The order by which the Supreme Court ratified this Monday that the embezzlements committed by the leaders of the process are not amnestiable represents a real shame for the government and its partners in the face of accusations that the judges are violate the will of the legislator, a speech which, moreover, has also been seen with the law of “only yes means yes”. The procedural court insists that it is the norm itself which excludes forgiveness for this crime and that its resolutions are not inspired by “pure voluntarism”. He says it like this:
—“The interpretation of the precepts which led the Chamber to exclude from the amnesty the offense of embezzlement requires paying attention not only to what the applicants now say that the legislator wanted to amnesty, but also to what the legal norm effectively proclaims through the ” which seeks to affirm the forgiveness of the condemned.
— “Between the political will which determines a legislative change and the normative declarations with which this change is supposed to take place, a logical and coherent link is essential and conforms to the elementary requirements of legal technique.”
— “To ask this House to interpret the amnesty law without any other reference than that provided for by the will of the legislator is to ask that we renounce our function as judges. Political will is not enough to amnesty an event. It is necessary that the legal text which translates this ideology defines its objective scope with the enhanced precision which is required of a norm which will produce such radical effects on the structural principles of the penal process.
— “The judicial application of the norm imposes a discursive debate which cannot be resolved by the appellants’ assertion that we limit our task to making the will of the legislator a reality, that is to say, such as they interpret and understand this will in accordance with the political discourse – and not the normative statements – with which the amnesty law was explained and justified.
—“Laws cannot be interpreted as a verbal mandate addressed by political power to judges. Legal texts, just like written texts, contain a mandate that is inserted into their own letter. Of the will of the legislator, all that remains is the language and legal concepts through which he wanted to make his point concrete.
— “The rule of law can only be guaranteed once the published legal text is subject to verified judicial interpretation in accordance with the hermeneutical guidelines that define the canon of rationality imposed by the constitutional duty of motivation. »
— “The requirement for rationality of a judicial decision cannot be linked to the false need for the argumentative processes which serve as support to be constructed exclusively from political and institutional declarations which, at the time of their processing, anticipated the aim of the decision. ‘amnesty.
—“The image of the judge as a “mute mouth” who must limit his function to proclaiming the legal consequences which result from the literality of the norm represents an outdated image that the appellants now present as the democratic ideal of respectful justice of legislative power. power” .
—“Given what the appellants argue, it is the literal nature of the amnesty law, integrated in accordance with the constitutional canon of interpretation of criminal norms (art. 3.1 of the Civil Code), which leads to the exclusion of the crime. embezzlement of public funds.
