Who is Manuela Silva Marques? What inspires and motivates her every day?
Exactly the person I was meant to be: a woman and a lawyer for over two decades.
In a society based on respect for the rule of law, I am motivated to be able to play an active role in the defence of rights and enforcing citizen rights, freedoms and guarantees, applying, with honesty, probity, rectitude, loyalty, courtesy and sincerity, all of the knowledge and expertise acquired over time to the search for better interpretations and applications of the laws. In short, I fight for the better administration of justice, for a more just society.
I adopt my enjoyment and commitment to the profession in a consciously soft style. However, taking into account how the provision of legal services has evolved extremely dynamically with the phenomena of globalisation and technological advances, we must accept the challenges of the media and assume public and professional behaviours as an instrument and link between the legal culture and the community. Lawyers should not only be pleaders of causes and advisors to their clients, they should assume their role as essential to guaranteeing the Democratic State of Law.
There are increasingly more successful cases of businesswomen and entrepreneurs. However, in your opinion, is the path for women to reach senior positions still quite difficult?
History, as we know, is written in the masculine. But history also tells us, for example, that women in ancient Greece, while not even having the status of citizens and forbidden from participating in public debates or political decisions and dependent on their fathers and husbands, were precisely the persons who held the power to influence them.
Since then and up to the present day, the historical evolution of women’s rights reveals a remarkable trajectory. If we look at the current data on the number of women on university campuses today, it is not difficult to make a very favourable prediction about the rise and success of the role and power of women in society.
The construction of an egalitarian society necessarily implies a change in mentalities in which the law plays a fundamental role. As a recent example, we have Law no. 60/2018, of 21 August, which came into force on 21 February, aiming to bring about effective change ending with wage asymmetries between women and men and approving measures to promote equal pay for equal work or work of equal value.
At the level of the legal profession, this is in itself a competitive ecosystem, which has always been predominantly male. Women holding law degrees were only allowed to “exercise the profession of lawyer” just over 100 years ago (by Decree No. 4676 promulgated on 19 July 1918). Curiously, the fact is the universe of justice is now overwhelmingly female as reflected in the number of female judges, prosecutors, ministers and justice agents. In other words, we have a justice system run by the labour of women, a justice system provided with a different emotional competence, resilience and aptitude for the so-called work life balance.
Is this a reality for you? Have you faced obstacles during your professional career due to being a woman?
Not because I am a woman. It is society itself that is responsible for the recognition of professionalism, regardless of gender.
Beyond technical skills, there are qualities that are essential, which determine the status of lawyers and the affirmation of their freedom and independence. In my opinion, the appeal is not about equality but rather calling for the set of ethical-deontological values that clearly distinguish this profession from others, ensuring the dignity and prestige of lawyers whether men or women.
Manuela Silva Marques is Of Counsel at Ilime Portela & Associados and a lawyer specialising in Tax Law and Tax Criminal Law. Currently, what issues or themes are of real concern to lawyers in this field of law?
In these fields of law, the counterparty is necessarily the state. The legality and enforceability of acts of public administration or the merits of public accusations are discussed and judged, and the state in turn is represented in court by the Representation of the Public Treasury in tax courts and by the Public Prosecutor’s Office in administrative courts and criminal courts. Which brings us to the level of the necessary articulation, not always easy, between the defence of citizen rights and the pursuit of the public interest.
Most cases involve conflict between the defence of private interests and the defence of the state’s property interests, whereby all actions must necessarily be guided by criteria of legality, impartiality and objectivity, following the dictates of good faith, under penalty of autonomous infringement of the law and the incursion of the state in extra-contractual civil liabilities. In fact, the principle of good faith is not limited to acts practiced in the exercise of discretionary powers and the scope for its application in cases of acts practiced in the exercise of binding powers must be raised.
For these reasons, the issues or subjects of real concern relate to violations of the right of defence and the principle of the presumption of innocence as well as violations of judicial secrecy.
The current phenomenon of the need for budgetary restraint and revenue collection determines the utmost alertness in safeguarding the guarantees of defence and a greater focus on the principles of the protection of confidence and of a fair and equitable process.
This cannot accept that the appreciation of the judgement is merely a technical question of the judge. It is necessary to capture the real meaning and scope of the normative texts in subsuming the facts to the norms, under penalty of being faced with the instrumentalisation of law and seeing our courts converted into mere budgetary policy instruments.
In other words, this requires a spherical vision of reality and a systemic view of the process adjusted to the social and economic reality. Analysis of the political, economic and social context experienced at the time of the facts under discussion is essential to frame the conduct in court.
The paradigm hitherto observed, linked to the inflexible requirements of tax obligations, must be made more flexible. The consequences of the difficulties faced by citizens must be foreseen.
The circumstances surrounding the specific case, the reality and organisational structure of the Portuguese business context must be taken into account. In addition, and particularly within the specific scope of tax law and tax criminal law, the fact that we are facing a tax administration that is inactive and incapable of collecting debts from their respective debtors, allowing them to appeal and giving rise to constant and successive criminal charges, which leads to the deficient functioning of the justice system. Taking into account the framework of occupational and white collar criminality, this reality has an extremely negative impact on citizens who, in general, maintain proper levels of social integration and past without criminal blemishes, see their lives become completely impossible as a consequence of procedural “salami-slicing”.
The question must be raised whether legal hermeneutics, the criteria of imputation and legality should not be re-evaluated, whether we should not move away from a Manichaean conception, where there are only good and bad guys. It is offensive to the dignity of the human being that this should not be the case. It is an affront to human dignity that this should not be the case. In fact, our Fundamental Law is humanitarian in nature, a text protecting the principles of solidarity (between the state and its citizens), the dignity of the human person (which prevents citizens from being subjected to realities that determine a life below the existential minimum) and of the ability to pay (in the sense that taxes can only be demanded from taxpayers according to the strict terms of their economic condition). As Article 266, paragraph 2 of the Constitution of the Portuguese Republic states: “Administrative bodies and agents are subject to the Constitution and the law and must act, in the exercise of their functions, with respect for the principles of equality, proportionality, justice and impartiality”. Only with respect for these principles will the material truth be achieved and justice served.
What portrait can we draw of the legal profession in Portugal? How do you anticipate 2019 in terms of challenges and opportunities?
We have a legal practice that, in search of excellence, should design a sustainable action plan, addressing the problem of the need to measure effectiveness and evaluate the chances of success. In other words, the strategic conception and positioning are fundamental. Among many other possible questions, the question remains, which customers should we focus on and why?
in Pontos de Vista
19th March 2019