Dino highlighted the Justice crisis in 2001 and helped create CNJ – 12/12/2023 – Power

When he defended his master’s thesis in 2001 at the Federal University of Pernambuco, the then federal judge Flávio Dino described a scenario that worried him at the time – and which is still very current.

Failure of public security, disbelief in the Judiciary, collapse in health and education, lack of solution to the agrarian issue and fiscal war between states were some factors that drove, in his view, an accelerated process of changes to the 1988 Constitution.

The 37 constitutional amendments approved up to that moment amazed Dino, who could not have known that, 22 years later, they would reach 131 and he would become Minister of Justice appointed to a vacancy in the STF (Supreme Federal Court), with a hearing in the Senate scheduled for this Wednesday (13).

For Dino, now 55 years old, that intense ‘deconstituent’ activity (his word) expressed a broader phenomenon: a crisis of the Rule of Law itself.

According to him, there would be a lack of harmony between the countries’ Judiciary Power and the new phase of global capitalism, in which not only companies and the financial market but also organized crime manage, in practice, to ignore national borders.

In the Brazilian case, Dino points out an even greater discrepancy, because the country approved a Constitution “that presupposed and implied a strongly interventionist State” right when “the ideology that denies it – called neoliberalism – achieved apparently unshakable hegemony”.

The great weight of this disagreement remains for the Judiciary, continues Dino, as it is up to the Justice, and above all the STF, to ensure compliance with the rules of the game, even if many of the political or economic actors no longer agree with these rules.

With a specific focus on the Judiciary, Dino writes in his dissertation about three crises, the first of which is one of identity: on the one hand, judges are called upon to intervene more and more frequently, while on the other, a minimum State is increasingly demanded.

The second crisis, the result of the first, is one of performance, and its main facet is the slowness of process analysis.

As a consequence of the previous two, the third crisis is an image crisis, and this cannot be minimized. As it is an unelected Power, the democratic legitimization of Justice also occurs through its credibility.

For Dino, the creation of a National Council of Justice (CNJ) was essential for the Judiciary to face the performance and image crises, although it had little use in terms of identity.

In his master’s degree, the then federal judge analyzed the proposals on the subject that were processed in Brazil from the 1970s until constitutional amendment 45, which would be approved in 2004 – the so-called Judiciary reform amendment.

He also compared Brazilian suggestions with international experiences (Italy, Portugal, Spain and Argentina) and, more importantly, argued that the existence of the CNJ would not represent a violation of an immutable clause of the Constitution.

Amid the debates about the CNJ, there was a lot of talk that an external control body of the Judiciary would spell the end of the independence of this Power.

Dino refutes this point of view, saying that the rigid separation between the Legislative, Executive and Judiciary is just a myth. Using classic authors of liberalism, he states that the partial interference of one power over another is welcome, as long as limits are observed.

One of these limits, he says, is that each Power must have the competence to regulate administrative issues relating to itself; another is the composition of the external control body, which could not be made up mainly of members of the Executive and Legislative branches.

Armed with this theoretical knowledge, Dino went to fight. First as president of Ajufe (Association of Federal Judges of Brazil) and later as a member of the entity’s board of directors, he influenced the approval of the Judiciary reform and the installation of the CNJ.

“He played a fundamental role”, says lawyer Sérgio Renault, secretary of Judiciary Reform from 2003 to 2005. “He had a great leadership, was very interested in approving the amendment and was very active.”

For Renault, that was a unique window of opportunity, “with important people in important positions”. He highlights Márcio Thomaz Bastos, first Minister of Justice appointed by Lula (PT); Nelson Jobim, who presided over the STF from 2004 to 2006; and Flávio Dino himself.

When the CNJ was installed on June 14, 2005, Jobim was its first president, and Dino, its general secretary. It was mainly up to them to draw up the regulations for the new body.

For lawyer Luciano Godoy, who was a federal judge from 1998 to 2006 and vice-president of Ajufe from 2002 to 2004, Dino always had this vocation for public debate.

“Before, Ajufe was corporatist, very focused on the interests of judges”, says Godoy, for whom this changes when the group of which Dino was part wins the entity’s election.

“In his management, in particular, he had a vision, which I think was quite right, of putting Ajufe to participate in society’s debate, to act on issues of collective interest.”

At that time, initiatives such as the “Justice for All” program emerged, which sought to make the Judiciary more accessible through TV Justiça, and the proposal to computerize the judicial process, for example.

In 2004, when Dino’s group was still leading Ajufe, the first republican pact was signed between the three Powers, with the aim of improving the institutions.

For those who knew Dino at the beginning of his career, nothing in his career seems out of place. This is the case of José Henrique Guaracy, lawyer and retired federal judge.

“We come from the same competition. As soon as we took office, we spent 10 or 12 days on a preparatory course. You could see that he was extremely intelligent, prepared, articulate, determined”, says Guaracy, who passed in sixth place, while Dino came in first .

In 1994, when he was approved to become a federal judge, Dino also began teaching at the Federal University of Maranhão (UFMA). He remained until 2002, when he started teaching at the University of Brasília (UnB).

He interrupted his academic flights, however, in 2006, when he became a federal deputy for the PC do B. His main legacy, in addition to his master’s degree on the CNJ, was the book “Crimes e Infrações Administrativas Ambientais”.

The trajectory of Flávio Dino, 55

• 1984 – president of the Coelho Neto Student Union, at Colégio Marista
• 1987-1988 – general coordinator of the UFMA Central Student Directory
• 1990 – graduates in law at UFMA
• 1991-1993 – secretary of the Brazilian Bar Association/Human Rights Commission, in São Luís (MA)
• 1994 – approved first in the federal judge competition at the Federal Regional Court of the 1st Region, taking office in a solemn session on May 30
• 1994-2002 – professor at UFMA
• 1998-2000 – vice-president of Ajufe
• 2000-2002 – president of Ajufe
• 2000 – member of the Federal Justice Council
• 2001 – approved in the master’s degree in public law at UFPE, with the dissertation “Self-government and control of the Judiciary in Brazil – The proposal to create the National Council of Justice”
• 2002-2004 – director of Legislative Affairs at Ajufe
• 2002-2006 – professor at UnB
• 2005-2006 – secretary general of the CNJ
• 2006 – stops being a federal judge to run for federal deputy. He is elected by the B-MA PC
• 2008 – defeated in election for mayor of São Luís
• 2010 – defeated in election for governor of Maranhão
• 2011-2014 – president of Embratur
• 2015-2022 – governor of Maranhão for two terms
• 2022 – elected senator of the Republic by PSB-MA
• 2023 – Minister of Justice and Public Security in the Lula government (PT)

Understand the hearing for the STF

Recommendation
Flávio Dino was appointed by Lula to the STF on November 27th to fill the position of Rosa Weber, who retired from the court on September 30th.

Sabbath
The hearings of Dino and Paulo Gonet, Lula’s nominee for the PGR, will be held at the same time by the CCJ; senators will be able to ask questions to both of them simultaneously

Questions
Dino may be questioned about his political activities on January 8, in addition to the case of the drug dealer’s wife at the Ministry of Justice and the mention in Odebrecht allegations

Voting
Dino needs to be approved by the CCJ and the Senate plenary with an absolute majority — 14 of the 27 senators on the commission and 41 of 81 in the plenary are needed