Source: Legal Consultant - São Paulo / SP - JUDICIARY - 05/12/2009

"The Supreme Federal Court is very generous in receiving so many appeals," said Minister Ricardo Lewandowski, during a meeting at the São Paulo Lawyers Association, this Friday (4/12). Speaking about the effects of the General Repercussion, he recalled that only 1/3 of the funds received have been rejected so far. Despite the “kindness” of the court, the minister celebrated the drop of 43,7% of lawsuits judged by the Supreme Court based on the measures provided for by the Judiciary Reform.

 

"It is indisputable that the General Repercussion already has positive effects on the functioning of Justice," said Lewandowski. He recalled that in 2007, 82 thousand cases were added to the STF. And that this year, so far, the actions have barely exceeded 30 thousand cases. "These data also show that Justice is closer to the population, as the cases are being resolved in the second instance," says the minister.

 

Despite the positive effects, the minister recognizes that the system still needs improvement. Lewandowski complains that, at times, he is the only minister who understands that the issue is infraconstitutional and yet is obliged to discuss it in plenary. The other difficulty is the processes in which there are many issues involved. “Minister Cezar Peluso is also one of the defenders of the dismemberment of this type of process, so that only the issue involving the general repercussion is analyzed. The topic is being studied at the Supreme Court ”.

 

Another positive point of the General Repercussion, defended by the minister, is that, unlike the American Supreme Court, in Brazil all decisions are published in the Official Gazette. In cases of General Repercussion, anyone can have access to the topics that have been granted or denied, while in the United States ministers meet to decide what should or should not be judged without giving the slightest justification. "This reason and others, such as the fact that the STF sessions are televised, show that the Brazilian Judiciary is among the most modern".

 

The lawyer Luis Roberto Barroso, who shared the table with the minister, endorsed the importance that the General Repercussion brought to the visibility of Justice. "With the selection and dissemination of the processes that affect a large part of society, these decisions reach the ears of the population more quickly", he says.
For Lewandowski, as soon as the Supreme Court manages to download its collection of cases - today, there are more than 500 cases in the hands of each minister - the idea is that the court should judge what should really “take time from the ministers of a higher court”, as issues involving anencephalic fetuses and stem cell research.

 

Lewandovski said to lawyers that he knows how subjective the definition of General Repercussion themes is and how difficult it is to defend it in requests. "There are attempts to clarify the theme with definitions, such as that it should be a matter that will affect a large number of people or have a great economic or social impact, but it is known that they are generic definitions", he says. For the minister, little by little, as the decisions of the Supreme Court are published, it will be possible to make it clearer what is and is not General Repercussion.

 

Binding summary

Lewandowski acknowledged that the binding summary also contributes to legal certainty and made a history on the subject. For the minister, the summary makes the cases do not spend years in court at the insistence of a court that insists on a thesis already pacified by the Supreme Court. He says that in the United States, the summary emerged from the idea that the Constitution is above all. Therefore, it is understood that the Supreme Court's decisions must have binding force. "In England, for example, it is part of the lawyers' routine to decorate the precedents of the Supreme Court", says the minister.

In Brazil, the term “binding summary” was mentioned in the 60s by Minister Nunes Leal, who claimed to have created it to remedy a serious “memory problem”, said the minister. “The Súmula was created by him due to the difficulty of memorizing the Supreme Court's decisions. He himself said it was a by-product of his lack of memory ”. At the time, the initiative was criticized for fear of a crystallization of jurisprudence and the summary came to be called the "grave of jurisprudence". "It was also criticized the fact that the summary gives legislative power to Justice and undermines the principle of broad defense, but it is the understanding of the jurisprudence on a certain historical moment, which can be changed or even canceled in the future", defended the minister.

 

For lawyer Luis Roberto Barroso, in the future, the binding summary should disappear, since the evolution of this idea is that the entire understanding of the Supreme Court must be followed as a precedent by all courts. "This contributes to the efficiency of Justice and legal security, because if each court judges the way it suits, we will live in a lottery legal world", he says.
In the view of the lawyer, the problem is aggravated in Brazil, because the country has a culture in which everything is resolved in court, even the legality of the telephone line subscription charge. “How does it look if two neighbors have the same legal issue resolved in different ways? Of course there are exceptions, but most cases must follow a line of thought ”.

 

The powers

The thinking of Victor Nunes Leal, who served as Minister of the Supreme in the 60s for nine years, was illustrated by Eros Grau at the end of the meeting. For the current Supreme Minister, Nunes Leal can be compared to thinkers like Kelsen and Montesquie. "He is more up to date than our contemporary thinkers."
One of the ideas advocated by Nunes Leal is that there is no division between the three powers, as the power is unique. “You can't talk about judicial activism, for example, when you think that the Executive and the Judiciary have veto power over the Legislative. The big decisions were taken by the set of powers ”, defends Eros Grau.

The minister also recalled the concept defended by Nunes Leal that the texts say what his interpreters say about him. “Just as a musical score is transformed into music, the written text is translated by the judge according to his interpretation of it, based on the reality experienced at the time”. For Eros Grau, understanding this can go further. "The Constitution is not from 1988, it is a text interpreted according to the reality we live in today".