Analysis: The dangers of a super Supreme Court

247 - There is a fear, as Congressman Nazareno Fonteles rightly stated, that the Supreme Federal Court (STF) will become not only a "carpet for the defeated," but an instrument of force to circumvent popular sovereignty. This statement comes from journalist Miguel do Rosário, from the blog [blog name missing]. The Coffee, In an article published this Tuesday, he argues that the media is a problem behind this, as it applauds the ministers daily. Read below: 

The risks of a super Supreme Court

Montesquieu says that "various things govern men: climate, religion, laws, maxims of government, examples of past events, customs, and manners."

If he were alive today, the Frenchman would surely add to the list this powerful institution called the media. When theorists of democracy wrote their classics on the subject, it had not yet reached its current magnitude. Because it is free from the democratic constraints that regulate the other branches of power, all the forces of arbitrariness have converged on the "anarchic" environment of the media, like someone searching for the last wild beach.

In other countries, the structural problem of the media and the imbalance caused by its presence in the delicate system of checks and balances of the democratic regime have been resolved through solid and intelligent regulation, the creation of respected independent public channels (such as the BBC), and, above all, the encouragement of pluralism.

In Brazil, nothing was done to regulate the media, partly because the military dictatorship itself constituted the quintessential process of weakening democratic institutions in favor of arbitrary forces. And also because, for the imperialist interests that have always operated in Brazil, the media was the only power that escaped the uncomfortable influence of popular sovereignty.

The consequences are similar throughout Latin America: after decades of dictatorship, as democracies slowly begin to emerge, countries find themselves facing gigantic media groups deeply entrenched in every compartment of social life.

A strong and independent press is fundamental. But it must also be pluralistic and democratic. This is not the case in Brazil, where there is no strong press in municipalities and states, apart from those companies that redistribute Globo's signal, generally dominated by political families. Independence, in turn, has always been tremendously relative in a country where large American agencies have always dictated the rules in the advertising market. As for pluralism, well, there we have a picture of total desolation.

This situation is now compounded by a process of increasing empowerment of the Supreme Federal Court (STF). Amid the debates we have been having on the subject, some columnists are pointing out that, historically, it is not uncommon for the judiciary to overstep its bounds.

Alexander Hamilton himself, in The Federalist Papers, a great defender of the institution of the supreme court and the judiciary, admits that there are times when the latter may be tempted to usurp the power of the other institutions. But Hamilton shows no fear of the judiciary, recalling that it is by far the weakest of the three branches of government. The Executive has physical force; the Legislative controls the budget and taxes; the supreme court's role is merely to oversee the Constitution.

However, I fear that Hamilton's tranquility would be greatly shaken if he witnessed what we have seen in Latin America, especially what happened in Honduras, when its supreme court ordered the summary arrest of the president of the republic and his immediate deportation to another country. Or if he witnessed what we saw in Brazil during the trial of Criminal Action 470: a Supreme Court tearing apart the fundamental principles of modern law, such as the presumption of innocence and the need for evidence, in an effort to satisfy the vendetta-driven thirst of some influential sectors of society.

The superpowers of our Supreme Federal Court have several roots: to begin with, perhaps we can even find a cultural origin, in the overvaluation of the figure of the "doctor." Since the beginning of democratic practices in the country, even before the republic, the Brazilian elites sought to maintain their political hegemony over the population through the establishment of a kind of academic patriciate. Only the "wise" trained in the rare and closed public universities would have the right to pursue a political career.

This view persists to this day. Once, an intelligent and cultured acquaintance asked me how it was possible for parliamentarians to draft laws without formal legal training. It wasn't a conscious prejudice, but rather a lack of awareness that our parliament houses some of the country's leading legal experts, who advise the Chamber and the Senate. Indeed, that's why the Constitution and Justice Committee exists, so that parliamentarians can debate, together with the country's leading jurists, all issues concerning the Constitution: its flaws, loopholes, excesses, omissions, virtues, and possibilities for improvement.

Then an extremely dangerous situation arose. The social fracture produced, in the upper strata of society, a pathological fear of the people, which translates into hatred of parliament. In his books, Wanderley Guilherme dos Santos always insists on the issue of the exponential increase in popular participation in the total number of voters. This factor corresponds not only to the strengthening of Congress as a representative of various economic and social interests, but also to the emergence, within parliament, of all the vices of the masses. Congress suddenly begins to reflect the latent conservatism of the Brazilian people.

That's where we see emerging, in the wave of repudiation of PEC 33, which imposes limits on the superpowers of the Supreme Federal Court (STF), a curious alliance between some progressive sectors and the most odiously reactionary fringe of society. I perfectly understand the sectors that see the STF as an ally of minorities and human rights. Where else could we find support for gay marriage if not in the STF? Where else could we approve the legalization of marijuana? Where else could we overcome religious obscurantism and approve stem cell research?

In these matters, we witness a moving supra-ideological alliance of the Brazilian elites. The conservatism of the upper class is liberal in its customs. Their children or grandchildren smoke a joint. They themselves smoke one. Some are gay or have homosexual friends. The high culture to which they have had access has opened their minds when it comes to customs. This is great.

In this sense, it is positive that we have a counter-majoritarian Supreme Court, which reflects not the will of the majority, but the aspirations of the most enlightened segments of society.

But everything has a price. This paternalistic Supreme Court, protecting us from the conservatism and ignorance of the ignorant masses, becomes intoxicated with so many obsequious gestures from high society that it suddenly sees itself as the most important force in the republic. The main characteristic of power, Hamilton reminds us, is "encrouchment": it tends to grow indefinitely, as long as no checks and balances are placed upon it.

Therefore, it is quite interesting that the forces now questioning the judiciary's superpowers also form an intriguing mix. On one side, reactionary sectors, linked to religion, have discovered in the Supreme Federal Court (STF) a power contrary to the strength they have been gaining among the people, as they increase their representation in parliaments. On the other, sectors of the working class see the Supreme Court as an ally of the mainstream media and an enemy of the parties that represent them. Finally, intellectuals and bloggers, appalled by the STF's ultra-partisan actions in the Mensalão trial, fear the emergence, here in our peaceful land of the sabiá (a type of bird), of a coup force. There is a fear, as Congressman Nazareno Fonteles rightly stated, that the STF will become not only the "carpet of the defeated," but an instrument of force to circumvent popular sovereignty.

It must be admitted, however, that behind this problem, we always return to our bloated, oligopolized media, organized in the form of an ideological cartel, which saw in the Supreme Federal Court (STF) an instance vulnerable to pressure campaigns, through vanity, or threats and blackmail. Ancelmo Gois publishes little notes almost every day mentioning, for example, that Joaquim Barbosa was "applauded standing up" at a certain cultural gathering of the middle class. After all, it is always easier to influence the minds of five or six ministers who move in the narrow world of the elite, and who, like all human beings, lack prestige within the segment to which they belong, than to influence 513 deputies or 51 senators, who need to be accountable to their voters before they are accountable to the subscribers of the newspaper O Globo.

We cannot forget that gay marriage was recently approved in France by its parliament, and marijuana was legalized in yet another number of US states through popular referendums. Changes endorsed by suffrage reveal democratic maturity and are the ideal way to evolve.

Brazil will have to find an intelligent and democratic solution to overcome these dilemmas. It is extremely healthy, in any case, that this debate is happening now, because in 2014 there will be no such opportunity. We need a strong, independent, progressive, and counter-majoritarian Supreme Court. But we need, even more, a Supreme Court that respects popular sovereignty, parliament, doesn't engage in partisan games, and bravely resists the obscure and cunning pressures of our media.