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Pillar of Brazil’s Supreme Court retires
Renato Alves . Oct 12, 2020
Celso de Mello retires from the Supreme Court after 31 years. Photo: Nelson Jr./STF
Since Brazil’s return to democracy in the late 1980s, the country’s Supreme Court has faced many bumps and controversies along the way. The highest judicial body in the land has been the stage of earth-shattering trials, it sent a former president to jail, it had its chief justice presiding over two impeachment trials, it faced threats from radical groups, and it saw itself at war — sometimes veiled, sometimes not — with the other two branches of government.
One thing, however, has remained constant: the presence of Justice Celso de Mello, the court’s longest-tenured member, who now reaches the mandatory retirement age of 75 and steps down after 31 years. The story of the Supreme Court during democratic times is intertwined with Justice Mello’s own career.
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<p>And on October 13, the Supreme Court will lose its staunchest defender of individual civil rights. Celso de Mello famously <a href="https://www.conjur.com.br/2007-abr-30/qualquer_seja_tipo_moradia_ela_inviolavel">voided a police raid</a> of a homeless man’s tent, considering that the tent was the man’s legal domicile and, therefore, no police action could take place there without a warrant, or before 6 am, as Brazilian law dictates. </p>
<p>Furthermore, since 2019, Justice Mello has also distinguished himself as the court’s most-vocal opponent to President Jair Bolsonaro. He has used his decisions to counter what he sees as the head of state’s threats to democratic order — going as far as comparing the current moment to the <a href="https://brazilian.report/power/2020/05/31/tensions-grow-in-brazil-with-protests-in-brasilia-sao-paulo/">crumbling of the Weimar Republic in Germany</a>, which saw Adolf Hitler become chancellor. </p>
<p>“With all necessary caveats, the ‘serpent’s egg’ seems to be ready to hatch, like what happened in the Weimar Republic,” he said, in a statement to his peers.</p>
<p>In his last trial, Justice Mello once again positioned himself in defiance of the president. He voted <a href="https://brazilian.report/power/2020/09/12/supreme-court-jair-bolsonaro-feud-new-chapter/">not to allow Mr. Bolsonaro to provide written testimony</a> to investigators who are examining alleged illegal presidential interference in the Federal Police. “Nobody, not even the head of the Executive branch, is above the Constitution,” he declared, in what was the Brazilian judiciary’s answer to a mic drop.</p>
<p>Now, President Bolsonaro will select Celso de Mello’s replacement on the country’s highest court. The official nomination has gone to federal judge <a href="https://brazilian.report/newsletters/brazil-daily/2020/10/01/brazil-jair-bolsonaro-zeroes-supreme-court-pick/">Kássio Nunes,</a> who will undergo a Senate confirmation hearing on October 21 — early reports suggest a majority of senators will endorse his appointment.</p>
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<h2>Presumption of innocence above all else</h2>
<p>A former prosecutor himself, Celso de Mello has proven himself to be an intransigent champion of individual freedoms, with little tolerance for prosecutors and judges who overstep the rules supposedly in the name of the “greater good.” Such creative interpretations of the law have been leveled at <a href="https://brazilian.report/power/2020/10/09/the-fall-from-grace-of-once-anti-corruption-hero-sergio-moro/">several anti-corruption investigations</a> in Brazil, particularly the now-moribund Operation Car Wash. </p>
<p>In a court in which justices feel comfortable changing their interpretation of the law depending on the political climate, Justice Mello has been a rare source of stability. Like his decisions or not, they have been coherent with the values he preaches.</p>
<p>And in a country where <a href="https://brazilian.report/opinion/2017/12/07/brazilian-odd-liberalism/">liberalism is a dog whistle for conservatives who champion austerity</a>, Justice Mello proved to be “liberal” in all meanings of the word. In 2011, he voted in favor of same-sex marriage, claiming that Brazil’s secular state does not permit religious morals to limit people’s freedoms. Just last year, he also voted to equate homophobia to the crime of racism — stating that “it is indispensable that the state protect vulnerable populations.”</p>
<p>It is reported that, during his 1997-1999 stint as chief justice (in Brazil, that position is rotative, and members of the court alternate themselves in <a href="https://brazilian.report/newsletters/brazil-weekly/2020/09/08/brazilian-supreme-court-new-chief-justice-luiz-fux/">two-year stints</a>), Justice Mello <a href="https://www.conjur.com.br/2009-ago-15/celso-mello-20-anos-supremo-tribunal-federal?pagina=2">refused to meet with the Chinese prime minister</a>, “so as not to send a message that the Brazilian Justice system condones Beijing’s regime.”</p>
<h2>Champion of press freedoms in the Supreme Court</h2>
<p>As a harsh critic of the military dictatorship during the 1970s and 1980s, Justice Celso de Mello carried this staunch defense of the freedom of speech and assembly throughout his 31 years on the Supreme Court. During practically every example of censorship or restriction of free expression that reached the court, Celso de Mello made sure to speak out.</p>
<p>Among the most emblematic examples came in the trial of the Press Law issued during the dictatorship, which the court ruled as being incompatible with the <a href="https://brazilian.report/podcast/2018/10/05/podcast-brazilian-constitution/">1988 Constitution</a>. With Celso de Mello in tow, the Supreme Court underlined that the freedom of speech is one of the pillars of states that abide by the rule of law.</p>
<p>In the departing justice’s view, freedom of expression allows members of the press “the right to express criticism, even if it is unfavorable and in a forceful tone, against any person or authority.”</p>
<p>“The public interest, which legitimizes the right to criticize, supersedes any susceptibilities that may expose public figures, regardless of whether they enjoy any degree of authority,” he declared.</p>
<p>Crucially, he also stressed that these freedoms also extend to humor and satire. “Laughter and humor are expressions of encouragement to the conscious practice of citizenship and the free exercise of political participation, while they themselves constitute manifestations of artistic creation,” he said, when voting on the provisions of the Election Law that would prevent the broadcast of satirical programs involving candidates in the pre-election period.</p>
<h2>For he’s a jolly good fellow …</h2>
<p>During his final session in the court, all of Celso de Mello’s colleagues took time out to pay homage to the long-serving justice.</p>
<p>Justice Cármen Lúcia praised his “ethical and moral integrity” and made a point of stressing Justice Mello’s generosity in sharing knowledge. Alexandre de Moraes said the departing judge “left us lessons in how to fight corruption,” while Edson Fachin declared that Celso de Mello “may be succeeded, but will never be substituted.”
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