O lawfare in the Lula government



The catastrophic effects of “lawfare” are widely known, especially among the Brazilian left.

Anyone minimally informed knows that, since 2014, Brazilian politics has been predated by a phenomenon called lawfare, which translates into the “strategic use of law for the purpose of delegitimizing, harming or annihilating an enemy”. In other words, the manipulation of legal instruments such as impeachment and criminal proceedings resulted in serious attacks on popular sovereignty that led to the rise of the extreme right to power.

It is true that the left was the main victim of the lawfare in the last years. However, we cannot forget that a good part of the conditions that gave rise to the legal war in Brazil were provided by the left itself, of which an eloquent example is the unusual idea of ​​appointing the Attorney General of the Republic from a list created by the very left. career.

After the frenzy of the electoral victory, a legion of car wash law professionals, deliverymen, coup plotters, all of them now suddenly converted to the cult of the Constitution and the Rule of Law and willing to “kill in the chest” any intemperance against the new government. Faced with this situation, the question assails us: shall we bury or resurrect the lawfare?

Don't face the lawfare with the mere configuration of a “crime of lawfare“, as some naively assume, neither is there a ready-made formula to curb it. The theory about the phenomenon, however, offers us valuable indications of what must be done to avoid it.


The theory of lawfare

O lawfare develops in three strategic dimensions: geography, armament and externalities.

Geography is represented by the public bodies in charge of applying the law – be they judges or administrative authorities –, depending on whose interpretative inclinations the legal weapons will have more or less force. In this dimension, in addition to a necessary reinvention of public tenders for entry into legal careers, an intransigent selection criterion for judges of the Superior Courts is imposed, which means seriously investigating the trajectory of legal professionals and their effective commitment with constitutional democracy, with no room for last-minute “redeemers”. Inserting such nominations into the party game or submitting to “campaigns” in favor of certain candidates is a sure way and without return to the lawfare.

Armament, on the other hand, relates to the legal norm used to attack the enemy. Anti-corruption, anti-terrorism and national security laws stand out among practitioners of lawfare, to the extent that they convey vague concepts – easily manipulated –, they display violent precautionary and investigative measures and seriously affect the image of the enemy.

This dimension is usually created in technical-looking government commissions, made up of moralistic professionals who love foreign words, which, consciously or unconsciously, introduce into Brazilian law rules celebrated at international conventions, but terrible for democracy and national sovereignty. Similar to the dimension of geography, it is necessary to review the current legislation and edit new laws that promote a structural confrontation with corruption and that, at the same time, guarantee the fundamental rights of the accused.

Finally, under the externalities dimension, information manipulation techniques are examined to generate a favorable or acceptable environment for the use of legal weapons against the enemy. Therefore, they concern the strategies external to the legal battles that help in the victory against the enemy. In Brazil, under the pretext of preserving full freedom of the press, the conflicting relationship between the justice system and the media is not regulated, giving rise to all sorts of abuses.

In England, for example, there is the so-called contempt of court, through which the communication vehicle that generates substantial risk to legal proceedings is held accountable. It is not prohibited, but restrictions are prescribed to journalistic coverage of cases in progress or pending trial, in order to protect Justice, which must always ensure a fair, independent and impartial trial. If we want to move forward in the fight against lawfare and improve our democracy, that is the direction we must go.

The catastrophic effects of the lawfare. There is still time to decide whether to bury him or raise him up.

* Rafael Valim, lawyer, holds a PhD in administrative law from PUC-SP, where he taught from 2015 to 2018. Author, among other books, of Lawfare: an introduction (with Cristiano Zanin and Valeska Zanin Martins) (Countercurrent).

Originally published on the portal UOL.

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