STF, the minister explained that instruments such as the summary or general repercussion, created by Constitutional Amendment 45, allowed the court to address the most relevant issues. Another mechanism that made the court's decisions even more evident was the one that made it possible for the Supreme Court to determine over time the effectiveness of its decisions, through modulation.

“Modulation takes into account reasons of legal certainty or relevant social interest. When the Supreme Court declares an unconstitutional rule, the decision retracts. A standard can be in effect for 20 years or more. As the process of declaring unconstitutionality takes time, the decision would have an effect and could affect people and their assets, causing a revolution. Modulation increased the STF's ability to intervene in political and social reality. This instrument gave a great strength to the Supreme Court ”, concluded the minister.