If there is any consensus regarding the crisis, it concerns its scale —vast, oceanic— or its importance —colossal, disproportionate. But these consensuses tend to mix two analytically distinct dimensions. The first is the individual issue. This type of situation, although rare in constitutional courts, has international precedents. These are cases of judges involved in influence peddling schemes within the Judiciary — situations in which the judge acts himself or as an informal intermediary to influence decisions or administrative procedures. In these cases, the issue is essentially criminal and individual: it involves holding an agent responsible for having violated basic functional duties. In the Brazilian case, however, there is evidence of the involvement of two ministers — not just one. And, most importantly, the counterparty would not be a company or individual, but a criminal organization with mafia characteristics. All of this gives the episode an astonishing originality.
A second dimension concerns possible abuses of power by judges in processes defending democracy. This introduces into the debate the issue of so-called militant democracy, an expression used to describe democratic regimes that resort to exceptional instruments to protect themselves from authoritarian threats. From this perspective, criticism is directed less at personal probity and more at the institutional limits of the exercise of judicial power: the extent to which courts can employ extraordinary measures without straining fundamental principles such as due legal process and guarantees of impartiality.
These are distinct issues: one concerns the integrity of specific public agents; the other involves evaluating the institutional strategies adopted by courts in contexts of threat to the democratic order. These two dimensions — individual corruption and abuse of power — interact, producing a multiplier effect that enhances their impact: one of the ministers involved in our current crisis was a protagonist in the defense of democracy in a historic trial over a coup conspiracy, with wide international repercussions.
The fundamental problem lies in the possibility of abusive and illicit use the defense of democracy for shady private purposes; as an institutional shield that would legitimize procedural violations, breach or imposition of secrecy, among others. Even more serious is that this use potentially delegitimizes the very necessary defense of democracy within constitutional frameworks. The trade off that the court faced as a collegiate between seems to have been instrumentalized.
The Supreme Court is today. This is an unparalleled crisis when seen from a comparative and historical perspective. Constitutional courts often face political challenges or conflicts with other Powers, but there is no record of cases in which their legitimacy is simultaneously undermined by corruption scandals of the magnitude of what is currently observed in the country.
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