Jamil Chad Lawfare in Lula’s third government: funeral or resurrection? Posted by Rafael Valim* 28.11.2022 13:33

By Rafael Valim*

Anyone with minimal knowledge knows that since 2014 Brazilian politics has been preceded by a phenomenon called “rule of law”, which means “the strategic use of law to illegitimate, harm, or destroy an enemy.” In other words, the manipulation of legal instruments such as impeachment and criminal proceedings resulted in serious attacks on popular sovereignty that led to the rise of the right to excess power.

It is true that the left has been the main victim of the rule of law in recent years. However, we cannot forget that much of the circumstances that led to the legal battle in Brazil were provided by the left itself, a good example of which is the unconventional idea of ​​appointing the Attorney General from a list. created by the far left. career.

After the frenzy of the electoral victory, a legion of car wash law experts, delivery men, putschists began to arrive in Brasília; ” any extremism against the new government. Faced with this situation, the question arises: will we bury or resurrect the law?

Jurisprudence is not only faced with a ‘legal crime’ configuration, as some naively think, and there is no ready-made formula to contain it. However, the theory about the phenomenon gives us valuable indications of what to do to avoid it.

Lawfare develops in three strategic dimensions: geography, armament, and externalities.

Geography is represented by the public bodies responsible for enforcing the Law – judges or administrative authorities – depending on whose interpretative dispositions the legal arms will more or less apply. In this dimension, in addition to the necessary reinvention of public procurement for entry into legal careers, an uncompromising selection criterion is imposed for judges of the Supreme Courts; There’s no room for last-minute “rescuers”. Bringing such candidates into the party game or succumbing to “campaigns” in favor of certain candidates is a sure way and there is no going back to law.

Armament, on the other hand, is related to the legal norm used to attack the enemy. Anti-corruption, anti-terrorism, and national security laws stand out among lawyers for conveying vague concepts that can be easily manipulated, boasting severe precautionary and investigative measures, and severely affecting the enemy’s image. This dimension is often created in technical-looking government commissions made up of moralist professionals who love foreign words, consciously or unconsciously coining rules into Brazilian laws that are celebrated at international conferences but are terrible for democracy and national sovereignty. As in the geographical dimension, existing legislation that promotes a structured fight against corruption and at the same time guarantees the fundamental rights of the accused needs to be reviewed and new laws enacted.

Finally, under the dimension of externalities, information manipulation techniques are examined to create a favorable or acceptable environment for the use of legal weapons against the enemy. Therefore, they are concerned with strategies other than legal battles that aid victory over the enemy. In Brazil, on the pretext of protecting the entire freedom of the press, the contradictory relationship between the justice system and the media is not regulated and leads to all kinds of abuse. For example, in the UK the so-called contempt of court, for which the communication tool that poses significant risk to legal proceedings is held responsible. It is not prohibited, but restrictions have been placed on the journalistic coverage of pending or pending cases to protect Justice, which must always ensure a fair, independent and impartial trial. If we want to advance in the fight against the law and develop our democracy, this is the direction we must go.

The disastrous effects of the rule of law are widely known, especially around the Brazilian left. There is still time to decide whether to bury him or resurrect him.

* Rafael Valim holds a PhD and a master’s degree in Administrative Law from PUC-SP, where he taught between 2015-2018. He is Visiting Professor at the University of Manchester (England) and Université Le Havre Normandie (France) and co-authored “Lawfare: an introduction” (Editora Contracurrent, 2020) with Cristiano Zanin and ValeskaTeixeira Zanin Martins.