Fake News and Agenda at the STF – 09/17/2023 – Marcus Melo

During the processing of the Social Security reform, in 1996, the STF judged a preventive habeas corpus by Epaminondas Patriota da Silva, against letters issued by FHC that demanded the presentation of the elderly and retired people in crematoriums with the aim of ridding the country of people who did not offered more “advantage to society”. The author of the habeas corpus filed the action to ensure the right to stay alive. He would be a supposed resident of Rocinha. But in reality he was a fictional character.

Habeas was unanimously denied, after the judges joked that they were prevented from judging because they were an interested party. Attributed to sectors of the opposition, the action was filed after the publication of an article in the Tribuna da Imprensa about FHC’s imaginary offices in one of the most farcical fake news episodes in the history of our press.

This bizarre episode interests us for other reasons: it exposed the state of affairs underlying the court’s agenda. In 1996, this already reached tens of thousands of processes, reaching more than 90 thousand in 2010. The contrast with other constitutional courts reveals the colossal difference that exists: the American one judges a hundred a year. And as the case clearly shows, there were no minimally effective filters.

The case of cremation of the elderly was remembered in the debates that marked the resumption of the PEC of Judiciary reform in the Chamber and which resulted in centralizing measures such as the binding summary and other changes incorporated into PEC 45 (2004). It also marked debates on legislation that delegated new powers to rapporteurs in judicial appeals.

These were measures aimed at judicial ungovernability, the best expression of which were the injunctions granted in the first instance against market reforms. They were the serpent’s egg of individual procedural activism, the object of refined analysis in Diego Arguelles’ new book, “The Supreme: Between Law and Politics”.

Many of its effects, however, were not anticipated.

As I stated here in the column five years ago, monocratic decisions on non-conflictive issues were an efficient organizational solution that became disruptive when the stakes were explosive. This “delegation model” was adopted for efficiency reasons and, yes, it has become brutally dysfunctional. Its clearest manifestation was Toffoli’s decision annulling all evidence of Odebrecht’s accusation.

But the problem is not limited to the pathologies of procedural activism; it magnifies the problem of recent hyperbolic political arbitration. The judicial amnesty that has been practiced in the country is not reduced to the absence of collegiality. It’s broader.

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