The ‘unconstitutional state of affairs’ of the legal lobby – 04/26/2023 – Conrado Hübner Mendes

The history of freedom reserves a worthy place for some lawyers and judges. And a particularly depressing place for others. There are not many professions with so many tools and channels of influence to address the abuse of power in a civil and institutional way, to respond to arbitration through the force of an argument of justice, not brute force.

Jurists who are part of the pantheon of the fight for freedom tend to walk on the margins of the culture of legal careers, generally well adapted to any political configuration that preserves their interests. The transition from dictatorships to democracies, for example, and the survival of dissidents have a chapter reserved for the “freedom fighters” of law.

This group includes figures such as Ernst Fraenkel, in Nazi Germany; Albie Sachs and Arthur Chaskalson in apartheid South Africa; Thurgood Marshall and Ruth Bader Ginsburg, in the struggle for civil rights in the United States; Jawaharlal Nehru, India; Luiz Gama, Barbosa Lima Sobrinho and José Carlos Dias, in Brazil. Not to mention female lawyers who have made achievements without the same male visibility.

Feeding the mythology of heroism is part of the profession’s rituals. But sometimes they let themselves be drunk in the ecstasy of self-image and screw up. They convert mythology into an insincere fetish, hide less than heroic interests and seek rather mundane rewards. In contemporary Brazil, this tradition is claimed by part of the law that defended clients against the many abuses of Operation Lava Jato.

This progressive advocacy for self-declaration was politically organized, divided the world of law between car-washers and anti-car washers, joined hands with none other than Augusto Aras and Gilmar Mendes, and structured a practice of lobbying in courts that was deeper than ever before. had seen. They sell access to judges, not legal intelligence.

Weeks ago, the PSOL, PC do B and Solidarity parties were convinced to file a bold constitutional action with the STF (ADPF 1051). The action requests the suspension of payment of all fines and the review of all leniency agreements signed between the Brazilian state and companies that committed illicit acts. Of everything.

Why? Because everything would have happened in “a situation of extreme political-legal-institutional abnormality, through a situation of coercion”. Coercion that not even the companies claim to have suffered. And, to add more drama, it calls for the declaration of an “unconstitutional state of affairs”. A wholesale request, without legal nuance, without political delicacy, without analytical distinction. Clueless.

To complete, he asked that the share not be distributed to a minister by lot, but straight to the table of Gilmar Mendes. Why? Because over there at that table there is obscure action on a similar topic. It would have “connection”, therefore. That part didn’t work out, Rosa Weber detected the trick, and André Mendonça received the report.

The concept of unconstitutional state of affairs (ECI) was created by the Colombian Constitutional Court to deal with cases with two characteristics: massive violation of the rights of vulnerable groups; failure of state authorities to protect these rights. Situations in which it is not enough to declare the unconstitutionality of a law, as they would require more complex judicial remedies. It applied itself, for example, to the defense of millions of people displaced from their territory by the guerrillas.

In Brazil, we borrowed the concept when professor and lawyer Daniel Sarmento, in 2015, representing PSOL, proposed action to recognize the ECI of Brazilian prisons (ADPF 347). Since then, the concept has spread to many topics (police operations in favelas, racism, homeless people, deforestation, indigenous health).

By smuggling the concept of suspending leniency agreements resulting from corporate corruption, the ADPF not only helps to trivialize, vulgarize and empty a claim category that has not yet gained traction in Brazilian constitutional decisions. The action makes things as stinky as the denounced “lawfare” (the use of the right against enemies) of Lava Jato.

It is curious that these political parties took up the cause of companies that could sue the Judiciary in their own name. Quite forced to assume coercion, wholesale, in general, to all agreements signed. It is very symptomatic that, given the alleged “degeneration”, they only ask for the suspension, not the annulment of the agreements. After all, let the sanction be interrupted, not the benefit of leniency.

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