The Curmudgeon on The Gang of Four (Part II)

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – This week’s news continues to be concerned with the “mensalão” scandal and the way the Brazilian Supreme Court (“STF”) conducts the trial. Since there were no decisions reached by the time The Curmudgeon readied his pen (ok, his cursor), he will once again resort to questions.

Q: Who are these guys?
A: The eleven guys in togas comprise Brazil’s highest court, which (usually) only hears appeals of cases decided by lower courts, particularly those involving questions of constitutional interpretation. The STF has Justices appointed by the President for life or until they turn seventy, whichever comes first. [SPOILER ALERT! DON’T SKIP DOWN TO THE LAST PARAGRAPH!]

Q: Why are they hearing these cases?
A: The Brazilian Constitution has provisions which grant a “privileged” forum to, well, people with privileges. In the case of federal senators and deputies, the only court which is competent to try them is the STF. Several of the defendants are (or were) federal deputies.

Q: So, why are all those other guys being tried by the STF?
A: Good question, one that one of the Justices has asked several times. The answer is that when the crime allegedly involves the participation of more than one person, all of those persons are “necessary” parties and must be joined as defendants in the same trial. Here, all but one of the non-elected officials received the dubious “privilege” of having the STF try their cases because of allegations of their mutual criminal involvement.

Q: Back to the STF, how do the Justices get involved?
A: The Presiding Justice appoints one Justice to be the “Relator” and another to be the “Revisor”.

Q: Thanks a lot! Care to translate that?
A: In UN proceedings a “Relator” is usually called a “Rapporteur” from the French word for (you guessed it!) reporter. His job is to prepare a report of the case, which details its history from day one, setting out the allegations, the evidence produced, the defenses and other evidence, the meandering procedural nuances, etc. This report is to be used by the other Justices as the foundation for their analysis of the facts and the law.

Q: What if the Relator gets it wrong?
A: Enter the “Revisor”! His job is to review the entire report and to “revise” or edit it, poking holes in it or suggesting changes where the report is not supported by the record or the law. Thus the remaining Justices can pick and choose whose version of the report they prefer, when casting their votes.

Q: Where are we now?
A: The Relator called for a vote on each of five main counts, covering all of the defendants charged under that count. The Revisor called for a separate vote on each of the defendants in alphabetical order. So far, the Relator’s position has been supported by all the other Justices. The Relator has cast his vote on the first count and is now casting his vote on the other counts. He’ll be at it for a couple more days. Then the Revisor gets to cast his vote on each of the five counts.

Q: What happens then?
A: The remaining Justices all vote, one by one, count by count. As it happens, on September 3rd, one of the Justices turns seventy years old and must retire. So, depending upon how long-winded his brethren are, he may have voted on some counts, but not all.

Q: What happens then?
A: Don’t ask, don’t tell.

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Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, fetched up on these shores exactly 35 years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)