A judgment that does not allow the free expression of the divergence is simply unfair. The intolerance regarding the different opinions does not respect the history of the Federal Supreme Court.
Traditionally, the Supreme is the place where justice is formed by the divergence of opinions of ministers, who hold outstanding legal knowledge. We are worried about the new attempt of curtail the exchange of ideas.
It should be recalled two concepts. The motions for clarification, according to consecrated professors of USP, with the evolution of the Brazilian criminal procedure, fail to “establish a request for reconsideration, becoming a true appeal”. It is understandable that, as long as they are not open to a new discussion of the case (which is reserved to motions for rehearing), they can change the core of the decision, provided that there is ambiguity, obscurity, contradiction or omission.
The system is logical: it is not natural that there is a new judgment in the analysis of the motions for clarification, but also it cannot be perpetuated a contradiction that gives rise to an error or injustice.
If this is valid to any court, in the Supreme is even more serious, because injustice will be literally perpetuated, once some subjects will neither be discussed, nor even accepted the motions for rehearing. The Supreme decides on the liberty of persons in a single and last instance.
On the other hand, chicana, according to Aurélio, means “trap; plot in legal issues; trick; sophism; misleading challenge”. It is a serious accusation, whatever is the sense used, at most when directed to a minister.
Therefore, an incident occurred in the last session caused astonishment. It was not a simple “squabble” anymore. When analyzing a contradiction, the minister Ricardo Lewandowski was attacked without charge and unfairly only for expressing a different opinion on legal issue strictly technical.
And, logically, contradiction is not discussed without analyzing what was judged. There was no discussion or “squabble”. There was an oral excess followed by a sorry. On the previous day, the focus was on minister José Antonio Dias Toffoli.
The “logic” is the following: who considers a defense argument is chicaneiro, wishes to delay the judgment, last the discussion and does not want to make a serious work, in clear disrespect to the Supreme Court.
If reasoning was valid, there would not be reason for legal provision of this appeal. After all, it can only be analyzed if there are conditions to the discussion. Otherwise, the point of view of the defendants would be absolutely irrelevant, which is not compatible with one of the grounds of the Brazilian Constitution, the right to the due legal procedure.
Who wishes to analyze quietly the defense, fulfilling its role of judge, cannot be disqualified as enemy of the society. Republican liturgy does not bear this type of excess.
The institutional role of the presidency is to help, not suppress the discussion. Is to ensure the full court with conditions to resolve in a reflected and calm manner. Not to impose a personal position, but enable that the majority is reached, respected the divergence.
A judgment that intends to remove the opposition is unfair by excellency. The Brazilian society cannot agree with the attempt to silence a judge, because democracy is, for us, a definitive achievement.
Amongst the Brazilian institutions, the Supreme is that historically performed with more vigor the idea of express forbearance in the famous warning assigned to Voltaire.
Maybe there is no agreement with what a person says, but it should be defended until the last moment the fundamental right it has to freely express its opinion. At least in the democratic state ruled by law, it often happens so.
