There is no judicial activism in Brazil, says Michel Temer, for whom “politics provokes justice”

LONDON — Former President of the Republic, Michel Temer, said today that there is no judicial activism in Brazil — a topic that has been widely debated in recent years.

“There is nothing like that,” Temer said during the event I Brazilian Legal Forum of Ideas, organized by Grupo Voto here in London. “What there is, often, is an interpretation of the constitutional system.”

He also said that it is necessary to remember that the jurisdiction is inert — that is, it only acts if provoked — and that the Judiciary is very active because “all issues are taken to it.”

“Whenever there is a conflict, it is taken to the Judiciary. And those who provoke the Supreme Court the most are precisely the political class,” said the former president. “When someone is not successful in the Legislative branch, they immediately take the issue to the STF — and once there, obviously the STF has to decide on the matter.”

Regarding criticism of the role of the Judiciary in issues related to politics — such as the January attacks — Temer said that attacking the democratic State is prohibited by law.

“The Judiciary is literally applying the text of the Brazilian Constitution. Therefore, when we talk about activism, we have to take these issues into account.”

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In the same panel, Luis Felipe Salomão, Minister of the Superior Court of Justice, agreed with Temer’s view.

Asked if he thought that the Judiciary ended up governing the country, he said that “those who take problems to the Judiciary are the citizens, the political class, which has lost the degree of internal negotiation and takes the resolution of problems to the Judiciary.”

“Issues of customs have also gone a lot there. These are phenomena of modernity that I think the Judiciary is not to blame for. He’s even a kind of victim.”

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In another panel, Antonio Saldanha Palheiro, Minister of the STJ, said that the court has received an avalanche of cases in recent years — especially habeas corpus requests.

“I only see one way out of this, and that is to strengthen precedent systems,” he said. “With the precedent system, cases tend to stall at the beginning, because they will just follow the precedents of the supreme courts.”

He noted that there is already a migration in Brazil from the conventional system of civil lawfrom free conviction, to a mixture of it with the system of precedents, the common law.

“But the difficulty is great, because we were all trained in the system of free conviction. Few judges have training after 2015, when the precedent system was strengthened,” he said.

To illustrate this difficulty, the Minister told an anecdote about a journalist who asked Bob Marley what he needed to do to become a Rastafarian. “Born again,” replied the musician.

“We’re kind of like that. We have to completely change our mindset to understand this change. And we have to make a my fault because our precedents are not of the highest quality. It’s hard to find a precedent that doesn’t have an ‘except if…’, ‘except in…’,” he said.

Pedro Arbex