Given the proximity of the judgment of attempted violent abolition of the Democratic Rule of Law, the appeal of “self -restarting” of the ministers of the Supreme Court has been more frequent.
They are critics who ask for moderation, in the name of strengthening the rule of law in the country, to delegitimize eventual conviction of the former president. This argument, however, is unfair. Self -restart is an ideal for cases of separation between powers. To displace this debate to the criminal scope is to ask the legality to be ignored, to favor a powerful political agent. Nothing further from the values of the rule of law.
More recently, this type of argument was exposed by Professor Marcus André Melo in this Sheetwhen complaining about . According to him, “there is a cry for the self -restarting” of the ministers of the Supreme, without any explanation of exactly who is crying and why.
In the text, it is suggested that the existence of a privileged forum in the Supreme Court is one of the factors to have a “hypertrophied court and judges.” Between the lines, there is an accusation of excess in the use of criminal attributions by the Supreme Ministers in the current context.
This same type of public event by the minister. In his speech, he emphasized that “the rule of law imposes self -restart” and that “the good judge has to be recognized for respect, not fear.” In the end, he indicated that this good judge must produce decisions that “generate social peace and non -chaos, uncertainty and insecurity.”
At first, such places seem common and even trivial. A good part of the legal community advocates the promotion of self -restarting in the Supreme Court. This is an important value, among many others, in the conflict between executive, legislative and judiciary, to avoid improper interference in public policies and legislative activity.
It is a value for avoiding the creation of heterodox judicial solutions frequently. Those who ask for self -restart asks magistrates to reflect – politically and consequences – how, when and what intensity it should exercise.
However, asking for judicial self -restart within criminal proceedings is harmful. Do we really want magistrates to condemn or acquit to depending on their assumption about what will bring peace or social chaos? In criminal proceedings there must be conviction if there is legal basis for this (evidence of authorship and criminal acts).
To cry out for self -restart in the criminal scope is to ask the law not to apply; This is an affront to the democratic rule of law. In the criminal scope, legality is one of the main values, among others, that must guide the lawsuit.
Ironically, who states this is precisely the author mobilized by Professor Marcus Melo, in the same text cited in his column. In “The Politics of the Rule of Law”, Joseph Raz argues that the observance of the rule of law depends crucially “on the existence of a strong and independent judiciary.”
For this, “a culture of legality, respect for the law, and a willingness to act according to the law even when you have damage under it.” Self -restarting in the criminal field is precisely the excessive ambition that Marcus Melo is so critical.
This is a position perfectly aligned with the replica that the minister offered to Minister Mendonça. “Respect [ao Judiciário] It occurs by independence. A vassal, cowardly judiciary who wants to make agreements so that the country momentarily ceases to be troubled, is not a judiciary and independent. “
This independence is crucial in the exercise of the function for the investigation and eventual condemnation of powerful agents. After all, sometimes, applying the law does not bring social peace, but the revolt of the co -religionists. This is a challenge for the rule of law and liberal, especially when political agents use their powers to corrode the institutions to nullify the Democratic Rule of Law precisely; A challenge that is not resolved with self -restarting.
