The dark secrets of our rulers

Image: Elyeser Szturm

By Marco Aurélio de Carvalho*

The private chats about the backstage of the Lava Jato operation, conducted by former judge Sergio Moro, cracked the reputation of public agents that a large part of Brazil learned to admire. In the tangle of conversations there are deliberations that shock and cause astonishment.

The stories are being produced from a voluminous and unprecedented archive that includes private messages, audio recordings, videos, photos and even official documents. were sent to the The Intercept Brazil by an anonymous source. In the already published content, plots and articulations reveal a highly politicized approach and stumbling blocks in legality, “unethical behavior and transgressions that Brazil and the world have the right to know about”, as the website explains.

What is interesting to quickly analyze, from a legal point of view, are the foundations for the ongoing controversy. Should the disclosure of conversations, even obtained by illegal means, entail penalties for those who disclosed? Do the confidences have legal validity?

The journalistic action of the The Intercept Brazil brought to the current scenario the wiretapping that captured dialogues between then-president Dilma Rousseff and ex-president Lula. In that context, Judge Sérgio Moro justified himself on the grounds that not even the Presidency of the Republic “has absolute privilege” to protect his conversations.

Another episode from the past, mentioned by Judge Moro himself, was the case Watergate (1969-1974), when Richard Nixon, president of the United States, could not prevent conversations between him, his advisors and ministers, recorded and kept in the White House, from being released. In one of them, Nixon acts to prevent the FBI (US federal police) from proceeding with the case, which meant obstruction of the work of Justice and was a decisive step towards his resignation.

In the case of Lula and Dilma, an episode clearly different from the scandal Watergate, Moro stated that “it is not up to the Judiciary to be the guardian of the dark secrets of our rulers”. The then judge added, in the justification, that the governed must know what the rulers do, “even when they seek to act protected by the shadows”. Moro’s central idea is irreproachable: to cultivate, incessantly, “healthy public scrutiny of the performance of the Public Administration and of criminal justice itself”.

The example of the leaked audios of Dilma and Lula requires additional information. When analyzing the case, Minister Teori Zavascki determined the “nullity of the content of the collected conversations” and expressed a position frontally contrary to the media action and the “spectacularization” by the so-called “republic of Curitiba”. The Constitution, Zavascki pointed out, was violated because it allows the interception of personal communications only in case of obtaining evidence for investigation or criminal prosecution. As rapporteur, the Minister of the STF wrote: “the decision to disclose the President's conversations – even if found fortuitously in the interception – could not have been handed down in the first degree of jurisdiction, due to absolute incompetence; communication involving the President of the Republic is a matter of national security (Law n. 7.170 / 83), and her office prerogatives are protected by the Constitution”.

The point of convergence in these events with high-octane fuels on the public atmosphere turns out to be the press. Messengers of bad news bother more than the news itself and those affected seek to take action against journalists or press organizations. A useless task, since there is no basis for attributing crime in the act of disclosure. The Constitution guarantees full freedom of the press and the secrecy of source preservation. In addition, in exercising their profession, journalists are guided by the State's duty to be accountable and by the social right to information.

Freedom of the press suffers attacks, above all, in situations in which journalism uses confidential content – ​​usually delivered by someone who participates, breaks the secrecy and leaks information – to inform the public of the existence of acts that society disapproves of.

Interestingly, leaks about the accused, still under investigation or in legal proceedings, come from State agents. However, there is a notable difference. When the authorities do not observe the constitutional limits – in disclosing, in obtaining evidence – there is blatant illegality. In turn, when disclosing recordings, documents or conversations by authorities to society, the journalist is simply exercising his craft. The illegality of anyone, even those who act representing the Public Power, does not contaminate the exercise of the profession by the journalist.

In the coming weeks, we will experience crucial decisions for our democracy. The legal issues here are complex and despite more controversies and incidents on the matter, the fundamental rights of citizens and journalists to freely exercise their profession need to be strengthened. To silence the press is to muzzle democracy.

By explaining the editorial line adopted to examine the vast material, removing inappropriate content and conversations that could infringe the right to privacy, The Intercept Brazil admirably sums up the work: “we employ the standard used by journalists in democracies around the world: information that reveals transgressions or deceptions by the powerful must be reported”.

Nothing to add!

*Marco Aurélio de Carvalho, a lawyer specializing in Public Law, is a founding member of the Brazilian Association of Jurists for Democracy (ABJD)

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