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When the Judiciary takes on a political role

Ricardo Sennes

The political crisis in Brazil is bringing afloat the discussion about the political role played by the Judiciary, by the Public Prosecutor’s Office and Federal Police. Society watches with wonder how these institutions take over the duties of the Executive and Legislative powers.

According to the classic definition, the Judiciary is an idle power, acting only in response to another power or a capable social agent, providing a neutral and unbiased mediation. In order to assure its independence in most countries, the members of the Judiciary are chosen by their merits. Usually, the only exceptions to that rule are the members of the Supreme Courts, appointed by the President and validated by the Senate as it happens both in Brazil and in the United States.

In the sense that Judiciary members are not elected, it is not a democratic power, so it is isolated from political activity. They do not represent any ideology or group of interest and, in turn, cannot be under pressure. It is this character that grants the Judiciary its freedom to judge based solely on the laws that rule the country.

There are many reasons – it is worth checking specialists’ research on this matter, like the ones by Rogerio Arantes and Maria Tereza Sadek – why the Brazilian Judiciary power, Public Prosecutor’s Office and Federal Police have diverted from this track. Recent events seem to indicate they have assumed political roles.

Supreme Court Minister Ricardo Lewandowski, for example, has advocated recently that the Judiciary should take on a moderator position (though he did not say it verbally). He is convinced that the other two powers need to be safeguarded by the Supreme Court, of which, by chance, he is part of.

What could have been only a matter of opinion, it is becoming actual practices.  Ministers now give interviews on their thoughts on politics, foresee votes and oppose or offend their colleagues in mass media. In the name of “morality”, recently some of them started to take monocratic decisions that involved the other powers.

In another example, Supreme Court Minister Marco Aurelio tried to disguise his intentions in saying that his decision was based on the “people’s voice”. What people think or ask should be irrelevant.  A judge does not answer to or represent the people. A judge should be focusing on the laws and the Constitution – and that is it.

It is unfortunate that the Public Prosecutor’s Office be used to advocate ideas, or have its infrastructure used to support causes like the “Ten measures against corruption” (translator’s note: a movement initiated by Brazilian Public Prosecutor’s Office aimed to support measures created to boost the efficiency of the State to fight corruption and impunity, that gathered more than 2 million signatures ). A series of distortions and abuse occurred: a banner was attached to the prosecutor’s headquarters in Brasilia; public funding was used to collect signatures and, last but not least, a member of the Office decided to negotiate law proposals with members of the parliament.

Ricardo Sennes is a managing partner at Prospectiva and a specialist in political and economic scenarios, the formulation and implementation of public policies, and the evaluation of their impacts on companies. He has experience in industrial policy, industrial promotion, and international integration. Sennes possesses a doctoral degree and a master’s degree in political science from the University of São Paulo (USP) and serves as the general coordinator of the university’s leading international affairs think tank (Gacint). He is currently a non-resident partner of the Atlantic Council’s Latin America program, a member of FIESP’s Council of Strategic Affairs, and a member of the council overseeing of the journal Foreign Affairs (Mexico and the United States).