At the moment this article is being written we will be waiting for the second round of the presidential election. By the time it is published, the result will already have become known, and the casual and patient reader must immediately take this into account.
Writing about the future – for those who are not invested with prediction skills – is always risky, and the legal environment is no exception. Despite this, it seems impossible to resist the temptation to predict the short-term future. The moment we are going through – especially regarding the perspective of who the winning candidate shall be – almost pushes us to do so. The mass media – not only the press – are overwhelmed with material that seeks to make such projections. One part of this does not go beyond some personal opinions which are still immature or without a due base (however, they are not unlawful); another part of it must be understood in the context of the electoral dispute and the partiality (quite often emotional) of the strategies used to attract the votes; and, a third part of it may be taken seriously, whether one agrees or disagrees with the opinions expressed.
What then could be expected from the legal system and from the judiciary power in case the projections of the presidential polls are confirmed?
The main visible concerns seem to be that rights will be relativized; that the empire of fake news will prevail; that truculent practices by the public servants (notably police officers) will be tolerated or even encouraged; that the minorities will be attacked; that the judges and non-aligned prosecutors will be persecuted; that the environment will suffer as it has never happened before; that the rules protecting the vulnerable will be revoked, and so on.
Considering the remarks that had been previously made, it seems neither right – nor prudent – to simply say that such concerns would be unfounded. When the subject is the preservation of the democratic coexistence, all the attention is necessary and the authoritarian discourse – although it may be restricted to a “mere” discourse – is reason enough for us to be (or to remain) alert and vigilant, especially in a country where, unfortunately and for various reasons, the principle that every power emanates from the people, and shall be exercised on their behalf does not prevail.
However, surveillance exclusively based on gloomy projections does not seem to be the only – not even the best – attitude.
First of all, it must be taken into account that the current state of affairs – whose responsibility is, to a greater or lesser extent, of all those who have exercised the power in the last thirty (30) years – is not exactly a bed of roses in terms of democratic coexistence. In other words, many of the fears mentioned above are not – at least not only – a projection of what so-and-so may do in the future, but they are a part of our present. Authoritarianism has been among us for long, even after democratization. And it can not be denatured by the simple fact of coming from someone who has a discourse that is self-proclaimed as democratic; as a matter of fact, the antidemocratic practice that one attempts to shield behind the values which are precious to democracy is much more disgusting. In the university life – and I am about to complete forty years of academic life – this can be clearly noticed. Even those who, fortunately, have not been direct victims of authoritarian attitudes will certainly have lived with the fear of being one of them; the result is a limitation to freedom, even more painful when it comes from someone who would be expected to be an uncompromising defender of values such as solidarity, respect and tolerance. Unfortunately, ignorance was not born yesterday and it also thrives in supposedly enlightened environments. Also, unfortunately, a good part of the fears about the future that were listed above is part of our present.
Therefore, instead of just projecting a gloomy future, it may be more productive if we have a realistic and critical attitude towards the present moment, that is, how we have got to this point, and how much each of us is responsible for the unlucky state of affairs of the country – apparently divided between “he steals (because he was corrupted, and consequently he disseminates corruption), but he gets things done,” and “he is authoritarian, but he gets things done” – notwithstanding those who resist and reject any of these sides. This awareness may allow us to identify the true origin of our fears: do we fear the behavior of so-and-so, or do we fear the conduct of our own fellow citizens? What is the cause and what is the effect in this deplorable scenario that we have arrived at?
Furthermore, if we identify the evils that are about to come (or to be worsened), we can and should strive to strengthen the immune system of the democratic regime. To do this, we must have institutions and tools to control the powers, not only the judiciary, but also the legislative, which clusters – or it should cluster – our representatives, who, more than editing general and abstract rules, are responsible for the control of the executive power. The skeptics will say that this is naive. And it really is, as long as we do not convince ourselves that power is not something we give away to others – our representatives – so that they can make use of it as it pleases them.
Is it really credible that the elected president, whoever he is, will be above all this? Will we allow anyone – or any group – to defraud the public property, by furnishing the state branches or otherwise? Will we allow anyone to confront the rule of law, pursue, torture or kill? Will we give an individual, or even a group all that power?
As a condition of my permanence on Earth, I can only believe that the answers to such questions are negative. I wish to believe that, whoever the winner is, the future of the rule of law is still in our hands, and beyond our discourses, must be put into action.