The limits of judicial debate
Article in Zero Hora, on 03/04/2019, on the limits of judicial debate and the separation of Powers in the democratic regime.
Translated from the original.
Brazilian legislation, following international parameters, protects certain values fundamental to the democratic regime and assumes a commitment to the structuring principles of a republic founded on the separation of free and harmonious Powers, which adjust to one another through robust and independent institutions.
The operation of the system is geared to the protection of fundamental rights provided for in the Constitution or in national, international, statutory and sub-statutory instruments. In addition, the Brazilian model guarantees freedom of expression of thought and protects the honor of persons, whether individuals or legal entities, which is considered inherent to the very core of the republic.
For rights to be safeguarded, it is necessary to guarantee free and effective access to Justice, on the premise of the independence of legal practitioners, whose immunities are quite broad in the face of possible interference that may amount to limits on their functions.
It is in this context that debates develop on the limits of the speech of judges, members of the Public Prosecution Service and lawyers, whether in proceedings, in the media or on social media. It is important to point out, however, that there are ethical duties of courtesy and decorum that such professionals, of whatever rank, must observe, at the risk of damaging not only their own image but the honor of their institutions.
Separating what is harsh, even rough, criticism from what would be an offense to honor, whether personal or institutional, is a necessary task to refine the quality of democratic debate.
Case law is a good path to follow. Researching precedents and looking at practical examples serves as guidance for legal practitioners. But the first who must observe the Organic Law of the Judiciary are the Supreme Court justices, whose behavior should serve as a paradigm for all magistrates and members of the Public Prosecution Service of Brazil.
Fábio Medina Osório is a lawyer and former minister
of the Office of the Attorney General of the Union