The expansion of the STF as a political arbiter will have consequences – 09/10/2023 – Marcus Melo

When there was speculation about Lula’s arrest in 2017, I argued that he would probably be arrested and eventually pardoned. The conjecture proved correct. The annulment of proceedings and evidence is the functional equivalent of a “judicial amnesty”. From a positive and non-normative perspective of political science, it does not matter whether the decision is legal or legitimate, but why certain phenomena are expected to occur and what their consequences are.

Historically, in the country, there is a pattern of resolving serious political conflicts through amnesty and conciliation. There were 52 amnesties since 1890. The main objective was “political pacification”, as Ann Schneider showed. But the analogy ends here. There are two aspects that deserve highlighting. The protagonists of the great episodes of amnesty, pardon and grace were the presidents —Floriano (Armed Revolt), Vargas (Constitutionalist Revolution), Kubitschek (Aragarças), Figueiredo (armed struggle)—, not the Judiciary.

On the other hand, the amnesties concerned political and military crimes, not episodes of corruption whose punishment acquired an almost consensual character in public opinion (average support of 94% in 2016-17, in Ipsos). Consequently, its legitimacy has been sharply contested.

The “judicial amnesty” represents an anomalous expansion of the STF’s role as a political arbiter. And it will have vast unanticipated consequences. It engenders a hyperpoliticization of the court and an unparalleled polarization (which in other countries manifests itself on issues such as abortion). The evidence is eloquent: 44% of voters trust the STF, and the same 44% do not. In Lula’s group of voters, 81% trust the court; in Bolsonaro’s, 91% do not do so.

Unlike political amnesty, judges cannot argue that the objective is “political pacification”, so they resort to juggling.

The “judicial amnesty” also has systemic consequences: the extinction of the Lava Jato cases and the annulment of the evidence will have an effect on more than a hundred cases. The case of the current president provides a collective shield, which explains a kind of pact of silence, despite the magnitude of what is at stake.

The situation in which this occurs intensifies the conflict. The Mensalão trial and Lava Jato were examples of control actions against the abuse of rulers who were in power (the PT), not outside it, as now. This gave him enormous legitimacy. The current reaction takes on the character of a vendetta against losers, partisanizing the conflict and undermining the institutional legitimacy of the court. In this movement, control of the Judiciary becomes the main objective — the trophy — of the political dispute.

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