Public servants enjoy qualified honor in the exercise of their function. This was decided, on the eve of Carnival, in an action for crimes against the honor of public servants (article 141 of the Penal Code). Initiated in 2015, the action had an unfortunate outcome for freedom, but not surprising for the authoritarian legal tradition.
dates back to 1940. The ideological root of the reinforced protection of the honor of public authorities goes back, however, to the idea of ”lese majeste”. Provided for in the Philippine Ordinances, it gained another veneer in the penal codes of 1830, 1890 and 1932.
The STF’s decision did not create anything legally new, it merely recognized the device’s compatibility with the 1988 Constitution. And it is in line with another STF decision that reiterated, in 2020, the constitutionality of the crime of contempt, which has long served as a license for police abuse.
he justified it as follows: “The public agent, due to his rigorous duties, is subject to a very serious regime of responsibility, superior to that of the private individual. The placement of the public agent under special legal protection is not a privilege. The repression of attacks on civil service is within the scope of authoritas within the democratic spectrum.” had more power to summarize: “I don’t accept people calling me a thief. For me it’s a serious offense.” And it “demoralizes the State”.
The trial was frightening not only because of the sound of “authorities from the democratic spectrum” in Gilmar’s booming voice. The intimidating and censorious message between the lines echoes at a time when the STF is facing its greatest torrent of legitimate criticism from friends of the court.
Another chance to constitutionally clarify the relationship between authority and freedom in the Brazilian State was lost. We remain far from a conception of public authority in which the status of authority is not a reason to expand limits on freedom of expression, but precisely the opposite: as an authority, the public servant should be subject to critical excesses that a common citizen would not need to endure.
The liberal equation is therefore the opposite. This is what the US Supreme Court decided in 1964 in the case of New York Times v. Sullivan. He understood that authority needs to cultivate a thicker skin, not a more delicate one.
The decision also makes us understand other things better. The philosophy of authority adopted by the STF has an illiberal and antidemocratic color. It helps to explain why ministers refuse a code of conduct, why they ignore rituals of impartiality, why they induce confusion about the concepts of suspicion and conflict of interest or why they are offended by requests for agenda transparency and extra income.
If they were concerned about institutional honor and the respectability of their role, they would be thinking about self-improvement, not about increasing their sentences.
They prefer to sing: “If you call me a thief, I’m one of those ministers who gets offended by a random thing, a night out in Lisbon.” And they continue in the lyrics: “And I will indulge you, I will tell half truths, always in half light; and I will make you, vain, assume that you are the greatest and that you possess me”.
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