Source: Observatório da Imprensa
It never ceases to amaze me: members of Brazil’s high court engaging in ex parte debates in the media about cases currently or potentially before it.
A jaw-dropping example: Marco Aurélio Mello, the minister presiding the Federal Election Tribunal (TSE) at the time, going on TV, comparing Lula to Nixon and calling for his immediate impeachment. This was in 2005-6, the heyday of the “payola” scandal.
In the face of follow-up questions, the Minister said he was merely expressing his sentiments as a private citizen and refused any suggestion that he recuse himself.
He went so far as to admit that he had issued the incendiary statement without yet having read the official documentation on the case. Not even the cover page.
We have ourselves another such public debate, between (1) a venerable legal scholar — and Opus Dei supernumerary — who insists on in dubio pro reo and (2) the same voluble magistrate shouting “Watergate” on the courthouse steps, who favors a principle known as domínio do fato — roughly, it allows for convictions despite the absence of material evidence, as was the case with defendant José Dirceu.
As Consultor Juridico reports (reprinting the Folha interview):
Efforts by the press to twist the arm of the deciding vote knew no bounds: Globo went so far as to publish, on its opinion page, an article by Marco Aurélio Mello which, aside from being an inappropiate repetition of his vote, insinuates that he will reject the possibility of recusing himself during the hearing of the appeals. Celso de Mello will be the bearer of “a new era” in Brazilian justice. It remains suggested but unsaid, then, that a vote in favor of the appeals would represent the relegation of the judiciary to the dust heap of history.
A portion of the Gandra interview is translated below.
First, however, a brief piece by Alberto Dines in the Observatório da Imprensa as to why Gandra hides his ties to Opus Dei. Is this an attempt to discredit him as he himself defends an unpopular cause?
The interview with Ives Gandra Martins in the Folha de S.Paulo on September 22 (page A-10) is extremely informative and must have cheered up former federal minister José Dirceu and other defendants in Penal Action 470 [the “payola of the Workers Party”]
When he says that the former chief of staff to Lula was convicted without evidence, the legal expert hopes this will serve as a warning to corrupt politicians but at the same time, it gives rise to “monumental legal uncertainty.”
In the last 13 months, Dirceu’s was not the first to be judged on the basis of domínio do fato. It can be said to be the most striking case, not only only because the news media has embraced the domínio do fato theory without restrictions, to the detriment of what was once the unshakeable principle of in dubio pro reo, but because this issue was rarely raised by the major dailies, or was treated by them as something natural, as an example of pluralism.
At the very beginning the reporter notes that the opinion is not that of a “loyal PeTista” but by someone from the other pole of the political sphere. To promote the interviewee, the Folha cites the number of works published — some in partnership with Supreme Court magistrates — and his academic titles (professor emeritus at Mackenzie University and instructor at the elite military academies).
Not included was the fact that Ives Gandra Martins is the highest secular authority of Opus Dei in Brazil. … a beloved figure at the Folha, and frequent contributor to Page 3 Trends & Debates, the legal expert is always presented in an inadequate fashion, without mentioning an item that is from a journalistic point of view
Opus Dei is not a prelature like all the others. It is a formidable political organization based in Navarra, in Spain, with powerful branches in Portugal, Brazil, and other nations in the Americas. Its penetration is not a simple matter of financing. It has a lot to do with the press.
A consulting firm linked to the prelature for years and tied to the National Newspaper Association (ANJ), was responsible for a series of changes in the Estado de S.Paulo and its own most reputable journalist, Carlos Alberto Di Franco, is a regular contributor to the Estadão and O Globo. The home page of Opus Dei does not list its secular leadership, or Gandra’s Navarra connection, or his broad range of experience and talent.
Why this secrecy?
The Vatican, inspired by Pope Francis, is gaining transparency and vitality. CNBB, the bishops conference, is a traditional body, respectable and respected (especially in struggles for human rights.) Masonry was a secret brotherhood to defend itself from the persecution of the Holy Inquisition and later from fascist governments. Emerging from the shadows in the early 1900s, it is now an historical reference point.
The Work of God, Opus Dei, who is it hiding from? If its top leader in Brazil is involved in the shadows of anonymity, should the press not shed light on its beneficent activities? Former minister José Dirceu, at least, can formally thank him.
Gandra Martins: In dubio pro reo
But I digress.
In the view of Ives Gandra Martins, 78, one of Brazil’s most respected legal scholars, known for his conservative views, former minister José Dirceu was convicted without proof in the “payola of the PT” case. A professor at Mackenzie and the military service academies, Martins, in a long interview with Mônica Bergamo, published in the Sunday edition of the Folha, was emphatic in arguing that the application of the domínio do fato theory used to convict José Dirceu creates “monumental legal uncertainties.”
“As a lawyer with 56 years experience, this worries me. The theory that always prevailed in the Supreme Court was in dubio pro reo — doubt favors the defendant, Domínio do fato is a total innovation by this court. This theory never existed before,”recalls Ives Gandra, explaining his criticism of the conviction.
The legal expert says he read the entire file in the “payola” case and came to a conclusion: “There is no evidence against him. In the next round of appeals [embargos infringentes], Dirceu is unlikely to be convicted of criminal conspiracy.”
With the pressure felt by some magistrates to vote in accord with “public opinion,” as expressed by organs of the traditional media, Martins admitted that the trial “could have some political motive” to explain the selection of the heterodox rationale.
And he warns: “When I approach the case that way, I start working on the basis of indications and presuppositions. I no longer search for the material truth. You have people who work with you. One commits a crime and attributes it to you … Because you are her boss, you are convicted on the basis of domínio do fato …All Brazilian business executives now run this risk.”
That ought to put the fear of God in the nattering nabobs of negativism.
Asked whether he thought any of the court voted because of public or private pressure, Martins analyzed the role of live TV streams of the proceedings in the case. “I would say that TV puts the Supreme Court into a position of wanting to represent what society wants or does not want.”
This last remark resonates in an odd way with a quote provided to the W$J on the same subject in a September 17 interview:
“If the conspirators escape hard jail time, the public is going to be very angry and the Supreme Court is going to lose credibility,” said Sao Paulo lawyer and author Ives Gandra Martins.
Pressure exists, pressure is lamentable and to be resisted, but not ceding to public and published pressure will damage the Supreme Court institutionally. Which of the two contradictory roles does Ives Gandra endorse, anyway?
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