O Judiciário precisa estar sujeito ao povo

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A marcha dos acontecimentos colocou em pauta o problema do poder judiciário. Em vários países ele foi usado para redefinir o poder político por fora das eleições. No Egito a suprema corte foi usada para cancelar as decisões do presidente eleito, Mohammed Morsi, em preparação para o golpe militar.  No Brasil a STF arbitrou o processo de impeachment, de maneira arbitrária diga-se de passagem, estabeleceram que a votação de aceitação do processo precisaria apenas de maioria simples para passar, quando o natural seria dois terços. Esses alguns exemplos, levando em conta as mais altas cortes, onde até a constituição foi reinterpretada para garantir a vontade das classes dominantes, o fato é que isso acontece numa base diária, nas primeiras instâncias espalhadas pelo país, o poder dos juízes ao julgar é enorme, o poder dos promotores de acusar também, afinal como defendem os golpistas e a lava-jato, direito não é matemática, tem que ser interpretado pois não é exato. Portanto os golpistas do judiciário interpretaram a lei da pior maneira possível para a esquerda e da melhor possível para os próprios golpistas, com os promotores interpretaram o sítio de Atibaia como sendo de Lula, sem provas mas com convicção de acordo com eles mesmos, e o juiz interpretou isso como aceitável. No caso do tucano, o STF julgou que faltava consistência para a denúncia, ou seja, dois pesos e várias medidas diferentes.

Isso não é acidental, nem é um problema meramente de lei. Como tudo na sociedade, o Estado cria sua estrutura de acordo com a luta entre as classes. Como a burguesia controla o Estado, os poderes do Estado respondem a ela, como diz a internacional :  Crime de rico a lei cobre, O Estado esmaga o oprimido.

Mas se os poderes respondem a classe dominante, porque esta não usou o legislativo ou até o executivo para atacar o povo? Como dito a estrutura do Estado funciona de acordo com a luta de classes. O executivo na maior parte dos casos é eleito por voto direto majoritário, e o legislativo, ainda mais representativo, por voto proporcional. Então esses poderes estão mais sujeitos a pressão popular e de outros setores da sociedade. Quando a burguesia estava em ascensão, a nobreza feudal, então classe dominante usava o poder judiciário como a principal arma para garantir sua dominação.

O povo tem pouquíssimo acesso ao poder judiciário por alguns motivos : Os cargos não são eleitos, os juízes prestam concurso e são avaliados de maneira vaga, o mesmo para os promotores e outros cargos assim. O Supremo Tribunal Federal, órgão máximo do judiciário é indicado pelos outros poderes, o povo nada pode decidir em nenhum dos casos.

Com a decadência do regime político, a burguesia foi deturpando preceitos jurídicos criados durante as revoluções do século XVIII e XIX. Contra a direita feudal foram criados preceitos “democráticos”, a democracia para burguesia era a ideologia dessas revoluções, foram criadas ideias de tripartição de poderes, de homem um homem um voto, de que todos são iguais perante a lei, hoje, por conta da crise do capitalismo e portanto do domínio e da sociedade burguesa, todos esses pretextos estão ameaçados.

A burguesia foi instituindo aos poucos uma política da violação das liberdades individuais e coletivas que eram defendidas no iluminismo, foi deturpando a representação popular para manter o controle da sociedade, isso é sistêmico e pode ser visto em todo o lugar. Na Inglaterra, símbolo da democracia burguesa, o povo votou a saída da União Europeia e a justiça anulou a votação.

O caso brasileiro dá muitos exemplos do autoritarismo do judiciário. Para derrubar Dilma o imperialismo usou o poder judiciário para perseguir a oposição e para chantagear os outros poderes.

Uma verdadeira mudança para o poder judiciário

Não existe reforma para o poder judiciário, dentro do capitalismo, que vai transformá-lo de arma contra o operário, a um poder isento, justo e democrático. Mas existe sim um conjunto de propostas que podem colocar amarras à autocracia dos juízes e promotores. Elas não são revolucionárias, são democráticas, no sentido de democracia burguesa, seriam garantir apenas uma igualdade formal e direitos básicos, como que : Todo o poder emana do povo e em seu nome será exercido, como está colocado na Constituição Federal de 88.

O primeiro problema é : De onde emana o poder judiciário, claramente não do voto, afinal ninguém ali é eleito. É necessário eleição direta para todos os cargos do judiciário que exercem o poder sobre outras pessoas, juízes, promotores, desembargadores, ministros, todos os representantes deste poder tem que ser escolhidos pelo povo.

Quanto ao julgamento das pessoas, como o povo tem impor alguma barreira ao autoritarismo e a burguesia, quanto menos poder for dado a essa burocracia melhor. Deve ser defendido que os julgamentos sejam feitos com júri popular, que o povo julgue, tanto casos criminais, quanto cíveis. A eleição de juízes e promotores, e o júri popular, já existe de uma certa maneira nos EUA.

Um segundo ponto do julgamento, é a questão da lei. A lei tem que ser precisa, sem espaço para interpretações. O juiz da Lava-Jato, Sérgio Moro, disse que “direito não é matemática” justificando que a lei deve ser interpretada pelo magistrado. Apesar de, em casos pontuais, magistrados terem “interpretado” a favor do povo a lei, o fato é que na esmagadora maioria dos casos, a interpretação será a pior possível para o povo. O jurista e teórico do direito, Cesare Beccaria, autoridade iluminista sobre direito coloca a questão nos seguintes termos:

“Resulta ainda, dos princípios estabelecidos precedentemente, que os juízes dos crimes não podem ter o direito de interpretar as leis penais, pela razão mesma de que não são legisladores.”

Isso importante colocar, pois se a lei está aí para ser interpretada, não existe lei de fato, a mesma lei pode condenar um mesmo crime em um tribunal e inocenta-lo no próximo, um juiz aplicando a lei da maneira correta, pode ajudar um trabalhador, um segundo, inimigo do povo, pode atacá-lo duramente, é literalmente o reino do arbítrio.

“Se o juiz for constrangido a fazer um raciocínio a mais, ou se o fizer por conta própria, tudo se torna incerto e obscuro. Nada mais perigoso do que o axioma comum, de que é preciso consultar o espírito da lei. Adotar tal axioma é romper todos os diques e abandonar as leis à torrente das opiniões.”

Bons juristas, e bem intencionados, diriam que punir a interpretação levaria à perseguição dos profissionais que defendem o povo, e que a norma deveria ser a interpretação, e não a aplicação ao pé da letra daquilo que foi legislado. Isso tem duas faces. A primeira sendo que o povo perderia nessa guerra contra cada magistrado ou promotor, pois quem controla o regime, e portanto o aparato judicial, é a burguesia, mais vezes os juízes “interpretam” a lei contra o povo, do que contra o patrão, a lava-jato serve de exemplo. Mas como acabar com essa interpretação? Setores ligados a Renan Calheiros, Presidente do Senado, propoem uma lei que coíba o chamado “abuso de autoridade”, isso de nada ajuda o movimento operário. Confiar no regime político e no poder judiciário para se fiscalizarem vai apenas resultar em mais perseguição para os inimigos desse regime, a esquerda.

Realmente a interpretação é uma vantagem para os opressores, pois basta comprar um juiz que na disputa judicial o burguês tem toda a vantagem, mas a solução tem que ser outra da que foi proposta por esses setores.

As leis tem que ser claras, e sem espaço para interpretação, os juízes têm que ser  fiscalizados pelo povo, eleitos e com seus mandatos passíveis de cancelamento pelo povo, o júri popular também é uma arma contra o arbítrio. A classe operária tem muito mais dificuldades de enfrentar o Estado localmente, contra cada pequeno tirano local, se a lei é interpretada, o operário individual está a mercê do juiz individual, se a lei toma uma caráter claro, a luta toma um caráter claro, do povo contra os representantes do poder burguês, os deputados e presidentes e os próprios juízes, agora, de conjunto.

Para concluir, Beccaria coloca o problema da seguinte maneira, quanto à interpretação da lei

“Talvez esses inconvenientes passageiros obriguem o legislador a fazer, no texto equívoco de uma lei, correções necessárias e fáceis. Mas, seguindo a letra da lei, não se terá ao menos que temer esses raciocínios perniciosos, nem essa licença envenenada de tudo explicar de maneira arbitrária e muitas vezes com intenção venal.”

Essa reforma não tornará o judiciário o grande companheiro do trabalhador, o único companheiro do operário é o resto da sua classe e suas organizações, mas elas tornariam mais fácil combater o burguesia, para a solução desse problema, apenas uma luta frontal contra a fonte dessa opressão, a classe que oprime, a burguesia pode resolver o problema.

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