Under the heading “triumph of impunity“, the following article is authored by Rogério Medeiros Garcia de Lima, judge of the Minas Gerais Court of Justice
I was born in São João del-Rei-MG, in 1961. I am from the generation that experienced the decline of the regime established by the civic-military movement of 1964. Student of Law, I followed the “Diretas Já” campaign in 1984. I saw birth of the “New Republic” of Tancredo Neves, in 1985. I applauded President José Sarney’s Plano Cruzado, in 1986.
I was a prosecutor in Minas Gerais (1986-1989), and I have been a magistrate for almost thirty-two years in my home state.
Then came the direct election of President Fernando Collor, in 1989. He was impeached in 1992. I applauded once again President Itamar Franco’s Real Plan, in 1994. And then came the election of sociologist President Fernando Henrique Cardoso, in 1994.
Later, I witnessed the election of the worker-president Lula da Silva, in 2002; the Lava Jato operation, by federal judge Sergio Moro and prosecutors, in 2014; and the impeachment of President Dilma Rousseff, in 2016.
Finally, Brazil elected President Jair Bolsonaro, former army captain, in 2018.
Time has taught me that, in Brazil, nothing is so bad that it cannot get worse…
I pride myself on being a dedicated, impartial and independent judge. I respect and will always respect the Supreme Court, the highest Court in our country. Therefore, it is with great sadness that I see impunity triumphing in our country. As it always triumphed. And as always – unfortunately, I believe – he will triumph.
Very frustrated, I read the article by the brilliant journalist Carlos Alberto Sardenberg: “I borrow the very pertinent quote found by the lawyer, jurist and writer José Paulo Cavalcanti Filho: “The organ that most failed the Republic was not the Congress; it was the Supreme Court”. It is by João in “Rui, the statesman of the Republic”, from 1937.
“’I am afraid that, looking back, we will one day make a similar judgment of the Supreme of today. Before, for what you didn’t do. Today, for what he is doing’ — adds Cavalcanti Filho, in a text that can be found at www.jp.com.br.
“Because the professor of Constitutional Law Joaquim Falcão probably understands that today’s Supreme Court is even worse than the one mentioned by Mangabeira. After asking the basic questions about the latest decisions of the STF — after all, did Lula commit a crime or act within the legal precepts? —, Falcon concludes: ‘The Supreme does not answer. It just builds reflex responses. It doesn’t go into merit. It hides itself in procedural debates about internal competences. Postpone Brazil. Our economy. Investments. Our democracy. Political normalization’. (‘O Estado de S. Paulo’, 23/04/21).
“But, in addition to hiding in procedural frills (as we have already commented here), some justices of the STF, when they enter the content, present preposterous theses” (The fault is of the STF, O Globo, 04.24.2021).
At a time like this, we have to quote the great Argentine jurist Eugenio Raúl Zaffaroni:
“(The judiciary issue is) so political that, practically, the French Revolution was deployed against the arbitrary power of judges, more than against the monarchic power” (Judiciary Power: crisis, hits and misses, 1995, p. 79).
Saddened, I hear in my surroundings – and read on social networks – harsh criticism of the Brazilian Judiciary. Criticism deserved.
The arrogance of higher courts frightens me when they attack the conduct of first-degree judges. And I transcribe again Zaffaronni:
“In practice, the damage to internal independence is usually more serious than the violation to external independence itself. This is because the executive and the various political operators tend to have an interest in some conflicts, generally very individual and isolated (except for generalized cases of corruption, that is, extremely deteriorated models), but the collegiate bodies that exercise an internal dictatorship and who enjoy terrorizing their peers, abuse their power in everyday life. Through this vertical power, they satisfy their personal grudges, demand their frustrations from young people, reaffirm their faltering identity, develop their vocation for intrigues, unleash their egotism, etc., mortifying those who, by the simple fact of being judges of different competence, are considered their own ‘inferior’. In this way, an incredible network of pettiness and shameful pettiness is developed, in which civil servants and assistants without jurisdiction participate” (ob. cit., p. 88-89).
I’ve already dreamed of seeing a Justice similar to that of Great Britain implanted among us. Joaquim Nabuco – the great politician, diplomat and abolitionist of the 19th century – admired the British magistracy:
“Only in England, one might say, are there judges (…). There is only one country in the world where the judge is stronger than the powerful: that is England. The judge takes precedence over the royal family, the aristocracy, money, and, most of all, the press, opinion. . . . The Marquess of Salsbury and the Duke of Westminster are sure that before the judge they are equal to the lowliest of their household. This is the greatest impression of freedom left in England. The feeling of equality of rights, or of person, in the most extreme inequality of wealth and condition, is the basis of Anglo-Saxon dignity” (Minha Formação, Editora UnB, 1985, p. 85).
When I was younger, I rebelled and was willing to fight. Now, I lost hope for good. We have to invest in the new generations of Brazilians and Brazilians and in the new generations of magistrates and magistrates. Our sons, daughters, grandchildren and granddaughters. The current generation has failed. The Supreme Court has failed. We all fail a lot. The delay is huge!
Serve o alerta de Rudolf von Ihering:
“Any norm that becomes unjust in the eyes of the people, any institution that provokes their hatred, harms the sense of justice, and for that very reason undermines the energies of the nation. It represents a sin against the idea of law, whose consequences end up affecting the State itself. (…) Not even the most vigorous sense of justice resists for a long time a defective legal system: it ends up dulling, withering, degenerating” (A Luta pela Direito, Editora Rio, p. 94-95).
The author holds a PhD in Administrative Law from the Federal University of Minas Gerais and a university professor. The article was originally published in the newspaper Inconfidência, from Belo Horizonte)