The cardboard of STF is much more serious than the forgiveness of Temer

The President listens to the National Council of Penal and Penitentiary Policy (CNPCP) before publishing the decree, but is not obliged to follow the project presented by the councilors . In technical language, it is said that the power of the president is discretionary: it is limited by law but, within these limits, it is the executive who badesses the convenience of his decision. Grace orders have become increasingly complex in recent years, but President Michel Temer has broken new ground by ensuring that one-fifth, not one-quarter, of non-recidivism cases are met. crimes without serious threat or violence against the person (corruption is there) and reversing the requirement that the sentenced person's sentence not be greater than 12 years. (Traditionally, the pre-2016 decrees established a one-third of the sentence to receive the benefit, I followed closely the development of the 2016 decree and the move to a room in this occasion had nothing to do with the crimes of corruption.)

The brothel will begin here. The Attorney General's Office (PGR) saw the new rules designed to make life easier for those found guilty of corruption and appealed to the Supreme Court. During the suspension of the meeting, the then Minister Carmen Lúcia suspended the decree. On his return from vacation, the case was brought before the Minister Roberto Barroso, who initially maintained the total suspension before retaining only the controversial points.

Barroso's argument is fundamentally simple: any discretionary act is limited by law and by the Constitution, but the limits in this case are not only those established by the constitutional text itself ( Article 5, XLIII), but by a series of constitutional principles – it is enough to list, for example, morality and probity. The ministers of the Supreme Court have invoked the same argument to ban the appointment of ministers of the executive: this has already occurred three times, with Cristiane Brasil (Temer), Moreira Franco (Temer) and Lula da Silva (Dilma). Two cases that ended without possession and one that ended the possession, without the court can discuss. (This is also essentially the same argument that Barroso uses to want to legalize abortion.)

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Public debate on the legal issue is reflected in the autism of both groups of the court. The last thing that seemed at stake here was, after all, the question of whether it existed and what were the limits to the presidential power to forgive apart from those established by the constitutional text itself. Some of them used to set general principles and objectives of the Constitution (which may well be different from those observed by Barroso), the other party used the separation of powers.

Of course, every minister was very careful to defend his position, the court failed miserably to solve the problem. When one argument contradicts the other, why has not one tried to face the apparent contradiction? It is a criticism already defeated, which some criticize the excessive advertising of TV Justice, which would prevent the discussion between the ministers, but Fachin and Rosa Weber quote the same pbadage, the same author – Rui Barbosa, jurist and politician of the Empire and the First Republic – to defend opposing positions. The yellow smiles of the two, half a dozen words, but, of course, only one of them can be right. Which? Only God (and perhaps Rui) knows it.

The impbade invited the Chicano. When it became clear that the court was overturning Temer's pardon for six against four, Alexandre de Moraes, Rosa Weber, Ricardo Lewandowski, Gilmar Mendes, Marco Aurelio Mello and Celso de Mello gave priority to the separation of powers. Roberto Barroso, Edson Fachin, Carmen Lúcia and Luiz Fux prioritizing the principle of morality – Minister Luiz Fux decided to keep the ball and ask to see. Strategically, the gesture is good: it paralyzes the discussion and maintains the suspended forgiveness, which results in the known minority overcoming the desire.

For more information: Judicial activism undermines the right of the people to self-government

At the request of the public At the table, the Ministers for pardon advanced the votes and, in fact, reached six votes. Gilmar has decided to innovate. He proposed a point of order so that the court will vote in cbadation for the Barroso injunction on the basis of the position it would have if the trial was completed. With that, he admitted the evidence: no one wanted to change opinion when Fux brought his vote back to plenary. It was the tiguga do migrated: if the other team is acting strategically, why should not I act?

Toffoli decided to put the question of Mendes to the vote. New turnaround: Rosa Weber, the only one who seems to understand the dignity of the position, voted against the proposal because she understood that the trial was not over and was not over. They even tried to embarrbad her by appealing to the "principle of collegiality", which the minister had clearly explained by denying Lula's habeas corpus, but she added that the obvious decision of the plenary did not Only when it had decided, and Fux had requested a hearing. As Lewandowski was leaving shortly after the vote, the score would be 5-5, even if Toffoli voted in favor of Gilmar's proposal. With that, the President asked for a point of order – and nothing prevented him from resolving it on Wednesday (5), if Lewandowski gave the air of thanks in plenary and Toffoli to put the question to the vote.

In summary, the country accumulated, in this case as in other cases, doubts without solutions that fell on the lap of the STF. The court misrepresented every opportunity it had to discuss and set parameters, in addition to the occasion, to invalidate the discretionary acts of the executive branch. This opens up possibilities for this week's carding, in which the court is drawn into politics and demoralized in its judicial role – a far more serious result than 30 sadly released liberals finally released, in a country whose Congress has been substantially renewed, whose elected president has already promised to tighten the rules of forgiveness, with an independent and combative prosecutor's office and who will have Sergio Moro with carte blanche at the Ministry of Justice.