“I do not judge the victim, but only the judges.” The tremendous phrase was uttered by someone who was neither a socialist nor a leftist. I speak of Father Laberthonière, who rejects the alleged sovereignty of the law and denounces the exceptional courts. Behind the law, said the priest, there are people who use it as an instrument of domination. In Luiz Inácio da Silva's appeal, discussed in Porto Alegre, judges displayed their power. Journalists and university students discussed the fact. Most of them were surprised by the thesis according to which the sentence would increase the politician's fascination with the poor and sectors of the middle class. “But what about the unanimity assumed by the judges?” The question has a reply: unanimity does not mean possession of the truth. Poor people know the contempt that many judges have for their causes and people. The legal elite imagines itself above the people, the State, the laws.
When the Constitution turned twenty years old, I was invited by Unafisco – National Association of Tax Auditors of the Federal Revenue, Ajufe – Association of Federal Judges of Brazil, Sinal – National Union of Central Bank Employees and ANPR – National Association of Public Prosecutors, to a seminar in Porto Alegre. Lava Jato did not exist, but its cries were already heard in actions vetoed by the STF.
I didn't bring good news to the togas and I wasn't celebrated by them. Those numbers had considerable reasons for irritation after my analysis. Ten years later, I summarize here what I told them face to face: their political interference harms society and the State. In São Paulo, shortly before, a certain judge spoke about three young people arrested for crimes they did not commit. When defending arbitrariness, he was applauded by the prosecutor: “every prisoner says he is tortured”. The boys left prison after abuse and two years in an overcrowded cell, suspected of rape and murder. They were released because the “Guarulhos maniac” confessed. The UN warns against the persistence in Brazil of “torture to obtain confessions, extrajudicial execution of suspects". Rare social lucidity appears in the Judiciary, such as that of judge Nivaldo Mulatinho Filho. He punished the executioners of a child from Recife, thrown into a vat of acid to the point that her skin, in the words of the police officers themselves, looked like “crumpled paper”. She stole guavas in the neighborhood of a workshop that painted cars. The watchman called the patrol. The attackers' defense claimed that the victim “had no credibility”. As if the destroyed body film wasn't believable enough, in the Brazilian robe few display the Recife judge's sense of justice. [1]
Deaf judges (good Father Laberthonière!) don't just exist in Brazil. Old Israel and ancient Greek life had partial magistrates. "There was a judge in a city who neither feared God nor respected man. There was also a widow in the same city who came to him, saying, 'Give me justice against my adversary.' answer her; but then he said to himself: 'Even though I do not fear God or respect men, yet since this widow bothers me, I will do justice to her, so that she will not come back and bother me too much.'" (Lucas, 18, 4- 8). In Brazil, most courts listen little and respond nothing. Breaking news: “Laurita Vaz, the first woman to preside over the STJ, denied – during the Judiciary recess – a request for a breastfeeding woman to respond to proceedings at home. The woman, whose youngest child is one month old, is a first-time defendant and was arrested for possessing 8,5 grams of marijuana. In the decision, Vaz said that the mother was unable to prove that she was essential for her… five children. The court decision caused outrage among defenders as Vaz granted house arrest to Roger Abdelmassih in July” (The state of Sao Paulo, 02/02/2018). Perhaps the magistrate needs to consult an ENT, since consciousness is dampened.
“If a judge decides something unfair and causes harm to the litigant, his penalty to the victim must be double the amount claimed. And anyone who wishes can go to the common courts against the magistrates because of unjust decisions.” (Plato, Laws, 846 b) And further: “No judge or ruler should be exempt from responsibility for what he does as a judge or ruler”. [2] The notion of checks and balances. The philosopher, says G. Morrow, wants to avoid practices like those of Star Chamber, used by sovereigns to rule against common judicial practices. [3]
Caution must be taken before the judge. It binds the law and citizens. M. Stolleis makes relevant considerations about magistrates. After Greece, instead of the sovereign people, the judge "judges in the name of another and greater power. (...) Since Bodin presented sovereignty as the power of its possessor to give orders to each individual and to everyone, By legislating, the modern state has become a state of legislation.
From the Levellers to the French Democrats we have the uniform Nation, not three social bodies like the nobility, the clergy and the third estate. Divine grace is removed by the sovereignty of the people, fundamental leges give way to the Constitution. The change required blood from those fleeing absolutist justice. [4] And the judge? It, says Stolleis, is linked to the law which “is no longer an order from an omnipotent sovereign, but a commitment between parliament and the government”. The jurors indicate that justice has been transferred from the monarch to the people.
The constitutional State uses the judge for domestication, a political tragedy. Globalization undermines weak states and, says Stolleis, a Chinese toy, imported and resold, can contain dangerous members. What is the situation, in legal terms, if the damage has not yet been detected? Or Danish butter subsidized by Belgium and brought to Algeria via Bavaria and Italy to be reimported into Europe as oil? This is fraud, but under what law? The judge must be both specialized and generalist, which brings uncertainty. [5] The togado that claims neutrality and proclaims never to "make value judgments" would only triumph in countries that deny publicity and accountability to the people. But in American courts, how many judges have rejected the Patriot Act? The lawsuits against Brazilian torturers show the weight of the issue. The Amnesty law gave safe conduct to those who clumsily used State force.
In bureaucratic judicial forms there is perpetuity of the position. Which does not mean holding the same position. “When guarantees are given to judges against arbitrary dismissals or removals, such measures seek to offer 'security' in the objective fulfillment, free from personal consideration, of the specific duty imposed by the corresponding position. (…) The administrative employee, in all cases, can be fired more easily than the 'independent' judge” (Max Weber).
Bureaucracy removes subjectivity, from the parties to the defense, from the prosecution and the judge. “The modern judge”, says Weber, no longer depends on a sovereign (king, pope, aristocracy or people), but his independence before people is paid for by insertion into the machine that controls him. Someone who must decide with reasoning is reduced to an "automaton of legal paragraphs" (Ein Paragraphen-Automat) whose functioning is calculable. [6] There is no judgment, only mechanization, a nightmare from the Greeks to romanticism. [7] In it, Joseph K. moves without knowing the reasons for the process. And not even the judge knows what leads him to condemn individuals. He is a prisoner of the machine. It is worth revisiting Jan kott's reflections in Shakespeare our contemporary, about the gears of power. [8]
Thinkers in the 17th century, when the reason of State was established, noted the advent of the mechanical trap that devours those who consider themselves superior to humans, from the king to the judges. This is the automatic company described in Port Royal Logic. The powerful seek to be obeyed as if people were tools, “entièrement privées de raison et de pensée”. At the same time he wishes to “manage men, not automatons because his pleasure consists in seeing the movements generated by fear, esteem, admiration that they generate in others”. The paradox is experienced in government, barracks and courts. It's a delusion and an impossible dream. But it defines modern power. [9]
I quote Eric Voegelin and the trial of Hans Hefelman. The defendant states that "the chief prosecutors and presidents of the Courts of Appeal had declared support for euthanasia. The accused of complicity in the deaths of 73 alleged mentally ill people said that the Secretary of State of the Ministry of Justice, Dr. Franz Schlegelberger ( ....) gave a lecture at the conference in which he declared that the 'T 4' action was legal. None of the one hundred old members, among whom was Chief Justice Erwin Bumke, objected." The "legal" basis was a secret decree from Hitler. Brazilians know what secret decree means. At the time, how many judges here stood up? Voegelin: "We have documents from the meeting. These lawyers, including the president of the Supreme Court, Bumke, knew that the campaign was planned, in fact, without legal basis, based on the secret decree of the Füher (...) Witnesses at the scene describe how the presidents of the Court of Appeal looked at Bumke – what will Bumke say? – and Bumke said nothing!” [10]. The machine for grinding consciences was in full operation, in the judiciary.
Special courts of justice, installed in Vichy, were present in Germany. Among them, the Volksgerichtshof (People's Court) made official in 1934 to prosecute “traitors”. In those courts, everything was quick and led to the humiliation of the accused, shown in handcuffs. The defense was symbolic, the judge and the prosecutor joined in the invectives against the prisoner. Prohibited appeals, the defendant eliminated in a few hours. [11]
Notes
[1] R. Romano, “Como crumpled paper” in Lima JCF, Neves LMW, (org): Ed. Fiocruz; 2006: Fundamentals of School Education in Contemporary Brazil, www.epsjv.fiocruz.br/upload/d/CAPITULO_4.pdf
[2] Plato. Comments by GR Morrow, which I quote without notable modifications.
[3] GR Morrow “Plato and the Rule of Law” in G. Vlastos (ed.) : Plato, a collection of critical essays, ethics, politics, and philosophy of art and religion, T. II (University of Notre Dame Press, 1978), pp. 144 and ss. Morrow's essay is from 1946. “I confess to a secret fondness for Plato's proposal, because it strikes at a defect in the administration of justice to which our Anglo-Saxon lawyers seem to be congenitally blind, viz. the abuse of judicial power. For the rule of law, as it worked out in our legal institutions, means the rule of judges, and this kind of rule, like any other, can become tyranny unless properly safeguarded.” Op. cit. P. 157.
[4] J. Campbell: Atrocious Judges: Lives of Infamous Judges as Tools of Tyrants and Instruments of Oppression (London, John Murray, 1849). It is urgent to consult the classics of resistance, such as The Law of Magistrates and Vindiciae against Tyrannos. The latter was translated into our language by FV Carvalho (Ed. Discurso).
[5] See Stolleis, M/: A History of Public Law in Germany, 1914-1945 (Oxford, University Press, 2004).
[6] M. Weber, “Parlament und Regierung im neugeordneten Deutschland”. Gesammelte Politische Schriften, JC Mohr, 1971, p. 523.
[7] A., Droz: Les automates, figures artificielles d'hommes et d'animaux, Histoire et Technique, Ed. Du Griffon, 1949.
[8] Logique de Port-Royal, introduction and notes by Ch. Jourdan, Hachette, 1854, p. 65
[9] J. kott, Shakespeare our contemporary, SP, Cosac Naif for the Brazilian edition.
[10] E. Voegelin, Hitler and the Germans (São Paulo, É Realizações, 2008), pp. 92-93, Around a thousand German jurists collaborated with Nazism. Cf. H. Camarade: “Le passé national-socialiste dans la société ouest-allemande entre 1958 et 1968. Modalités d'un changement de paradigme mémoriel” in Vingtième Siecle. Revue d'histoire, 2011/2 (n° 110), pp. 83-95.
[11] J. Snowden, “The Nazi Judiciary” in http://www.spiegel.de/international/germany/from-dictatorship-to-democracy-the-role-ex-nazis-played-in-early-west-germany-a-810207-4.html
