Author: José Antonio Dias Toffoli

Source: Correio Braziliense Online - 27/06/2010

Like a factory, the judicial system is geared. This production line is complex and works, often driven by interests, prejudices. It takes time to gain agility. In the words of Minister Dias Toffoli, the youngest of the 11 who make up the Supreme Federal Court (STF), it is necessary to end the culture of litigation, stimulate administrative solutions and integrate careers that interface with the real world. Only then will the country have a better legal structure.

Despite this, Toffoli says that guaranteed access to the courts in Brazil should be seen as a reference in the world. Bureaucracy in the virtuous sense, too. It is what he will preach during the II Brazilian Congress of State Legal Careers, scheduled to take place between the 6th and the 9th of July in Brasília. “It will be a career integration debate aimed at a result: integration itself”, he summarizes. Ex-attorney general of the Union, Toffoli defends the reconciliation of the State with the State and the careers that support Justice with themselves.

Restless, the minister also proposes solutions that would improve the machine's relationship with its employees. For him, Power should be seen as one: horizontal careers, sisters in the DNA and functions, thought as a solution for the future to minimize the disputes that congest functionalism in the Executive, the Judiciary and the Legislative. Below are the main points of the interview granted by Toffoli to the Courier.

Culture of conflict must end

Marcone Gonçalves
Luciano Pires

Vocation for the fight
In Brazil, we have the culture of conflict: any problem that leads to the Judiciary. Why not discuss other ways? Corporations like this because it gives power, it gives demand, it justifies existence, it gives explanation for having good salaries, etc. I am not criticizing here, but you need to stop to see that there are other ways to resolve conflicts. The culture developed that the Judiciary is the one that solves everything. I often say that both in public and private initiatives, managers in Brazil, whether they are an executive of a large private company, an executive in the public sector, a minister of state, a secretary, when he does not know what to do with a problem, send it to the legal. And the legal system sends it to the Judiciary. But the Judiciary has several instances and procedures and will not resolve it the next day. So it is a wrong decision that takes to the Judiciary what should not be in the Judiciary. Why is the legal culture in Brazil shaped for conflict and not for solution? We, at school, at law school, want to learn how to litigate. It is not taught to solve.

Access to the Judiciary
Access to justice in other countries is very expensive. In Brazil, it's cheap. Access to higher levels in other countries is almost only accessible to those with economic conditions. In Brazil, any citizen can. There are countries that, in order to advocate in supreme courts, you have to have a specific exam and a specific approval is required to act in that court. In Brazil, any lawyer acts from the first instance to the Federal Supreme Court.

Production line
We are a conflict resolution production line on behalf of the State. The judicial system, whether the prosecutor, the public or private lawyer, is an essential function of Justice, that is, the defender or even the judicial police brings elements so that in the criminal area a criminal action is carried out, an investigation and a punishment, all these members of legal careers who make up a conflict resolution production line on behalf of the State. They do not act for themselves. If you look only at your activity and do not see that it is part of a production line, you will be an alienated worker in that same vision said by Marx. The CNJ (National Council of Justice), when setting goals, as it did in the administration of Minister Gilmar Mendes, was concerned with this. Now, we have a raison d'être, to respond to society. No one can be a prosecutor, judge or public lawyer for himself. The demands cannot be left unsolved.

Prior analysis
In France, there is a prior analysis of constitutionality, but not for all laws. In our case, what are the biggest demands? Tax law and public service law. Where are the biggest problems from the point of view of so-called skeletons? Tax law and public service law. Why isn't there a seal on this right away, to avoid thousands of demands? Because if the law is unconstitutional there will be no time to generate the skeleton for another generation to pay, for another government to pay.

System advances
The system is already improving, there is no doubt. If you take the Judiciary since the 1988 Constitution, it is another Judiciary. With prior control, the Judiciary will be faster. To stop the problems of Justice, it is necessary to always be talking about the topic. I give two examples: Jews never stop talking about the Holocaust. They say, 'Ah, but it was so long ago!' And has Coca-Cola ever stopped advertising its product on television? Every day you turn on the television, they're talking about Coca-Cola. She does not advertise because she likes to throw money away, but because it is necessary. Sometimes, you have to be repetitive in what you think, which seems to be the obvious, but the obvious has to be said, repeated and remembered every day.

Currency value
If the State was unable to give certainty about the currency's value, let alone that of Justice. So people didn’t trust the managing state, administrator, legislator. They sought the judge state. The idea of ​​looking for the Judiciary was fueled by the bankruptcy of the administrator state in Brazil in the economic sense, that you take a minimum of seriousness in the value of the currency. Do not doubt that the monetary stabilization since 1994 has repercussions in the sense of being able to have a reduction in litigation as, over time, legal certainty becomes greater.

Stability
With economic stability, it is often not worth it to resort because, with the late payment interest you will pay, the debt will end up being more expensive than buying and paying the amount immediately. And there are situations in which the Union itself was condemned in court decisions that had 12% per year of default interest, and in other circumstances it still has the Selic rate (basic interest of the economy) Litigation is the result of the uncertainty of the result. Why was no agreement reached? Because no one had any idea what that was worth. Let's suppose that we have a dispute over a building rental that I bought and you didn't deliver on time, and that has been in dispute for three or four years. In the past, there was no way to have any idea how much it was worth. I have no idea how much that will be worth next month, let alone this whole period. So you will be playing forward, to see if with an economic plan as it will be. This culture of conflict has to do with the culture of inflation.

Integration
We have a background where everything is a crime today. Public management has the following view that whoever is doing something is defending interests. This is another theme that has to be overcome in Brazilian culture. When you are a public manager, in any decision you make someone wins and someone loses. This does not mean that, necessarily, the manager who is making the decision is winning or losing. So, many times, these prejudices need to be overcome and this is only done when people are put together.

False dilemmas
Would you take a medicine that Anvisa (National Health Surveillance Agency) says is ineffective and unsafe for your health? A remedy needs to be safe and effective. Would you buy a drug that Anvisa vetoed and a judge issued an injunction releasing it? Would you fly on an airline that Anac (National Civil Aviation Agency) said is unable to fly? I give these two examples because the private sector does not recognize the legitimacy of the state organs of merit. I wouldn't fly on an airline that works by injunction, I wouldn't buy a drug sold by injunction. And the two examples that I have given are true. In Brazil, it already had medicine sold by injunction and until recently there was an airline that operated for three years with injunction against Anac's decision. The private sector does not see legitimacy in these bodies and ends up resorting to the Judiciary.

UNIQUE HR
We need to end the idea of ​​isolated powers. Power is one. And that goes for human resource management as well. Where is this STF building registered? At the SPU (Federal Heritage Secretariat). It makes no sense to have analysts and technicians as different careers in the Judiciary and the Legislative. It is necessary to create a human resources secretariat for all powers, where careers are under a single coordination. It seems impossible, but it is necessary to pursue this path as we have done with so many other things in the economy and in the social area.

Careers
The judicial system consists of all legal careers. The judge, alone, does nothing if there is no demand. If I don't have a resource here, I have no work. For that, you have to have the lawyer, the prosecutor, the public lawyer, otherwise the demand will not arrive. And these careers had never had a single event, in which each one could present their reasons. What's the idea? These areas do not all dialogue. Some are disputing with others who is the best, who does more for Brazilian society, who is more important. Who does this dispute help? Why not talk together? This is the concept: to put everyone together, discussing the judicial system.

In France, there is a prior analysis of constitutionality, but not for all laws. Where are the biggest problems from the point of view of the so-called skeletons? ”

Do not doubt that monetary stabilization has an impact on the possibility of reducing litigation as legal certainty becomes greater. ”