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Opinion: lawfare in reverse – veiled Talionic law at play in Brazil

By Mario Rosa*

(Opinion) The concept of judicial lawfare has been described as the manipulation or use of laws as an offensive tool to vanquish an opponent without adhering to legal procedures or respecting the rights of the targeted individual.

This term rose to prominence in Brazil amidst allegations of misuse of the law in the Lava Jato operation. In several instances, the judiciary validated this claim of using the law to contravene the law itself.

The present scenario has taken an interesting turn, with the initial accusers of the misuse above now advocating for retribution beyond mere redressal of past transgressions.

This reciprocity, reminiscent of the ancient law of Talion – “an eye for an eye, a tooth for a tooth” – is a thinly veiled version of seeking revenge.

So, is this what the fight against lawfare has morphed into – a quest to practice lawfare in reverse to exact vengeance?

Justice as we would like to see it. (Photo Internet reproduction)
Justice as we would like to see it. (Photo Internet reproduction)

Have the targets, rather than the methods, become the primary focus?

Now, it appears that allegations can be concocted and disseminated years later, devoid of any evidence, and can be made public with blatant disregard for the principle of the presumption of innocence and due process.

In this paradigm, the accusers are inherently credible, while the accused are deemed guilty.

Is this our new reality – where calls for impeachment, incarceration, and swift condemnation are made under the guise of reacting to past abuses?

Are we destined to become a society where the former victims take up the baton of justice only to wield it recklessly, out of sheer rage, against their real or imagined foes?

It seems that the focus is on the truncheon that remains in circulation, rather than the hands that momentarily wield it.

Do we fail to realize that today’s victims, propelled by the virtuous desire to cleanse society from past misdeeds, may also become blinded by their anger, and, fueled by their adversaries’ immorality, launch devastating blows?

Is our fate to morph into a coliseum where gladiators engage in life-or-death battles? Is this the destiny of our institutional framework?

The current targets are undoubtedly those who either condoned or participated in the violation of the sovereignty of the branches of power.

This irreparable harm must always be met with the full assurance of the right to a defense, or else we concede victory to the enemies of democracy.

There are multiple ways to chronicle history, but once written, it cannot be altered. Thus, the actors of history must consider their long-term impacts.

This understanding leads us back to the contentious Lava Jato operation, and the same tactics that were once used against it are now being employed by it.

This includes the propagation of unfounded allegations, selective leaks, the propagation of an official truth, an imbalance of power between the prosecution and the defense, and procedural misdirection.

The supporters of a political justification for the Lava Jato actors argue that their alleged intent to undermine democracy cannot be treated lightly.

They assert that democratic privileges should not be extended to those intent on subverting the regime.

Thus, a form of “cleansing” is justified, even if it is achieved through formally legitimate but irrelevant reasons.

The victims of the past are the primary proponents of this argument.

The problem, however, from a philosophical standpoint (the reader may question: why introduce philosophy amidst “realpolitik”?), is that one of the driving forces behind the Lava Jato operation was the concept of cleansing systemic corruption from our political-economic system.

To achieve this, certain expedients were adopted and normalized. Today, similar methods are being used to “save democracy.”

It was once about “saving institutions” from corruption. However, with each successive “saving,” there arises a need for a future “savior” to rescue us from our present circumstances.

This results in imposing penalties, restrictions, and persecution – a state of affairs potentially more perilous than polarization.

It is the polarization of power: the victor has the right to wield the truncheon. If this is the path we tread, then only the hands will prevail, while heads will inevitably fall on both sides.

The question remains: will our institutions be run by hands or minds? The answer will determine our present identity and our future legacy.

* Mario Rosa, 58, is a journalist, writer, author of 5 books, and communication consultant specializing in crisis management. He writes for Poder360 every other week, always on Thursdays.

With information from Poder360

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