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“Operation Lex”: an institutional earthquake | Opinion

1. There are such grave and grave moments in the political-constitutional life of states that they cannot be ignored or devalued. They are so dramatic that they shouldn’t be dramatized. And even if the regime’s mourners hide at the door, when the wound is deep, when it reaches the vital organs, when it puts everything in danger, there is no place to shout or for the spectacle. When the independence and impartiality of justice are at stake, the question is one of life or death. There can be no disguise or conformism. For genuinely serious questions, gravitas, “gravity,” should be called.

2. I have been studying and following justice issues for decades and I think I know the Portuguese justice system quite well. For over twenty years, in academic writings and in civic and political interventions, I have fought for substantial changes in the field of justice, all aimed at strengthening the legitimacy, accountability and control of the judiciary and of its actors. It is a question of legitimizing and democratically holding an increasingly relevant power, without this diminishing or pinching, on the contrary, judicial independence and the autonomy of criminal persecution. This is a complex and delicate constitutional task: to ensure legitimacy and ensure accountability, to preserve independence and to increase efficiency.

3. However, I have – or have not had – doubts that the main problem with Portuguese justice is of a practical nature: slowness, lack of rapidity and lack of preparation. Then comes an already institutional problem: the prevalence among magistrates of an attitude and mentality of “career”, “employee” and “body” which is not compatible with the appropriation of a body. sovereign or participation in the exercise of sovereign functions. From immense contact with the judicial world, I have always had the impression that Portuguese magistrates were (and are) serious, honest and honest. This bodily spirit could be criticized, the systematic refuge in the absence of means, an exacerbated tendency to make formal decisions, but always with an intrepid dedication to honesty in front of the parties and impartiality in the case. Indeed, they could and can say that they cultivate the last bastion and the most solid guarantee of judicial independence: what Castanheira Neves so aptly called “vocational independence”.

In many cases of disciplinary responsibility, there have been breaches of attendance and performance obligations, breaches of exclusive obligations, cases of abuse or excess of power or even the appearance of “personality disorders”. “Or” character “. But no corruption, no bribes, no favoritism, no clubism, no conviviality, no predilection. This reality and the image of public dignity and decency that it projects are capable of generating enormous confidence in the system and of giving it an undeniable legitimacy which enables it to overcome or at least to compensate for the deep social discontent with the endemic slowness.

4. The Lex case – even taking into account that it is still in the prosecution stage – represents a real turning point. For the first time, there is a constant suspicion that judges have been corrupted and have systematically acted in the interests of interests wholly unrelated to their office. Worse yet, there is a valid suspicion that this was not an individual performance, typically pathological, but a concert performance and collusion. Worse yet, there is no cure for a group of judges with little or less experience. All are judges of a higher court, one of which has presidential responsibilities, with public recognition and fully integrated and linked to the judicial environment. The link, even partial, with the world of football only makes the suspicion denser and heavier. The partial link with the José Sócrates affair underlines the alleged complicity with politics. The unfortunate and disastrous situation of António Costa allowing himself to be associated with the football candidacy of one of the defendants is another ingredient that fuels the suspicion of an alleged “justice-football-politics” triangle. The Minister of Justice – who incidentally could not resist to “apologize” Costa by removing the “intimate contradiction” – could not have had a more unfortunate opportunity and a worse situation to present her anti-corruption pact late.

5. It is quite obvious that a case with these outlines deeply undermines confidence in the judiciary and has devastating effects on the perception of citizens. Faced with an institutional earthquake of such gravity and so that it does not turn into an earthquake, with or without a tsunami, it will be necessary for the Superior Councils, the presidents of the supreme courts, the Attorney General, the President , trade union associations and their leaders and well, the professional classes are doing everything in their power to restore confidence in the integrity and seriousness of our magistrates. The same is true of the government and, in particular, of the President of the Republic. So far, only the president of the Union Association has been up to the task. The silence of other officials and the less fortunate use of the word “happy” by the President did not help much.

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6. The risk remains that the vox populi will fuel the demagogic rhetoric of those who think that “after all, they are all the same: even the judges!” and those who believe that “the country is in the hands of a caste”. And the incentive for prevaricating litigants to make attempts to “approach” and “approach” magistrates, who until then had not dared to undertake. Finally, the judges will also be taken to the “coffee talks” which were mainly aimed at politicians. And I say it as a politician: for democracy and for society, it is much more dangerous to suspect judges than politicians.

YES. Ursula von der Leyen. The President of the Commission gave a remarkable speech on the State of the Union, showing ambition and vision for the future and presenting himself as the European leader of the future.

DO NOT. Donald Trump. The desire to replace notable and legendary judge Ruth Ginsburg before the election is another terrible democratic practice, with electoral effects and political and legal effects in the medium term.

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