2020: the year of truth in Portuguese justice

Boaventura de Sousa Santos – Conceição Gomes 12/03/2020
The judiciary and the many magistrates who with high ethical and professional probity serve the Portuguese judicial system without exploiting it have demanding challenges ahead of them.

Tradotto da John Catalinotto
We are experiencing the most serious crisis of the Portuguese judicial system in the last four decades, since the Revolution of 25 April 1974 re-established democracy after 48 years of dictatorship. How this crisis is overcome will determine to a large extent the future of Portuguese democracy.
Until recently, Portugal was part of the range of countries where corruption in the judiciary was a non-issue. It is true that the surveys of Portuguese citizens’ perceptions of justice, carried out by the Permanent Observatory of Justice in 1993, 2001 and 2013, and by international bodies, such as the Flash Eurobarometer, Justice in EU, are consistent in terms of the low level of confidence in the work of the courts and the dissatisfaction of the Portuguese.
However, the accumulated weaknesses, which underlie the negative representations, mainly concern the costs and the slow pace of justice. Neither the public’s perceptions, nor the published opinion, revealed any particular concern with the independence of the courts, and even less with corruption in the judiciary.
We now know that this was an illusion. The recently known facts show that something is very rotten within the Portuguese judicial system, bringing to light judicial practices inadmissible in a democratic constitutional state. Judges of higher courts (two of them former presidents of the Lisbon Court of Appeal) are suspected of fraudulent distribution of cases, choosing judges according to special interests, abuse of power and violation of statutory rules when carrying out activities, at least in one assumedly well-paid case, which are forbidden to them.
The public position of both the president of the Superior Council of Magistracy (CSM), who considered the facts “to be of extreme gravity and calling into question one of the pillars of the rule of law,” and the president of the Union Association of Judges by demanding a “large-scale clean-up operation” show the embarrassment of the judiciary and an understanding of the gravity of the moment.
But to restore the social degradation of justice it is necessary that the powers, judicial and political, to the extent of their sphere of competence, develop a concerted program of rigorous action, acting on two distinct levels: individual (criminal and disciplinary action against suspected judges) and systemic (audit of the functioning of higher courts and implementation of anti-corruption preventive measures).
The seriousness of the situation does not admit maneuvering, cover-ups or rushing ahead. While ensuring all rights and guarantees of defense, the CSM and the agents responsible for the investigations must have the human and material resources to obtain a full explanation of the facts, quickly and effectively, in the knowledge that the citizens will not tolerate procedural delays or insufficiently grounded conclusions.
At the individual level, the Portuguese people have to be told what investigative, disciplinary or criminal proceedings have been initiated, against whom, what practices are in question and what deadlines have been set for their conclusion. At the systemic level, there must be an exhaustive and rigorous inquiry into the functioning of the higher courts, with the participation of elements external to the judiciary.
Such an inquiry must answer, publicly and in the short term, the following questions: what is the real scale of the problem? Is the emerging narrative of isolated cases confirmed or not? What judicial processes are involved and what is the impact of such practices? What were the facilitating or enabling factors (or the absence of them) of corrupt practices? Is the right to a collective trial truly assured in all appeal processes?
But the audit is not an end in itself. It should be seen as an instrument to determine individual and collective responsibilities and to develop a strategic agenda for the prevention of corruption, including the necessary legal, organizational, procedural or educational measures. It is important not to lose sight of the fact that, contrary to the prevailing message in the media, evidence of corrupt practices has not been detected by any internal control mechanism, but within a criminal process: the “Operation Lex.”
And it is paradoxical that those in charge of the judiciary are perplexed by statutory violations, while those implicated declare that their peers were widely aware of the parallel professional activity exercised for several years. This indicates the existence of fragile models of accountability and a judicial culture that is very tolerant of failures of ethics and integrity.
Two main ideas should guide that agenda. The first presupposes the adoption, independent of the legal qualification of the acts as criminal offences, of the broad concept of corruption proposed by the Consultative Council of European Judges (Opinion No. 21, 2018). According to this perspective, any dishonest, fraudulent or unethical conduct of a judge, with the objective of obtaining a benefit for himself or a third party, should be treated as corruption.
The second concerns the strengthening of the (internal and external) transparency and accountability mechanisms of the judiciary. It is recognized that judicial systems with a high degree of these mechanisms in place are the ones most protected from corrupt practices. When the problem hits the highest courts in their hearts, the governing bodies of the judiciary have a democratic obligation to promote a serious and truly consistent debate in this regard. It is now necessary to take measures to facilitate public scrutiny of higher court procedures and decisions.
The judiciary and the many magistrates who with high ethical and professional probity serve the Portuguese judicial system without exploiting it have demanding challenges ahead of them. It is easy to understand the danger to society and democracy if they are unable to overcome these challenges. We will know in the coming months whether 2020 was the year of all dangers or the year of restoring confidence in the Portuguese justice system.