the judicial solution

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By FÁBIO KONDER COMPARATO*

Will the Judiciary be capable of taking the necessary and urgent constitutional measures to rid us of this calamitous mismanagement?

The facts

On several occasions, the current President of the Republic has participated in public acts, convened with the aim of overthrowing the current constitutional order, in order to institute, in its place, an authoritarian and anti-democratic political regime. In a ministerial meeting held at the Planalto Palace, on April 22 of the current year, whose video was released by decision of Minister Celso de Mello of the Federal Supreme Court, our political institutions were vilified by the Chief Executive and some of his Ministers, in amid profanity and turpiloquies of all sorts.

On the other hand, amid the profound suffering of all sorts, caused by the coronavirus pandemic, the federal government proves to be practically unable to face this terrible disease, with the current Head of State constantly expressing his lack of concern about it. Now, according to studies carried out in 48 countries by the Imperial College from London, the rate of contagion of the pandemic in Brazil is the highest in the world.

 An open-door crime

It is indisputable that such acts and omissions characterize crimes of various kinds.

First of all, crimes of responsibility, as provided for in the Federal Constitution (arts. 85 and 86), as such acts violate the Federal Constitution and especially against “the free exercise of the Legislative Power, the Judiciary Power, the Public Ministry and the Constitutional powers of the units of the Federation”; as well as against “the exercise of political, individual and social rights” (art. 86, items II and III). Such crimes, as is known, were defined in Law nº 1.079, of April 10, 1950.

In addition, the same acts also typify, in theory, crimes against national security, notably the one defined in art. 23 of Law No. 7.170, of December 14, 1983, that is, “incite: I – to subvert the political or social order; II – animosity between the Armed Forces or between them and social classes or civil institutions; III – the struggle with violence between social classes; IV – the commission of any of the crimes provided for in this Law”.

As for crimes of responsibility, however, one cannot fail to consider that the respective process is not judicial but parliamentary. That is, it starts before the Chamber of Deputies, which admits the accusation by the vote of two thirds of its members, and ends in the Federal Senate, which is the only body competent to pass judgment. It is, therefore, a procedure of a clearly political nature, in which the formal interpretation of constitutional dictates may give way to purely personal or party-political interests.

The prosecution of crimes against national security is carried out before the Military Justice, except, however, the original jurisdiction of the Federal Supreme Court, in the cases provided for in the Constitution (art. 102, item I, paragraphs b e c). It was precisely for this reason, apparently, that the Attorney General of the Republic asked the Supreme Court to open an investigation to “investigate allegedly criminal facts”, which occurred during the demonstration against the National Congress and the Federal Supreme Court, on the day April 20 in Brasilia, as the President of the Republic and several members of the National Congress participated.

Filing of Claim for Non-compliance with Fundamental Precept No. 686

It happens, however, that in addition to criminal proceedings, there is also the possibility of proposing an Argument of Non-compliance with a Fundamental Precept before the Federal Supreme Court, based on art. 102, § 1 of the Federal Constitution, a device regulated by Law No. 9.882, of December 3, 1999.

Firstly, because such a lawsuit is not litigious, and therefore there is no confrontation between plaintiffs and defendants. This is a measure proposed with the objective of “avoiding or repairing damage to a fundamental precept, resulting from an act of the Public Power” (Law nº 9.882/1999, art. 1).

Secondly, its procedure, in principle, is faster than that of a criminal proceeding, and there is even the possibility of the rapporteur of the case granting the injunction, “in case of extreme urgency or danger of serious injury, or even, in recess period, ad referendum of the Full Court” (Law nº 9.882, art. 5º, § 1º).

Thirdly, because the final decision “will be effective against all and binding effect in relation to the other organs of the Public Power” (Law nº 9.882, art. 10, paragraph 3).

For these reasons, the PSOL decided to file ADPF nº 686, with Minister Rosa Weber being appointed as rapporteur. The object of the action is the recognition that the current President of the Republic openly failed to comply with two fundamental principles of our constitutional organization, namely, the principle of the rule of law, inscribed in art. 1 of the Federal Constitution and the principle that health is everyone's right and the State's duty (art. 196 of the Magna Carta).

Concomitantly, ADPF nº 686 requires, under the terms of art. 5, § 1, of Law No. 9.882/1999, the granting of precautionary measures, for the immediate protection of the Brazilian people against serious damage that is difficult to repair. As I write these lines, however, there has been no decision regarding this precautionary measure.

I dare say that the unfolding of this lawsuit will give a safe prognosis about the political future of our country. Will the Judiciary be capable of taking the necessary and urgent constitutional measures to rid us of this calamitous mismanagement?

* Fabio Konder Comparato Professor Emeritus at the Faculty of Law of the University of São Paulo, Doctor Honoris Causa of the University of Coimbra.

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