Republic and Rights
Article on the Republic and rights in light of the spurious practices revealed by Operation Lava Jato, Correio Braziliense, 2018.
Translated from the original.
There is in Brazil a kind of collective catharsis and an intense debate about the innards of the Republic. Since Operation “Car Wash,” spurious and patrimonialist practices have come to light in the way laws, provisional measures or agreements are conceived, aimed at satisfying unlawful political interests.
The “Car Wash (Lava Jato)” operation is the largest investigation of corruption and money laundering in the history of this country and one of the largest in the world, involving politicians, businesspeople and public officials. Justice Celso de Mello, in upholding the detention of a legislator, once pointed out that the law applies to everyone, “regardless of their estate position, whether patricians or plebeians, rulers or ruled,” which means that decisions are not made on a casuistic basis, nor to the detriment of the Republic.
Brazil would be on its way to ceasing to be the paradise of impunity for “white-collar” criminals. There have been countless attempts to smother this operation, not least because the reaction of the powerful was to be expected.
Multiple institutions are responsible for the implementation of “Car Wash” and need to be strengthened and respected. These are republican institutions, whose permanent and stable functioning ensures the continuity of public policies. I refer to the Judiciary, the Public Prosecution Service, the Federal Police, the Federal Revenue Service, the Federal Public Legal Service, the Office of the Comptroller General (now the Ministry of Transparency – its technical staff), the Federal Court of Accounts, among others.
In particular, it is worth highlighting the recent debate on supposed privileges that have been pointed out with regard to Magistrates, members of the Public Prosecution Service and Federal Public Lawyers: the former regarding the housing allowance and the latter regarding the right to attorneys’ fees, which they gained by force of Law 13,327/16.
The attacks on these institutions are based on an attempt to weaken them. They confuse public opinion, because they induce the false idea that their members enjoy privileges when, in reality, they are merely in the legitimate exercise of rights granted to them by law. What is the interest in mixing solid, republican institutions into a debate being waged over odious privileges in Brazil?
It seems to me that the purpose is to put everyone on the same level, precisely at a moment when the entrails of the Republic are being exposed by these institutions. If everyone is, so to speak, “corrupt,” no one is corrupt. If everyone is “privileged,” no one is privileged. The bet is on chaos. But it is necessary to separate the wheat from the chaff. Oversight institutions, or their members, who exercise or enjoy rights provided for by law do not offend administrative morality, nor do they deserve public condemnation.
Great care is needed with the advance of demagogic discourse in Brazil. Under the pretext of pleasing the public opinion of the moment, rights cannot be suppressed, and here I speak in a more general way, transcending the subject related to the housing allowance or the right to fees for public lawyers. Demagogues usually take advantage of moments of instability to manipulate the masses, fostering irrational aspirations, and this has regrettably been happening in Brazil, in several fields. Generally, demagogues use simple words, not technique, seeking more to please listeners than to demonstrate the consistency of their thesis.
It will fall to the STF to arbitrate the discussion on what is or is not legally correct regarding the receipt of the housing allowance by members of the Federal Judiciary, at the meeting scheduled for 22 March of this year, and then, yes, the debate will be strictly legal. And we must always trust the final word of the STF. Of course the Federal Judiciary should not receive treatment dissociated from the national Judiciary, or even from the Brazilian Public Prosecution Service, given the historic principle of symmetry that has guided the careers in their essence.
It is regrettable that Judges and members of the Public Prosecution Service are going through an authentic media massacre, because of a right provided for by law, and that the witch hunt is now turning against members of institutions charged precisely with combating corruption in our country. The confusion between “right” and “privilege,” made in this scandal market, confused public opinion, causing damage to the image and honor of people who have worked for the development of a fairer country.
Fábio Medina Osório
Jurist, Former AGU Minister, Doctor of Administrative Law from the Complutense University of Madrid