A praça, o claustro, a corte: a liberdade de expressão judicial no direito brasileiro

Abstract

How free are Brazilian judges to express their thoughts and opinions in public? The purpose of this thesis is to address this question. There are three main arguments. First, freedom of expression is a complex right that aims to protect both the individual element and the intersubjective dimension of human communication – a right whose existence is justified by multiple, persuasive, and complementary reasons. Second, the integrity of the contribution the Judiciary has to offer to democratic governance is infringed whenever a judge expresses an opinion outside the deliberative-decision-making process in respect of a matter over which he was, will be or may be called upon to exercise jurisdiction, except when his speech is protected by academic freedom. The obligation is more intense the higher the position occupied by the judge in the structure of the judicial branch. And, third, although judicial indiscretion is a serious problem, particularly when the indiscreet judge occupies a superior jurisdictional position, a judge who improperly expresses his thoughts in public should preferably be disqualified from deciding on the issues about which he has spoken. The imposition of disciplinary proceedings and penalties is, as a rule, constitutionally inappropriate, since any institutional response to an exaggeratedly politicized judicial speech results, due to the denial of the impugned political discourse, in another act of exaggerated politicization. The second and third arguments, which consist in the heart of the thesis, are grounded on the idea, selected as the theoretical framework of the research, that separation of powers means more than a division of tight nuclei of power or a mechanism of mutual control based on systemic checks and balances, because it also presupposes the existence of a specific integrity to be protected in the exercise of each decision-making institution, as well as an autonomous value in the construction of an articulated democratic governance among such institutions.