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Delicate relations

Study about Law professionals analyzes difficulty of being independent and serving the State

How is it possible to keep one’s autonomy while being part of the State? Professionals from the world of the Law, such as judges, prosecutors and chiefs of police, have lived with this dilemma throughout their history, in the quest for remaining committed to the provision of their jurisdictional services, even being part of the state machine, or working very close to it. In the book Profissionalismo e Política no Mundo do Direito [Professionalism and Politics in the World of the Law] (Editora Sumarê / Edufscar / FAPESP), sociologist Maria da Gloria Bonelli concluded that, in spite of this relationship, it is possible to construct this independence.

In her work, the fruit of research financed by Fapesp, Maria da Gloria opted to study four groups: lawyers, appeal judges from the Court of Justice of the State of São Paulo, the prosecutors from the public prosecutor’s office of the State of São Paulo, and chiefs of police of São Paulo. To analyze the relationship between these professionals and the State, she went back in time to tell the course of these public careers over the decades and to show how they developed the relationship with the Executive Branch.

The lawyers were the first group to be studied. They set up the first association in Brazil, the Brazilian Bar Institute, in 1843. Next, came the Brazilian Bar Association (OAB), the many organization of the class. The sociologist says that the elite of the lawyers has always been connected with politics. And as they have such an active participation in this area, they are usually join political parties. But they are eclectic: there are lawyers in all the political parties. The important thing is to differentiate the professional from the institution: the lawyer practices party politics, not the OAB.

This means to say that that the association does not take a stance with regard to the country’s political process. In the course of the democratization after the Second World War, at the time of the election to replace President Getúlio Vargas, the OAB decided to support the candidacy of Brigadier Eduardo Gomes. He was defeated, and the winner, Eurico Gaspar Dutra, exacted a high price. There were years of persecution of the institution. Another difficult moment was the military dictatorship. “The OAB practiced, and still does so, the politics of the profession, not of the parties”, explains Maria da Gloria, from the Social Sciences Department of the Federal University of São Carlos.

The OAB consolidated itself in the 80’s, with the experience of democratization. In this period, it succeeded in constructing its institutional autonomy. Obviously, the Bar Association does its lobbying. Obvious, too, that, within the profession, there are professionals of all the tendencies, from the left to the right, but it is difficult for one group to stand out too much, because one keeps a watch on the other. The fact is that the OAB has, today, an enormous political importance. “It speaks for society to the State, and works as one of its strongest defenders”, says Maria da Glória.

The paths of the lawyers and of the judges walk side by side. Both suffered a lot of attacks during the military regime, but they have a tradition of helping each other and supporting each other when threatened. The Court of Justice of São Paulo, a subject of the sociologist’s analysis, has pride in its constitutional struggles and of speaking in the name of the common good; it has been involved with social causes since the constitutionalist movement of 1932. The lawyers and the judges were the first to seek the construction of an identity of their own, centered on autonomy, and they were caught up later by the prosecutors. “The judges defended the independence of the Judiciary against the attacks of the Executive Branch in various historical contexts”, Maria da Gloria recalls.

Three powers
In the old days, the frontiers between the powers were less demarcated. A judge would carry out the functions of a chief of police and would act as a temporary governor in state governments, acting as the Executive Branch. Up until today, in the structure of the three powers, when the president, the vice-president and the president of the Congress or of the Senate is missing, it is the president of the Supreme Federal Court (STF) who responds – in ambit of the states, it is the president of the Court of Justice who takes over.

The great discussion was with regard to the bureaucracy of the State: up to what point did it jeopardize the independence of the magistracy? There were many discussions in literature giving an account that, for the characteristics of the Brazilian State, the Judiciary would be bound to class interests of co-opted by the politics of the State, which would control the category. With its separation from the Executive Branch, the class succeeded in building a strategy for defining a career. The institution of competitive examinations also contributed towards this, because, according to the researcher, the structuring of a profession helps to consolidate its autonomy.

The career structure created by the Judiciary means that it has great independence from the Executive Branch. Today, only the top of the career – the Federal Supreme Court – is filled by political appointment. There have been moment, says Maria da Gloria, in which dismissals and transfers could be done indiscriminately (this is only possible today with just cause). During the military government, a period in which the Judiciary suffered a lot, there were some dismissals from office for corruption that were, in fact, motivated by political reasons. The consolidation of the career may make this kind of intervention difficult. Nowadays, as already mentioned, it is only the STF that is subject to the scrutiny of the Executive Branch. President Luiz Inácio Lula da Silva will have five vacancies to define – a large number of seats, which may influence the institution’s profile.

Triple list
The Public Prosecutor’s Office in São Paulo was organized in 1946, along with the careers of prosecutor and attorney of justice. The lawyer who is approved starts his career as a prosecutor and is then promoted to attorney, as a member of the second level. Up until today, it is the governor who chooses the attorney general of justice, but only him – there is a top echelon made up of a council with 20 attorneys. The prosecutors have conquered the right to draw up a triple list, chosen by all the attorneys, for the governor to decide on one of them. The class fought hard to have duties in the social ambit. In 1981, it succeeded in going into the area of the environment – thus leaving the sphere of individual rights and going into metaindividual or diffuse cases, dealing with the common good. The Public Prosecutor’s Office also took upon itself issues related with consumer rights.

The prosecutors’ lobby during the 1988 Constituent Assembly was efficient. They organized themselves in order to have old demands approved, such as, for example, incompatibility, which means that a professional connected with the Public Prosecutor’s Office cannot occupies posts outside this office, nor be a candidate for political posts. This decision does not apply to those who were already prosecutors. The rule has now been valid for judges for a long time, but is not yet in force for chiefs of police.

Chiefs of police are the class that is most bound up with the State. If the prosecutors conquered their autonomy in 1988 and judges are pure Judiciary, chiefs of police are highly subordinated to the Executive Branch. According to the sociologist, they are the most fragilized class amongst the four studied in the book, but they are trying to change this. The generation that heads up the police stations nowadays is far different from the one in the military period. There is more supervision, transparency, training, human rights followers, and a consequent greater punishment for misconduct.

“They have their own organization and act politically to advocate a monopoly over police inquiries, today threatened by the Public Prosecutor’s Office”, says the researcher. The chiefs have police have been admitted by competitive examination since 1946, but it was only the 1988 Constitution that instituted for the whole country that they need to be lawyers. In São Paulo, this requirement is far older. The study by Professor Maria da Gloria Bonelli is part of a branch called Sociology of the Professions, in which she is one of the pioneers in this country. The scholars in this area seek to understand how the various professions develop and organize themselves, and what their real bond is with the State.

The project
Professionalism and Politics in the World of the Law (nº 02/07657-0); Modality Publication grant; Coordinator Maria da Gloria Bonelli – Social Sciences Department of the Federal University of São Carlos; Investment R$ 2,000.00