Fear and careerism explain the OAB’s subservience to the STF, say jurists

When the trials of the defendants on January 8 began, after the controversial clashes between defense lawyers and the ministers of the Federal Supreme Court (STF), the Brazilian Bar Association (OAB) sent a letter to the STF expressing its solidarity with the magistrates for the “incomprehension” that has led them to suffer “attacks”.

“Hate speech is not consistent with the necessary balance that must guide the actions of the Powers and everyone in society. Respect for institutions is crucial, especially in times of crisis”, said the Order.

The same OAB has been criticized for not properly defending the defense prerogatives of those arrested on January 8th. Lawyers complain about several violations of due legal process, such as the lack of access to case files, the impossibility of speaking privately with their clients and the lack of individualization of conduct.

In the opinion of jurists consulted by People’s Gazettethis difference in the treatment given by the OAB to the lawyers of the 8/1 prisoners and the ministers of the STF has two main reasons: the fear of retaliation from the Judiciary and the professional and power interests that drive part of the entity’s leadership.

“It is interesting that at no point was there a redress, or a letter, or a public statement [do Conselho Federal] of the Brazilian Bar Association speaking about the abuse of lawyers’ prerogatives throughout this period. And, the moment a lawyer makes a speech – a speech! – a little tougher and absolutely deserved, the OAB manifests itself”, criticizes Rodrigo Marinho, master in Constitutional Law from the University of Fortaleza (Unifor).

For him, much more serious than certain speeches made by lawyers during the trial taking place at the STF were the violations of legal prerogatives by the court.

“The lawyers did not have access to the case files. This is a crime under the Abuse of Authority Law. The lawyers did not have the opportunity to speak privately with their client. This is also a crime under the Abuse of Authority Law. And here I am just describing facts”, he says. “The OAB is a class entity. It represents lawyers. So, in theory, it should always be in defense of lawyers and never of judges. It is not up to the OAB to make redress or write a letter defending the judge. It is not its role. Eventually what she could do is punish the lawyer, but never defend the judge”, he adds.

Lawyer and legal consultant Katia Magalhães recalls that “there is a principle enshrined in the OAB statute itself that there is no hierarchy between lawyers, judges and prosecutors”. For her, the OAB president’s statement sounds “extremely servile”.

“This is a president who fails in his institutional duty, who is not protecting the people who pay a lot to support the corporation he represents. He is not sponsoring the interests of these people, but, on the contrary, he is sponsoring the interests of certain judges who are curtailing the lawyer’s freedom of expression, including in the courtroom”, he observes.

Katia emphasizes that lawyer Sebastião Coelho’s statement about STF ministers being “the most hated people in the country” does not represent any offense to the judges, although, in the opinion of some, the statement may be seen as exaggerated.

“What does the CPC [Código de Processo Civil] prohibits the use of offensive expressions. If these offenses are uttered verbally in the courtroom, in an oral argument, the judge has the duty to warn the lawyer and say: ‘Mr. lawyer, please refrain from using this type of expression. Otherwise, I’ll have to revoke your word’. None of this was done. And, there may be controversy about it, but I don’t see any offense in the words of lawyer Sebastião Coelho, a retired judge, “he says.

After the controversies with lawyers, minister Alexandre de Moraes, rapporteur of the January 8 trials, defined that the next sessions will be held in a virtual plenary session. For Marinho, everything suggests that the minister intends to avoid the embarrassment of the last in-person sessions. “This clearly violates the broad defense of the contradictory. What was already assumed would be voted on will now be voted on without reaction, with no one to criticize,” he says.

In this particular case, the OAB spoke out, on September 18, against the minister’s decision. “Given the relevance and exceptionality of the criminal actions now being analyzed by this Court, the in-person trial has an inestimable value in terms of prestige in guaranteeing full defense”, stated the entity. Moraes did not change his mind after the demonstration.

Rule facilitates promiscuity between law and judiciary

The president of the STF, Rosa Weber, before retiring from the court, was honored twice by the Federal Council of the OAB in the last three months. In July, she received a plaque in honor of her work “in defense of democracy”, according to the OAB.

On September 18, Rosa received the Order’s highest honor, the Raymundo Faoro Medal. One of the reasons for the award, according to Beto Simonetti, president of the OAB, was precisely the way the minister conducted the court after January 8th. “This defense of the fundamental values ​​of democracy is an inspiring testimony of her action on issues central to justice in such challenging times,” said Simonetti during the tribute.

For the jurists consulted by the report, this constant adulation of the OAB towards higher courts can be explained by factors such as careerism and ambition for power. In this sense, a rule provided for in the Constitution ends up favoring promiscuity between law and the judiciary: the fifth constitutional.

According to this rule, one fifth of the vacancies in the Federal Regional Courts (TRFs), the Courts of Justice (TJs), the Superior Labor Court (TST) and the Regional Labor Courts (TRTs) must be occupied by graduates from the law or Public ministry.

For Katia Magalhães, the desire for power is encouraged by the fifth constitutional law, which ends up favoring an attitude of subservience by the OAB in relation to judges.

“I think there is a desire to please power. And, in the system in which we live, there is a desire to become part of power itself. The majority of our higher courts are made up of people who are not career magistrates and who they ascend to these courts either via the constitutional fifth, or via a mere presidential choice. These people embark on a careerism”, he explains.

For her, the circumstances facilitate a “mix of servility, co-optation and the desire to, one day, call the shots or have access to people who call the shots.” “As we move up in the hierarchy, the number of magistrates who are not career judges, who are not graduates of public examinations, increases. Lawyers who enter the constitutional fifth have to go through the scrutiny of the OAB. This is already observed a promiscuity between the OAB and the Judiciary.”

The number of people outside the judiciary is even greater in higher courts, such as the STJ or the STF itself, where the names of judges are nominated by the President of the Republic. As a result, the web of relationships between law and the judiciary becomes even more intricate.

“Recently, we had a lawyer for Lula, Zanin, who was appointed. Barroso was a lawyer his whole life. Fachin was a lawyer. These are figures who traditionally came from the legal profession, and not from the judiciary, as, in my opinion, it should be”, he says .

For Katia, it is necessary to “urgently review the issue of the constitutional fifth”. “I have a slightly radical stance: I think that all magistrates in the country, from those at the bottom, of the first instance, to those at the STF, should be career judges, and there should be a progression based on seniority, agility, speed in decisions, that is, using the most objective criteria possible”, he says.