Zanin vacancy can be contested based on prior decision of the STF

The appointment of lawyer Cristiano Zanin to the Federal Supreme Court (STF), made by President Luís Inácio Lula da Silva (PT), runs the risk of being judicialized in the same way as the appointment of the delegate, and current federal deputy, Alexandre Ramagem (PL ) for the command of the Federal Police, in 2020.

Appointed by the then president Jair Bolsonaro (PL), Ramagem was prevented from assuming command of the corporation after Minister Alexandre de Moraes accepted a request from the PDT.

At the time, the magistrate took into account the statements of former Minister of Justice and Public Security Sergio Moro, who accused Bolsonaro of political interference in the PF by dismissing director general Maurício Leite Valeixo and appointing Ramagem.

The then Chief Executive would be dissatisfied with Valeixo’s performance due to PF operations against allied deputies.

In the dispatch, Moraes argued that the exchange carried out by Bolsonaro was “deviation from the purpose of the presidential act”, as well as “non-compliance with the constitutional principles of impersonality, morality and the public interest”. The minister also invoked the principles of administrative morality, public impersonality and collective interest to suspend the appointment.

If the same principle applies to Zanin, Lula will have to nominate another jurist for the post of Minister of the STF. By defending the PT in the Lava Jato processes, the lawyer, in theory, would be prevented from judging the president’s processes because he had a legal relationship.

For the doctor in administrative law Amauri Saad, by appointing his own lawyer, Lula would be confessing that his real interest in the Supreme seat does not match the requirements cited by Moraes for the appointment of a public agent.

“In the case of Zanin’s appointment to the STF, there are at least two confessions by the President of the Republic that illustrate that the real motivation for his appointment was not the public interest or morality: when he said that his appointment to the STF was “his business” and when said that he trusted Zanin because of his role as his personal lawyer in the criminal cases he was accused of,” says Saad.

He adds: “I do not believe that the STF will maintain the same level of rigor with the current nomination, for a simple reason: the shift president is not considered an enemy of the court, but an ally.”

Saad also recalls that “remarkable legal knowledge” is one of the requirements for holding the position.

“Remembering that, apart from the moral issue, there is also the problem of non-compliance, by Zanin, with the requirement of art. 101 of the Constitution of “remarkable legal knowledge”. It is clear that having a bachelor’s degree in law or a lawyer registered with the OAB is not enough. If it were, the Constitution would have indicated these requirements and not the first. Remarkable legal knowledge is something more (in fact, much more) than just being a lawyer. It presupposes a relevant legal work or, at least, a solid performance in public positions (preferably, the judiciary). Zanin has none of that”, said the teacher.

Following the same line, Ângela Gandra, professor of Philosophy of Law and President of the Ives Gandra Institute, explained that despite the prerogative of appointment, the President of the Republic needs to follow the Constitution.

“The main issue in this case is not meeting the constitutional requirements. Friendship and trust are not listed as selection criteria. In this sense, we can even evoke the suspended appointment of Alexandre Ramagem in a position of much less transcendence and decision-making power, due to fear of personalistic choice. The thesis of Minister Alexandre de Moraes could be applied to this indication, in an analogous way”, says Ângela.

The jurist also points out that the choice for the minister of the Supreme Court should be made within the Judiciary itself.

“Most preferably, the appointment should be made considering the candidacy of people with a high judicial record, career judges, with the qualifications and experience required to exercise the function,” he added.

Transparency International criticizes Zanin’s appointment

Despite being expected in the political world, the appointment caused controversy. According to Transparency International, the nomination goes against commitments made internationally by Brazil regarding the independence of the Judiciary. It also affronts the constitutional principle of impersonality and “betrays the promise to rescue democratic institutions”.

The organization claims that Lula “seems” to transform the court into an “annex of the government of the occasion”, and that the country is “faced with choices that will reverse or advance this trajectory of weakening and capturing institutions”.

“It is essential that Brazilian society promotes a broad debate on the composition of its constitutional court, so that our elected representatives in the Senate fulfill their role in defending the public interest and democracy,” said the entity.

And he added: “The appointment of a personal lawyer to the STF contradicts commitments made internationally by Brazil on the independence of the judiciary, affronts the constitutional principle of impersonality and betrays the promise to rescue democratic institutions – completes the NGO.”

More than 5,000 lawyers also criticized the appointment

Zanin’s nomination was also rejected by lawyers. In March of this year, the Movimento Advogados de Direita Brasil published an open letter against the appointment of Lula’s lawyer. In the document, the 5,582 subscribers asked the Federal Senate to reject the candidate, if he is nominated by President Lula.

“It is not, therefore, a purely technical appointment. The choice of the Minister of the Supreme Court is also political, and as a policy related to the Judiciary, it is not enough to be only legal, it has to appear to be Justice. Accept the mere restrictive argument that Zanin possesses attributes that give him notable legal knowledge and an unblemished reputation, at least for a large part of the population, is, at the very least, an affront to the morality of the Republic”, wrote the lawyers.