STF Justice’s Suspension of “Judge of Guarantees” Implementation Sparks Controversy

RIO DE JANEIRO, BRAZIL – After being passed, sanctioned and deferred, the implementation of the so-called “judge of guarantees” (examining magistrate) into Brazilian courts was put on hold for an indefinite period on Wednesday, January 23rd.

Justice Luiz Fux, currently vice-president of the Federal Supreme Court (STF), decided to suspend its implementation, overruling last week’s temporary restraining order by Presiding Justice Dias Toffoli, who had allowed six months for the measure to come into force.

“I note that such significant loopholes have been created in the legislation that the Judiciary itself does not even know how the new measures should be adequately implemented,” argued the Justice. His decision pleased the Minister of Justice, Sérgio Moro, but thwarted the Chamber President, Rodrigo Maia, and rekindled tension between the Legislative and Judicial branches.

Fux, who is the rapporteur for four actions dealing with the matter, issued his order days after he took interim command of the Supreme Court – which is in recess – in place of Toffoli. The vice-president of the Supreme Court overturned the injunction that had been granted by the president of the Court.

“The practical result of these constitutional breaches [as the Justice describes the measures approved by Congress] is lamentable but insightful: the tasks that should have been carried out in the legislative branch are unduly delegated to the Judiciary,” Fux writes in his decision.

The role of the “judge of guarantees” is included in the anti-crime package passed by Congress – recently sanctioned by President Jair Bolsonaro – despite a suggestion to the contrary by the Minister of Justice, Sérgio Moro, who had already opposed the measure.

It establishes that the judge in charge of overseeing and coordinating a criminal investigation will not be the same magistrate who will conduct the trial. “With all due respect, I have always said that I was against the introduction of the judge of guarantees in the anti-crime project,” wrote Moro on his Twitter profile on Wednesday.

“It is, therefore, necessary,” continues the Minister, “to praise Justice Fux’s decision to suspend Law 13.964/2019. It is not simply a matter of being either for or against the judge of guarantees. A structural change in the Brazilian judiciary requires great study and reflection. It cannot be made on the spur of the moment. It is also difficult to demand that the Judiciary correct omissions or inadequacies in a recently passed text as if it were a legislator. The concept of holding public hearings in the action before the STF is also excellent, which in practice calls on everyone for a better debate”, concluded Moro, emphasizing how Fux intends to reopen the legislative debate, this time in the legal sphere.

“Unnecessary and disrespectful”

Meanwhile, Chamber President Rodrigo Maia protested. “I believe that Justice Fux’s decision is unnecessary and disrespectful to the Brazilian Congress and to the Brazilian Government, to the other Powers,” he told the newspaper Folha de S. Paulo.

“We cannot start February with a positive growth expectation, with the STF sending a very negative message to Brazil and to foreign investors in our country”, he complained. According to Maia, however, “the main one attacked” by Fux’s decision was Dias Toffoli.

“I trust the STF, I trust its justices and I primarily trust the [Pesiding Justice] Dias Toffoli, who on his return [from recess] I am sure will restore normality in the balance between the Powers,” Maia said.

In his decision to overturn Toffoli’s injunction, Fux said officials must wait for an examination of the case by the full Supreme Court. “At this point, save in exceptional cases, the injunction must be truly reversible and cannot produce, even if unreasonably, a consummate fact that raises practical obstacles for the implementation of the future decision to be adopted by the court, whatever it may be,” he wrote.

“The substance of this court rests on the collectivity of its judgments, on the collective construction of the judicial decision and on the interaction between the various moral and ethical perspectives afforded by the judges who take part in the deliberations. For this very reason, I believe that the action of the rapporteur should preserve and value, as much as possible, the performance of the collegiate body,” he added.

This is not the first time that the STF has suspended and focused on legislation passed by Congress, but the new tension comes at a time when the Executive, Legislative and Judiciary were succeeding in pacifying a very troubled relationship in recent months.