Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy

Is it possible to strike justice? Limits and possibilities of strategic alliances for the democratic independence of the justice system - By Élida Lauris and Vinícius Alves

Is it possible to strike justice? Limits and possibilities of strategic alliances for the democratic independence of the justice system

Source: Emporium of Law

By Élida Lauris and Vinícius Alves - 20 / 02 / 2017

In Latin American countries, the role of the judiciary as a reform issue was mediated by the inanimate figure of the judge applying the letter of the law. Later, as early as the mid-20, the welfare state's defense reached the region's politics, focusing more on the growth of the executive and its bureaucracy and on turning the judiciary into a part of the apparatuses. State bureaucratic agencies, that is, more an organ for the political power to control, than to endow the Judiciary as an institution with capacities to demand human rights public policies and to curb the expansion / violence of the State and its disciplinary mechanisms (SUTIL , Jorge Correa (2000), “Judicial Reforms in Latin America: Good News for the Unprivileged” In O'Donnel Guillermo et. al (org.). Democracy, violence and injustice: the non-rule of law in Latin America. Sao Paulo: Peace and Earth: 243-249).

Still according to Sutil, in the 50 and 60 years, import substitution and development from the state did not include the judiciary in strategies to overcome underdevelopment. Indeed, for the elites, the possibility of judicial interference should be inhibited so as not to undermine the new modes of production organization. In this period, even the revolutionary left was not concerned with the judiciary as an important mechanism for the promotion of social justice. In the 70 and 80 years, authoritarian regimes also strategically dealt with the judicial institution, controlling it, since, with greater power, it could restrict its repressive practices.

Judicial independence is related to the institutional arrangements that can promote or protect it. The individual autonomy of judges cannot be artificially produced, but institutional arrangements aimed at judicial autonomy can be established by considering the forces and pressures acting on a particular political system.

An influence-free judiciary cannot be conceived. First, the law applied is not neutral. The Judge The judge, in turn, makes the right and sentence based on a pre-understanding based on pre-judicial experiences and affiliations. Then judges are state officials, their independence from the other branches is only partial. When thinking about the institutional promotion and defense of judicial independence, one must keep in mind that it is one of those principles (such as accountability and representative democracy) that cannot be fully fulfilled and are recognized by their negative margins. Although one cannot readily indicate all the characteristics that must be met to obtain an independent judiciary, interference that threatens judicial independence can easily be identified.

In 1996, Boaventura de Sousa Santos pointed to the dilemma of a judiciary protagonist of conflict resolution, the tension between the affirmation of corporate judicial independence and democratic judicial independence. At stake, in the first case, the defense of class interests and privileges combined with a politically reactive judicial performance legitimized by the idea of ​​neutrality in relation to political power, which has been configured, among other effects, to increase the criminalization of movements. in the resurgence of punitivism and overcarceration. In the second case, the critical position in relation to class privileges is located as a condition for the exercise of a proactive judicial performance in the sense of defending constitutional rights, guarantees and freedoms and, therefore, weakened and contradicted in the relationship. with the institutions (SANTOS, Boaventura de Sousa et. al. 1996. The courts in contemporary societies. Coimbra: Almedina).

There is no doubt that this dilemma voraciously absorbs judges and judges committed to guaranteeing the rights and critics of current criminal punitivism, which has recently been seen with the disciplinary punishment of São Paulo magistrate Kenarik Boujikian. An escalation of disciplinary corporatism that has been reproduced through the systematic opening of disciplinary proceedings and media trials against other magistrates who share a democratically independent professional performance - see the statement by Judge Luiz Carlos Valois in the case of the tragic rebellion of the Anísio Jobim Penitentiary Complex . Functional independence seems to be selectively respected in order to guarantee actions aimed at maintaining sectoral interests and class privileges. In this scenario, more conservative sectors of the judiciary still seem to gain an important external impetus with the appointment and eventual inauguration of Alexandre de Moraes for the vacant seat at the Supreme Court.

To what extent is it possible to count on a strategic alliance of justice system institutions to interfere in this framework? Notably, the institutional and professional representations of the legal careers responsible for judicial processes that result in overcarceration should not be nationally organized to respond to this conjuncture, standing side by side with civil society organizations, universities, academic centers and individual jurists against possession. of the new minister-nominee in the face of his punitive legal theses? To take as an example the case that has generated overexposure of justice institutions: should not bodies and entities representing professional justice, especially the prosecutor, publicly express concern about the implementation of a plan to stop the Lava-Jato from the appointment of high profile political actor aligned with government sectors investigated in the operation? It is curious to note in the public manifestations of the professional entities of some legal careers the support or approval of the appointment of Alexandre de Moraes, highlighting his technical and academic qualities and, therefore, politically “neutral”, in the sense of affirmation of a corporate independence as defined here. (See for example the public notes of the National Association of Prosecutors, National Association of Prosecutors and Association of Brazilian Magistrates).

The public positions of the legal representation class bodies, when more demanding regarding the appointment of Moraes, highlight a charge for the need for their performance in the Supreme Court to be “independent” and firm in the fight against corruption (see positions presidents of the Brazilian Bar Association and the Association of Federal Judges). Not surprisingly, the criticism of Alexandre de Moraes's appointment came from collegiate jurists and legal professionals whose mission is in line with the defense of human rights and democracy, such as the Association of Judges for Democracy and the collective. Transforms MP. It is imperative to ask: what is the sense of judicial independence that will be affirmed with the presence of Alexandre de Moraes in the Federal Supreme Court? It is worth noting that a sense of judicial independence is at stake, which will ultimately both uphold the political legitimacy of the judiciary in rhetorical neutrality and corroborate disciplinary punishments and media judgments that constrain the individual professional action of judges who have used it. the prerogative of judicial independence in favor of human rights.

The centrality of the judiciary as a decision-making body and the internal political dynamics of the institutions, in which they operate in isolation from each other, have traditionally generated a tendency to replicate the organizational and disciplinary ideologies and practices of the courts as praxis hegemonic role in legal careers. Thus, the pessimistic expectation is that disciplinary corporatism, conservatism in relation to the recognition of rights, and punitivism exert their strong attraction and progressively swallow the justice system, culminating in omission in the face of these episodes.

The obstacles to the critical positioning of professional entities representing legal careers are not limited to the possible ideological complicity and sharing of values. They are also practical. It is important to assess whether these associations or institutions enjoy political upholstery that gives rise to the risk of acquiring enmity within the Supreme Court, as they make use of it to resolve their interinstitutional conflicts, to define competencies and to secure achievements. financial order with corporate reflexes. The STF arbitrates interests of these segments, shielding itself from any more direct and forceful criticism.

It seems that there is no efficient institutional design to counterbalance the reigning figure of the Judiciary with its growing hegemony of undemocratic values, so that if it is established, as it has been established, by the relativization of human rights, by the affirmation of privileges, punitivism and selectivity, resistance will be marked as an individualized or external position in the system, ignored or deserving of punishment, even though ordering the entire justice system has a duty to care for opposing values.

Élida Lauris is the articulator of the Justice Forum, postdoctoral student at the Catholic University of Pelotas, with postdoctoral and doctorate in Postcolonialism and Global Citizenship at the University of Coimbra.

Vinícius Alves.
Vinícius Alves has a master's degree in Theory and Philosophy of Law from UERJ, coordinator of the Justice Forum and coordinator of the Justice System Observatory WG of the Institute for Research on Social Movements - IPDMS.