If he was Brazilian, former president of South Africa, imprisoned for contempt of justice, he would be free – 07/14/21 – World

If Jacob Zuma, former president of South Africa, were Brazilian, he would most likely respond to the various corruption charges from which he is released. After ignoring summons and missing several hearings in the criminal proceedings to which he is responding, he was sentenced to 15 months in prison for “lack of respect for justice”, a crime not covered by Brazilian law.

In the decision that determined Zuma’s detention, Judge Sisi Khampepe of the Constitutional Court, South Africa’s highest court, lists some of the episodes in which the former president was summoned to testify and assist in the inquiries, but did not attend.

Zuma, in response to subpoenas and even in the face of impending contempt of court indictment, issued statements claiming he was the victim of a politically motivated witch hunt and unfair treatment by the courts. For Khampepe, however, the statements characterized an “improper and irresponsible” attempt to “intentionally undermine the law”.

“Zuma had every right and every chance to defend his rights, but he chose, again and again, to publicly reject and totally defame the judiciary,” the magistrate wrote in the 127-page decision, adding that the Constitutional Court had done everything to safeguard the right to defense of the accused, despite his “insolence”. “His attempts to generate public sympathy through such allegations are unreasonable. They are an insult to the constitutional dispensation for which so many women and men have fought and lost their lives,” Khampepe continued.

But Zuma’s speech found support among some South Africans who, since last Friday, have taken to the streets in political protests against the arrest of the former president. However, the acts were quickly overtaken by a wave of violence and shoplifting that left at least 72 dead.

If subjected to the norms of Brazilian law, Zuma could witness the chaos that has unfolded in the largest cities of South Africa, in complete freedom, as there is no crime in the law. Brazilian characterized as “lack of respect for justice”. One of the main reasons is that the legal system in South Africa is fundamentally different from that in force in Brazil, explains Maristela Basso, professor of international law at the University of São Paulo (USP).

According to the expert, the Brazilian model is known as “civil law”, also known as Romano-German law. It is the same system in force in continental Europe and throughout Latin America.

“Civil law is based on codified law, the law written in codes, so that the individual knows exactly what he can and cannot do. Thus, judges fundamentally assess and take into account the law, the civil law system, ”he explains. Basso. South Africa, on the other hand, follows the model of “common law”, also known as customary law. This is the system that exists in countries colonized by the British, such as South Africa itself, as well as India, part of Canada and almost all of the United States – with the exception of Louisiana, where there is a strong French influence, which follows a hybrid model.

The “common law” differs from Roman law because it gives the judge the possibility of pronouncing his decisions taking more into account the rule of jurisprudence than of the law itself.

“Of course, in this judgment there is law and, in these countries, there are codes and constitutions, but let’s say that the judge has a greater freedom to judge with his convictions and, fundamentally, but not exclusively, taking into account the case law “, says the professor.

Despite the differences between legal systems, a crime like the one committed by Zuma in South Africa could be included in other criminal typifications of Brazilian law, such as the crime of “disrespecting authority”, in the event of offense or lack of respect towards a public official in the exercise of his function.

In Brazil, on the other hand, there is no possibility of “disrespecting Justice”, while one of the member powers of the State, alongside the Legislature and the Executive, explains Marco Aurélio Florêncio, professor. of Criminal Law at the Universidade Presbiteriana Mackenzie. “The Judiciary has no subjective honor, that is to say, it cannot be directly offended. It is the same rule that applies to legal persons who cannot be victims of the crime. injury, for example “, specifies the expert.

Not responding to a court summons, as Zuma did in South Africa, is relatively common practice in Brazil, USP Basso says. The professor cites as examples cases where those called to testify in Operation Lava Jato simply did not do so, which on several occasions led to acts of coercive conduct. As an investigator, Zuma would not commit a crime in Brazil if he did not comply with a subpoena, but his absence could have implications for his defense, since the case could be tried in absentia. that is, without the presence of the accused.

Florêncio, from Mackenzie, also highlights a scenario provided for by the American Convention on Human Rights, to which Brazil has been a signatory since 1992. “In this treaty, article 8 says that the accused has the right to right not to be compelled to testify against himself or to plead guilty. The accused has the right not to produce evidence against him, and he can even remain silent, ”he explains.

Araken de Assis, retired judge of the Court of Justice of Rio Grande do Sul and professor emeritus at the Pontifical Catholic University of the same state, studied the possibility of characterizing the “lack of respect for justice” in Brazilian law in the same mold as in countries where the “common” law. In an article on the subject, he concluded that “it seems improbable to recognize the principle of authority in the judge, entrusting his human fallibility with the serious power to induce the behavior of litigants to subordination”, that is to say -to say that it is not a good idea to give more power to those who are prone to errors and excesses.

For Basso, the lawyer is right. “The extension of interpretations opens a gap for the abusive exercise of authority, whether by the delegate, the judge or any other public official,” he said. “We have to be very careful in Brazil with the possibility of extending the law or understanding [sobre o desacato à Justiça], because there is this tendency to abuse authority, power and prerogatives. “

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