Institutionalized patrimonialism
Difficult cases are those in which the rule to be applied is not clear and there are no precedents that can help judges find the best legal solution to a concrete problem. In a stronger sense, however, really difficult cases are those that demand from the interpreter a non-dogmatic effort to resolve a clash of foundational principles of the constitutional order, which conflict with one another in a concrete case.
It would not be an exaggeration to say that the Federal Supreme Court faced one of its most difficult cases in recent decades when deciding on the application of a tax called “Social Contribution on Net Profits” (“Contribuição Social sobre Lucro Líquido” or CSLL). The case did not involve judging whether or not this tax is constitutional. The court had already done this more than a decade before. The difficult issue was deciding whether taxpayers who had obtained final, unappealable court decisions, releasing them from paying the aforementioned tax, could be obliged to pay it as a result of a subsequent decision by the Federal Supreme Court that declared the tax constitutional. In other words, could the Federal Supreme Court “relativize” or “break” res judicata?
The simple answer is no! Res judicata, alongside “acquired rights” and “perfect legal acts,” are principles guaranteed by the constitution itself, with the aim of consolidating past legal decisions.
However, the matter becomes complicated when we ask ourselves whether the constitutional principle of “acquired rights” protects an “acquired privilege,” as if it were an “authentic right.” Likewise, does a judicial sentence, even if unconstitutional, deserve to receive the guarantee of “final and unappealable decision”? How should we deal with a final court decision that created a private legal regime that benefits only one taxpayer, unlike a decision established by general law, which applies to all other taxpayers?
This issue is difficult, as it confronts two fundamental values of the democratic rule of law: on the one hand, the requirement that everyone be treated equally before the law; and on the other hand, legal certainty, which protects legitimately acquired rights, by legal determination, judicial sentence or contract, without which it makes no sense to act in accordance with the law in the present, since in the future this conduct may be considered illegal.
We must recognize that the idea of general law, which applies to everyone, was never fully incorporated into Brazilian political culture. The ability of powerful sectors of the economy or the public sector to carve out privileges, in collusion with legislators or the judiciary, cannot be downplayed. Our structural inequality is not an accident, but the result of an incremental process of institutional consolidation of privileges for some sectors, to the detriment of the rest of society.
If the Federal Supreme Court’s controversial decision to relativize res judicata confronts the perverse logic of Brazilian institutional patrimonialism, it does so at the expense of legal certainty, which is very scarce in Brazil. It is important to note that the Supreme Court only faced this dilemma because it took more than two decades to correct a lower court’s decision.
Correcting past injustices may possibly threaten the future. The fact, however, is that failing to correct these injustices may also conspire against the future. I believe that the mitigation of the consequences of this decision, which will radiate throughout the legal system, should be handled through the careful use of the Supreme Court’s prerogative to modulate its decisions. In this case, that means determining a reasonable period within which everyone, without exception, will be obliged to pay this tax.
