Judicialization of politics leads Brazil to a dilemma – 07/19/2023 – José Manuel Diogo

In a democracy, the Judiciary, Executive and Legislative Powers must be balanced. When one or two of these Powers weaken, the third tends to predominate, and thus democracy is at risk. The exaltation of one leads to the exposure of the others, weakening the structure as a whole.

Brazil is currently experiencing a phase of intense political fragmentation. With a Congress made up of numerous parties and an Executive with significant articulation challenges, the Judiciary, especially the STF, has stood out for intervening in the solution of critical problems that should be solved by its peers.

This scenario of “judicialization of politics” will be a consequence of the weakness of the other Powers, but after a certain point it may also be the cause. When the Legislature and the Executive prove incapable of acting effectively and reaching consensus, the responsibility (and visibility) of the Judiciary increases.

We must remember that the judiciary is, by nature, a reactive institution, not a proactive one. Its main function is to interpret the laws, not create them, although current demands may point in the opposite direction.

The expanded role of the judiciary, especially the STF, presents considerable challenges. The need to intervene in matters usually administered by the Executive or Legislative branches forces judges to act in a more visible way, exposing their decisions to intense scrutiny.

This brings us to a dilemma. Judges have to maintain the integrity of the Rule of Law and enforce the Constitution if the other Powers do not. But they run the risk of being seen as “justice fighters”, going beyond their institutional limits and assuming a role that traditionally does not belong to them.

If the Judiciary appears to have excess power, democracy may weaken, but it must be remembered that this “combative democracy” has become indispensable, because recently elements of the Executive Power have directly threatened democracy itself, forcing the Judiciary to leave in its defense.

In a healthy democracy, harmony between constitutional powers is crucial, and everyone must be aware of this challenge, acting with transparency, caution and respect for constitutional limits. In parallel, the Executive and Legislative Powers must strive to fulfill their responsibilities.

Citizens have a crucial role in this context. They must exercise their democratic rights, stay informed and hold their leaders accountable. Democracy is a collective effort, and its preservation requires the participation of all sectors of society. By ignoring this, public servants, regardless of their decision-making power, prevent Brazil from becoming stronger on the international scene.

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