Who’s affraid of Justice?

Opinion piece by Paulo Valério published [in Portuguese] in the Expresso newspaper on February 5, 2024.

In a climate of undisguised tension between politics and justice, with the far-right pushing the boundaries and on the verge of elections, the crossroads are clear. Should the parties with an affinity for the Democratic Rule of Law take control of justice policy or, on the contrary, freeze in fear, as suggested by Luís Marques Mendes a few days ago? I opt for the former.

Politics cannot evade justice (which is not limited to criminal justice) lest it abdicate its own responsibilities: preserving the Democratic Rule of Law; ensuring judicial protection for the rights of citizens constituted by parliament and the government; strengthening the economic justice dimension, essential for the country’s development; and also, within the democratic left, having independent thinking in areas of sovereignty, avoiding the right-wing monopoly, especially the far-right, in this domain – security with freedom; defense within the framework of our international commitments; justice with guarantees. Politics abhors a vacuum, and this is the terrain that, if left vacant, will be occupied by populism, extremism, one might even say, barbarism.

On the other hand, from a pragmatic approach, it is clear that the incessant repetition of the mantra “politics is for politics; justice is for justice” no longer defends anyone, as recent events well demonstrate.

Is acting in justice an attack on the separation of powers? Of course not. If it is the courts – and only them – that judge; if it is the Public Prosecutor’s Office that is responsible for investigating; only politics has democratic legitimacy to establish the normative framework for the courts’ actions, whether internally or externally, in the name of the people. Politicians do not judge or investigate. Courts do not legislate. Simple as that.

But the task is not easy.

The speed of decisions must be subordinate to the quality and respect for the rights of the various procedural participants. The stability and clarity of laws cannot ignore the dynamics and complexity of economic and social relations. Justice must know how to communicate with citizens in a timely, appropriate form and content, but without succumbing to simplification or tabloidization. Institutional capacity building is done without prejudice to the separation of powers and the autonomy space of the different judicial actors.

Furthermore, digital transition should not serve to whitewash justice through apps and portals, but rather to address, at the heart of the problem, organization, goal setting, result measurement, in short, the daily management of teams and processes, to provide good, prompt, transparent, accessible services to citizens.

Should politics ignore the model of access to law and courts for the most disadvantaged? No. It should evaluate the system and present alternatives so that corporate interests do not prevail over citizens’ rights.

Should politics ignore the latent conflict in various legal professions? No. It should work with everyone and ensure that all – judges, prosecutors, lawyers, solicitors, judicial officials – find a common ground for building solutions to justice problems.

Should politics ignore the congestion of administrative and fiscal courts? No. In addition to managerial measures, it should question the chronic failure of the State when litigating with individuals. If it does so, it may understand that the problem is resolved upstream, ensuring that the administration (with a focus on tax administration) acts in a qualified manner, respecting the principle of legality and aligned with prevailing jurisprudence.

Should politics resign itself to the fact that prison walls are whitewashed sepulchers? No. It should strive for a greater humanization of the system to better reintegrate, rehabilitate, and resocialize incarcerated citizens.

Should politics allow suspicions about itself to already be handcuffs, preventing it from addressing, for example, systematic breaches of judicial secrecy? No. The defense of the Democratic Rule of Law and respect for the autonomy of the Public Prosecutor’s Office must be reconciled with the hierarchical subordination model provided for in the Constitution and with the necessary scrutiny within the framework of democratic rules.

It could be this, and other things. Alternatively, it could be as Dr. Marques Mendes suspects.