segunda-feira, 23 de abril de 2012

CNJ and the impartiality of the judges

One of the most expensive values of the Democratic Rule of Law is that of impartiality of the judges. Of the State Judge, presented from the professorship, always and when there is handle, always and when there are motives for the manifestation of the power to tell the law.
The principle of impartiality of the jurisdiction is intrinsically related to the values that inform the Brazilian procedural planning. As principle is what has to serve as a criterion to the exact comprehension and logical intelligence and rationality of the normative system, as stipulated by Professor Celso Antônio Bandeira de Mello.
When the CNJ’s inspector goes out in public soiling the dignity of judges, when, without putting themselves in an equitable position between the conflicted values, without even having jurisdictional power, we have its impartiality completely compromised, on which its search for the truth, is not a search: is what we know as “witch hunting”; inquisition, public exposure of the honorability of the “inspected”.
Now, if minimally, for coherence sake, no professorship, when fulfilling its duties on justice, can defend personal interests in its action. In the case, it has to be stated that the CNJ’s inspector can no longer develop its work impartially. Its public and media notoriety, dulling its work, stain its decisions, making all its activities, a mere appanage of a vanity measure, which only ignite the public imagination, discrediting the work of one of the powers of the State.
The CNJ, which is born with a congenital disease, which ever, supervising the justice provider organ, when such should be observed by the own Power, in the exercise of its sovereignty. It interests who such discredit? To whom it interests that the judiciary stops judging and worries with its own productions and bowels? 
The media has maintained repeatedly a stupid unanimity, as Nelson Rodriges would say on the unceasing on the CNJ, on an uncritical way. The reporters in the vain expectation of gaining notoriety on the pages of the big newspapers, do not fail on opening space for a judge who, as we understand, has completely lost her impartiality, and seems to believe on being the new Torquemada of the XXI century. The vigilante, common figure which insist on imposing itself on Brazil, as the correct form of correcting excesses and irregularities.
On the vigilante’s thought we have a premise: “The Law, now the Law, is incapable of solving problems because It was made by the elites for the elites”, as a consequence, has not to keep silent and respect for its public function, or for the dignity of one of the most important courts in the country.
We have to be active, and then, understand that an inspector acts with intense judicial activism, when occupies a mere administrative position which, in principle, should investigate if the there are or not irregularities on the action of the professorships.
Believing, naively, on the neutrality of the media exposure and the heated and explosives discussions on the inspection of the CNJ is now knowing, or making deaf of it, to the truth that all acts are political, that its own function is politics.
The exposition that São Paulo’s judges are receiving is unworthy of the Brazilian juridical tradition, a disservice to the population, a negation of impartiality, of the dignity of justice.
An inspector is, before all, a silent worker that seeks the truth. He is the same, the impartial, who seeks to bring back the tainted dignity by venal actions, by whose actions may bring discredit to the Power which judge’s serve. He is not an anchor of an auditory show, does not speak for the cameras, does not seek notoriety in easy and done sentences, does not disclose its nature, the time and the depth of his works, because they were not made for notoriety; they are works that seek the preservation and rescue of the dignity of the judiciary.
As Márcio Puggina teaches:  No political scientist, with a minimum of seriousness, would dare say that the members of the judiciary are apolitical. This would sound as absurd as to assert that religious are sexless by scientists, just for the imposed the duty of chastity.”
As such, knowing that the judiciary is not apolitical, that the inspector of the CNJ, when exposing the professorship, seeks the construction of a media and political space, of personal belief, ask itself: what happened with Brazilian newspapers, that made them handle palms on an auditory show, stared by who should be, by principle and obligation, the most discrete of all authorities?
The attack to the Democratic Rule of Law begins with good intentions and always ends the same way: with the leap from the boots of those who, by not having pens supported by the law, have weapons to impose its will. Who has lived, has seen! Who will live, will see!
Version by: Pedro Henrique Carvalho da Costa

About the group

“About the group, it is as I said: it is always Mafioso, always closed, always fascist. And there is no right or left. It is all the same.”
Millôr Fernandes (1923-2012)

sábado, 21 de abril de 2012

El Aborto - Isabel Allende

El aborto es un problema que afecta a casi todos, directa o indirectamente, por lo menos una vez en la vida. Nadie es a favor del aborto. Es una solución desesperada que no agrada a nadie y que deja siempre cicatrices emocionales y físicas. La gente tiende a tener fuertes opiniones sobre el aborto, sin haber dedicado la debida atención y la profunda y amplia reflexión sobre el problema que [es necesaria].
[El estúdio de la question hará que todos] observarán que, a pesar de las fuertes diferencias de opinión que existen, es posible concordar sobre algunos princípios básicos, que podrían permitirnos llegar a un "consenso de sobreposición". Poner en práctica los elementos básicos de este consenso permitirá minimizar el sufrimiento que tantas mujeres tienen que suportar cada dia, en cada esquina del mundo.

Isabel Allende

voluntary interruption of pregnancy

Sexuality’s history is a fundamental theme that has always aroused a big interest in sociology, politics, religion and everyone’s Rights, branches of the human knowledge that try to interpret and suit the changes on humanity’s mentality in all its centuries.
When we study the sexual practices and birth rate control, we realize that historians and lawyers concluded that these are phenomena in constant transformation, that point to cultural characteristics to the periods they are inserted.
Abortion is then a water-divisor in the moral of religions and cultures. For religious reason, many are still against the voluntary interruption of the pregnancy in any of its stages. There are also those who accept it in its first months, even against their beliefs. Maybe these people accept it due to knowledge that, every year, 200.000 women die from abortions in subhuman conditions, product of the prejudice and the arbitrariness of a hypocrite morality. Since 1946, more than 12 million women, who did not want or could not have children, have died. They paid with their lives our ignorance, a holocaust multiplied by two, in the name of moral and the good costumes. On what does this genocide differ, on its principles, from the German laws from 1933-1945?
On 2000 years of Christianity, there has been a big change in the theological opinion on this behalf, going from the radical prohibition of abortion up to its acceptance, according to the concept of animation, which for men occurred with 40 days of life, and women on the 80th. It was said that abortion would only be a sin if the fetus was animated, shaped; with human-like characteristics, a doctrine which prevailed for fifteen centuries. As such, it is to ask why modern spirituality has not become more flexible, and not more severe and completely off the social and cultural reality of the contemporary occidental society.
And the problem of the complex, unpleasant and painful abortion, which cannot be removed from the public agenda, even with all the effort from puritans to prevent its mature and rational discussion. The omission or superficial treatment of the theme does not do any good to a society capable of looking back, while every year thousands of young women and adolescents, in their majority poor, die, because not discussion abortion is also a form of economical selection. Not to forget that many more suffer grave injuries as consequence of unsafe and social and moral stigma heavy abortions.
It is important to comprehend that this is not an apology for abortion, to propagandize abortion, or even convince one against it to become in favor of it. It is an alert, so that no one has to go through an unwanted pregnancy. The human being does not deserve said condition! This discussion seeks a double effect: on the one hand, enable the truth of the facts to all, beyond declarations of principles and the law. On the other hand, allow the knowledge of the development that the theme has acquired as a collective process.
There is a lot to do so that there can be a collective change of conscience, so that legal advances, like the one with the 3th PNDH, can face the eternal confusion of State and Church.
It is about decriminalizing the Voluntary Pregnancy Interruption, without any violence on unwanted maternity of the women, and so that she is the last judge on the birth of a new human being.

Version by: Pedro Henrique Carvalho da Costa

decriminalizing abortion

The matter of decriminalizing abortion is intimately connected to the social and political bases which cannot be separated. The first base which this discussion must be yoked on is that we live in a secular State. The second is of values, for most noble and fundamental, which a community of believers or politics, cannot, in any hypothesis impose itself on the nation, but only to those who, voluntarily adhere to its beliefs and determinations.
Decriminalizing, in criminal law, consist in considering atypical an act which occurs in society. Now, it is impossible that, without a big dose of dishonesty and hypocrisy, one would not comprehend that decriminalizing abortion does not mean its liberation, even less stimulate it. Decriminalizing is not turning it legal; just atypical, from the legal point of view, being able to still be typical, immoral, indecent or whatever you want in a moral, ethical or even faith or political way.
Adultery has left being a crime, but for the vast majority of Christians, religious of any faith and a big parcel of the jurisprudence, it continues to suffer some moral repression, more hypocrite that effective, but still legit on its continuity of its ways of thinking
For we to comprehend the decriminalization of abortion, we first have to understand a concept in two aspects. The first one is more ample, which consists in removing the juridical sphere the act of stopping voluntarily pregnancy, letting it exclusively on the health department and the conscious of the woman, inside her own reproductive rights, which we understand as decriminalization.
The second one, more restrict, aims only a legal provision prohibiting application of the penalty, when the interruption was made by the pregnant woman, according to her will, keeping the act itself, however, as illegal or crime. That would be the decriminalization, keeping a moral sanction of the act.
However, when we mistake voluntary interruption of pregnancy with abortion, we provoke a moral and religious sanction that imposes itself on a dishonest way to the whole population. The defense of a woman’s right to keep or not her pregnancy only fits her, since she is in the field of difficult and painful decisions that a woman, and only her, can take regarding the act of maternity for herself and her community. How can we, men, discuss the rights of someone giving birth, when we ourselves are unable to understand the relationship of the mother and her unborn child, and later the mother-child relationship?
The present concept of abortion in Brazil, is built on articles nº124 to 127 of the actual criminal code, one of the many inheritances from dictatorial and paternalist periods of our political evolution.
The current concept of abortion is that of the interruption of pregnancy before it ends. In this aspect, the vote of Minister Cezar Peluzo, in which we disagree in thesis, is perfect when denouncing that there isn’t, effectively, any reason, ethical or juridical, that justifies the Superior Federal Court of allowing the abortion of anencephalic fetuses. His vote is not in favor of the permanence of the criminalization and suffering of thousands of Brazilian mothers; it is to denounce the hypocrisy prevailing in the Brazilian Congress, that refuses to comply with his duty of changing the law to accompany the development of the Brazilian society and, more that that, make effective the separation of Church and the State, which dates more that 123 years, in which we talked about the catholic stand, the evangelic stand; now, on the congress there can only be partisan stands, representing the conductive forces of the Brazilian society. A Church that seeks to elect representatives to affirm its values to the whole society, is no longer a Church, but a society of gangsters or a reactionary political party, where should stop being recognized as a Church, but as a political and social movement with all its implications.
If we tolerate the moral abortion, when the pregnancy is result of rape, or the sanitary abortion, when the pregnancy brings severe risks to the woman, we understand that the physical and psychological health of the woman are on its unalterable rights, protected by the Letter of 1988, mainly in its 5th article.
It is important to reinforce that we are not here to defend abortion, even less promoting it, and to comprehend the position that we defend it is important to visit Ronald Dworkin’s work, Life’s Dominion– Abortion, euthanasia and individual freedom, where we brilliantly expresses:

I would love to convince these people (advocates of criminalizing abortion) if they are willing to listen to me, that they misunderstood the basis of their own convictions. Or, anyway, that there is acompelling focus of moral controversy that would allow them to continue to believe with full conviction that abortion is morally wrong, but also to believe with equal fervor, that pregnant women should be free to take a different decision if their own beliefs so permit or require. This is the highest ambition of this book. [1]

Comprehend pregnancy as another woman’s right, and defend it as a possible choice, makes it incomprehensible the application of any sentence to the voluntary pregnancy interruption.
If, even in a hypocritical way, we comprehend the sentence as a measure that seek necessarily the protection of juridical goods, universally understood as inalienable and a reintegration of the agent in society, when we apply a penalty to a mother who voluntarily stopped her pregnancy, we create two absurd situations: the first, the value to the fetal life, for her, isn’t the same that we consider universal. Even more so, only she can dimension the life she carries inside herself, being incomprehensible this value to other humans; second, the penalty in the case of abortion will not reintegrate her into society, it stigmatizes her, devalues her and makes her guilty of something brutal, which impacts her psychologically, morally and socially, being a disservice to society.
A dispassionate and attentive look at abortion as a social problem in Brazil denounces the current situation, which is absolutely unsustainable, where the justification for the penalization for the voluntary interruption of the pregnancy lies only with the confusion between the State and the Church, and by the abject and vile cowardice of our parliamentary, who fail to fulfill their duties, of giving the Brazilian nation a legislation for all, and not only for the fundamentalists on duty!
[1] DWORKIN, Ronald. Life’s Dominion – Abortion, euthanasia and individual freedom. São Paulo, Martins Fontes, 2003. Fl. IX. – tradução livre.

Version by: Pedro Henrique Carvalho da Costa