The Household Mask – The Fundamental Right to the Access to Justice and to Online Court Sessions in times of COVID-19

mosaics of the villa romana del casale

 by Marcílio Franca, Professor at Federal University of Paraíba (Brazil)
 and Inês Virgínia Prado Soares, Federal Judge (Brazil)

The application of contention measures and social isolation due to COVID-19 has caused a great impact on the operation of the whole justice system – in courtrooms, law firms etc. in the world and in Brazil alike. Brazil’s National Council of Justice (Conselho Nacional de Justiça – CNJ) has been working from home since March 12 as a way to administer justice during the most critical period of the pandemic. On March 26, The National Council of the Prosecution Office (Conselho Nacional do Ministério Público – CNMP) determined the uniformization of the measures to prevent Coronavirus at all branches of the Prosecution Office in Brazil, making remote work and conference calls mandatory.

In turn, Brazil’s highest Court, the Supreme Federal Court (Supremo Tribunal Federal – STF) published Resolution 672/2020 on March 27 to allow the use of conference calls on its trial sessions. Such document, as those issued by CNJ and CNMP, does not detail the formalities to be respected, which intuitively leads us to believe things must be done as they always have been, including themes such as language and the attire.
However, on one of the very first sessions conducted by the STF, the polo shirt worn by Justice Marco Aurélio raised eyebrows. He alleged he was wearing more informal clothes and chose not to wear his gown because “at home, there is no reason to wear a gown. There is nothing in the liturgy to determine it must be worn”.

Beyond aesthetics, the controversy over the outfit takes on semiotic-anthropological tones since, first, law has a compelling symbolical component; second, someone’s clothing is always a very eloquent language; and, third, jurisdiction-turned-virtual has dissolved the illuminist separation between “home and the street” or “the garden and the park”, dialectics of which anthropologist Roberto da Matta (1984) and sociologist Nelson Saldanha (1983) knowingly spoke.

The freedom of expression of the actors of the justice system to wear and talk is of utmost importance but cannot be considered an absolute value and thus requires that it be weighed against other values and rights of equal status. This way, the dress code and language (both verbal and non-verbal) of the legal world are guided by limits and formalities, which have not been left aside in times of online sessions and work from home.

Practice has shown that the change in the way justice actors work due to the COVID-19 crisis has added new colors to the sacred “right to be let alone”, an expression taken as everyone’s right to privacy in public spaces. In other words: the prerogative of putting a household mask on public personae. The need to communicate through video conferencing, streamed on social networks with unlimited access to online viewers has created a new challenge: transposing (or suiting?) the values and behaviors from the real to the virtual world.

The news is not only transposing apparel-conveyed values or creeds between public and private spaces. This also happens in times of normality, however, with the opposite sign: the challenge for some minority groups is to be able to dress in public spaces according to their religion. In Europe, since 2010, Belgium and France have promulgated laws that forbid the use of Islamic face-hiding veils under penalty of a fine. Despite the struggle of human rights groups, the European Court of Human Rights has validated these laws. The same prohibition exists in Denmark (as of 2018), Austria (2017), and Germany (2017).

Assessing a piece of clothing or social action reflects a specific moment in time and sociocultural values. It is also connected to the physical place that accepts the use of such clothes. Up to 1997, women could not enter the STF courtroom in pants and the only transparency in women’s clothes in forums and courtrooms was that of goddess Themis, whereas the 4th-century Roman mosaic found at Villa Romana del Casale, Sicily, had immortalized female figures wearing bikinis with no restriction (https://bit.ly/3czCHH6 ). It is always possible to lend new meanings to old signs.

Back in time, just like academic, religious and military clothes, courtroom attire was designed to convey discipline, define hierarchy, and reflect the respect of a gentleman and the dignity of a career. In his excellent “Les Habits du Pouvoir”, Jacques Boedels recounts that the French Revolution sought to eliminate the highbrow concept of courtroom clothes. In a petition addressed to the revolutionary Constitution’s Committee on August 13, 1790, a group of citizens claimed that “those upon whom the function of judging falls should not display any distinctive marks other than their virtues, talent and integrity”. A similar revolution would take place in French universities in May 1969.

The eloquent request prospered and the old legal attire was abolished by the Decree of Judicial Organization dated August 25 and September 02, 1790. The revolutionary break lasted a dozen years. On December 23, 1802, the attire was reinstated. The traditional juridical clothing of robes or gowns, hats and wigs in some jurisdictions, were supposed to now convey the impersonality of the judge and equal distance from the parties. The face of the State was the only one to be recognized.

Likewise, forensic tailoring substituted, decade after decade, the silk and fine fabric, “su misura”, with synthetic materials which are more practical and comfortable, machine washable and prêt-à-porter.

In 1966, Justice Gonçalves de Oliveira, of Brazil’s Supreme Federal Court, overruled the habeas corpus of an attorney from the Brazilian state of Goiás who wished to enter and walk the premises of his state’s Court of Justice without a jacket and a tie which are required by the regulations of that state court. The Justice denied the order and stated: “The patient is an attorney, who must abide by the decision of the president of the court as to defend the austerity of the courthouse”.

About four years later, in 2008, during the trial of the case Raposa Serra do Sol, the clothing rules of the supreme court were stretched to allow Brazilian tribe Indians to enter the STF courtroom in their typical clothes. There is no need to comment on how absurd it would have been to force those individuals to wear a suit and tie to attend the trial of the emblematic case that involved not only the life of their people in a certain territory, but the right to live according to their beliefs, customs and culture. By dressing as they always have, those Indians symbolically took along some of their own territory, their land, and place to the STF.

The speedy status change from “at home” to “@home” has created funny flashes in the past few weeks, not only at the Judiciary Power but also in big law firms and even among TV announcers and guests. In this new circumstance, the eye that never shuts and which sees all is not the eye of the Law anymore, rather, the all-seeing eye is out on the streets connecting the visual and the virtual domains and approaching the far and the near. Roberto da Matta was right by stating that “you cannot mix the space of the street with that of home without creating some serious form of confusion or conflict”.

Thus, one of the big risks of using information technologies is obliterating the frontier between the public and private realms, because virtual judgement sessions are not completely public activities since the judges enjoy a privacy status, especially because they are “deterritorialized”, in a judicial non-place which is usually a private place, someone’s home or private office.

The doubt remains as to whether the virtual courtrooms’ dress code will quickly change not only the way a magistrate dresses in public but also society’s idealization of the judge. “Festina lente”, as the old Latin saying maintained. This difficult and outlandish situation reminds us of Brazilian composer Antonio Carlos Belchior:

“You don’t feel or see it
But I must tell you, my friend
That a new change will soon take place
And what was once young and new
Is now old, and we all need to rejuvenate”

“Você não sente nem vê
Mas eu não posso deixar de dizer, meu amigo
Que uma nova mudança em breve vai acontecer
E o que há algum tempo era jovem novo
Hoje é antigo, e precisamos todos rejuvenescer”

One final note, as a post scriptum: In Brazil, Law no. 13.979 of February 06, 2020 inaugurated the measures to tackle COVID-19. Since then, a significant set of national regulations has been published, known as “COVID Law”, set to regulate the juridical situations of both public and private law generated during the pandemic. The Brazilian regulations of COVID Law were compiled and may be found at https://bit.ly/3cc9PVD. Towards the access to justice, and to prevent rights from perishing, said collection is complemented by a set of regulations assembled by the National Council of Justice at https://bit.ly/3babnxY. During this pandemic, COVID Law is obviously not a household creation. We may as well talk about “Comparative COVID Law”, whose studies are featured at https://bit.ly/3c8bfQY and https://bit.ly/2WDAKTF.

Pictures credits: Mosaics of the Villa Romana del Casale by UNESCO.

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