In the previous article we tried to identify, based on the debate that revolves around the topic of the enforcement of the decision immediately after a judgment by a panel of judges at the local courts (Court of Justice or Federal District Court), a new attempt to “relativize” res judicata. Unlike what happened about two decades ago concerning civil procedure, this “relativization” involves both the confrontation of the concept with other equally relevant values of the system – at the same level of the protection of individual freedom in order to identify whether and under what circumstances it would be possible to overcome it – as well as the literal nature of the constitutional text – and, in this way, to enforce criminal convictions that are still to be reviewed.
Overcoming the literalness of the normative texts, even if there is a lack of statistics to support the assertion, is not exactly – and this is not of today – an obstacle to the Brazilian doctrine and case law. To the most enthusiastic reader, I will take a step ahead and clarify that this is not – at least not necessarily – a criticism but a fact that could even be an expression of praise, insofar as the obsession with the literalness of the text – as History demonstrates – may effectively put itself at the service of authoritarian regimes. However, here is the first challenge: it seems to be a mistake to assume that overcoming the literalness of normative texts by the courts – specially by the constitutional court (the Brazilian Federal Supreme Court is one of them but not the only one) – would always be an improved technique dedicated to the postulates of democracy, and an instrument for the preservation of fundamental rights. Not to mention the deficit of popular representation from the jurisdictional bodies when confronted with the elected members of the parliament; it is a fact that disregarding the literalness may equally result in contempt of the fundamental right. As a matter of fact, the situation subject of these reflections can well illustrate this fact. Or is it possible to argue that the individual’s freedom is not a fundamental right?
This topic seems to be really important: to admit that the bodies of the judiciary, in particular the Brazilian Federal Supreme Court, have a transformative role of Law may often and invariably sound as a concrete contribution to democracy, but, instead, it might paradoxically be characterized as an authoritarian practice. In the specific case of the enforcement of the decision after it has become res judicata (always having in mind that this was, if not the best, the constituent’s definite option), it does not seem possible to establish a pure and simple equivalence between this situation, on one side, and other situations which, more than overcoming the literalness of the normative texts, evolved to fill in omissions and flaws of a system that, progressively, has been found to be outdated if compared to the social reality. In other words, it does not seem possible to merely place the enforcement of a decision before it has become res judicata on the same level as the protection of minorities, the repression of discriminatory practices and other judgments of the Brazilian Federal Supreme Court that could be truly qualified as a protection of the fundamental rights.
It will be said that, in the current Brazilian situation, judges – at least some of them – have a higher degree of popularity than most of the representatives elected by popular vote. It is no coincidence, therefore, that a former member of the Brazilian Federal Supreme Court – whose image was associated, among other things, with the fight against corruption – has until recently appeared in the electoral survey as a pre-candidate, with great potential to take over the presidency of the Republic. However, if this is symptomatic, it is not enough to justify that the Brazilian Federal Supreme Court may, for this reason, ignore the literalness of the constitutional text. It would not be enough in conceptual terms, and much less in the Brazilian context where the court is divided and marked by debates, which are often contaminated with political inspiration or with other hard-to-reach advantages.
Specifically about that, judging in accordance with the outcry of the streets is not only a clear mistake, but such an attitude runs the risk of being a contradictory or empty speech: if the “popular voice” had been heard, the subject of the extra bonus for housing expenses would hardly have been dealt with a singular judgment, which has been in force for years and certainly the issue would not have been removed of the docket for a mediation that tends to be harmless in view of the impossibility that is taken for granted concerning a transaction among the public agents involved, given the nature of the interests at stake. Therefore, although it is essential that the judiciary communicate adequately with the population in general, it might not be said that overcoming the literalness of the constitutional text would be a consequence of a popularity that the judiciary – in particular the Brazilian Federal Supreme Court – should have, and which – without any disrespect concerning the institution and its members – does not happen to our current political system.
Possibly, one could say that the constitutional rule may have gone through an informal process of change, or the mutation of the rule over time. However, once again, it is difficult to support this kind of phenomenon in face of the fact that, recently, in the year 2011, the Code of Criminal Procedure was amended to confirm – albeit redundantly – that the conviction can only be effective after the decision has become res judicata. Although constitutional and legal rules are on different levels, the enactment of a law is the unquestionable achievement of the popular will, in the person of their elected representatives.
It could perhaps be said that, at the time of the reform of the Code of Criminal Procedure, the Constitution should already have been considered as informally modified and that, therefore, the legal rules should be considered unconstitutional from their outset. However, if it is relevant to consider the chronology, then it seems undeniable that the general aversion against waiting that the decision becomes res judicata to enforce it has increased during the fight against corruption in the country (in particular with the results of the Carwash Operation), not before that.
An important point comes up: allowing the immediate enforcement of the decision would be – according to many people’s point of view – an essential condition to go on struggling. In contrast, binding the enforcement of the decision to the moment it becomes res judicata would mean to approve impunity and, thus, to reject the authority of the state, and the effectiveness of the judicial decisions.
Maybe that is a potentially fertile ground to explore legal arguments – not just political, sociological or any other kind – but to overcome the literalness of the constitutional text.