In defense of the rule of law

Clara Figueiredo, series_ Brasília_ fungi and simulacra, national congress, 2018
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By TARSUS GENUS*

The STF said enough to totalitarian roguery in the case of deputy Daniel Silveira

I find two friends in one article. Baltazar Garzón quotes Boaventura de Souza's mention, in a text of his writing, that the USA “was born from the violent act of killing the Indians”. Garzón himself later adds in his article “Betrayal of Democracy”, that a large part of Trump’s voters are victims of globalization: “without a reconversion process that left them helpless, thus being easy prey of this neo-fascism, in which black or Latino minorities were not necessary, but – on the contrary – are objects of revulsion”.

Another friend, Paulo Sergio Pinheiro, in a recent article shows “The new extremism of the Right” and asserts: fascism “is not an ideological or psychological problem, but an extremely real and political problem” (...) because “its fallacious and lying substance ( is) that compels that movement to operate through ideological means.

And so Humanity walks, on the back of the social, environmental, moral and political disaster, which recovers the monsters and releases the demons that were only archived in the labyrinths of political liberalism emptied of principles. To understand the crisis, we have to leave the normal menu of its analyzes and seek help in Bloch, Benjamin, Horkheimer and Gramsci, laying bare ethics, cultures, new moralities and totalitarian oppressions, in the era of the predominance of financial capital over our alienated destinies. Hunger and plague, racism and misogyny, deaths and radical environmental decline, this is the sick scenario that subdues and depresses us.

Its meaning is war and its intimate essence is the trivialization of death and the universal insensitivity towards it. DCM publishes a text by Kiko Nogueira on 18.01.21 in which he informs that a young woman “took the microphone last Saturday at a neo-Nazi demonstration, called by the Patriotic Youth in Madrid and became an instant celebrity”. Isabel Peralta, the young fascist publicly said: “the enemy will always be the same, although with different masks, the Jew … (he) is to blame.” Three hundred people marched through the streets of Madrid celebrating the Blue Division, whose Spanish volunteers participated in the 2nd War, under the command of Hitler.

An example of the roots of this political-moral scenario facilitated by the relaxation of fundamental rights and civil and political guarantees: on June 24, 1922, two extreme right-wing German Army officers assassinated the Minister of Foreign Affairs of the Republic of Weimar, Walter Rathenau. A Jew born in Germany, the Minister was especially hated by the “lumpens” of the fascist militias of the time, both because he was Jewish – descending from a family of wealthy industrialists – and because he was the great articulator of the Treaty of Rapallo.

Rathenau was part of the Government of Joseph Wirth, Chancellor of the Republic, originally from the left wing of the “Center Party” who, as ruler of states in crisis, said – immediately – when he was informed of the assassination of his Minister: “the enemy is from the right !” By the Treaty, Germany and Russia, two great losers of the 1st War, gave up the mutual financial reparations arising from the damages of the War and freely re-established their economic and diplomatic relations.

At the time of this death, there was still time for – through the Judiciary and other State apparatuses – the Weimar democracy to react with force against the main head of Hydra in Germany. But it was “a difficult choice”, social democracy was infested with internationalist “Jews”, who did not want War, but Justice, cultural and religious rights and some, socialism. There the conception of the difficult choice gave birth to Hitler, here it is giving birth to Bolsonaro.

The content of the Treaty of Rapallo, however, both irritated the winners of the War and provoked a violent hatred in the extreme right of the country, in whose soil the fascist militias (“freikorps”) already swarmed, anticipating the climate of violence that would favor the rise from Hitler. The political situation, in the early 30s, already provoked a fearful leniency in German judges, most of whom were gradually assimilated by Nazi dogmatics, with messages that defended a “pure” Germany of Jews (purged of democrats in general, of communists, gypsies , homosexuals, social democrats) as well as proposing a warlike reorganization of the nation, so that it would dominate its “vital spaces”, dear to the ideology of national-fascism.

Bolsonaro dominated here the “vital spaces” of Brazilian democracy when, in his vote for the “impeachment” of President Dilma, he invaded and controlled the Judiciary and the Public Ministry, relegating them to inertia, assaulted the Parliament paralyzed by his own villainy and destroyed the democratic imaginary, transforming torture into the final and quick solution to all liberal crises.

In 2016, pressed to respond to the criticism I received when I pointed out in 2013 the emergence of a “new type” fascism in Brazil, rocked by the June Movements of that year, I wrote a text published in the “Revista de Derecho Social Latinoamérica””, on the initiative of another dear friend, Antonio Baylos. There I maintained: “For Alexy, as fundamental rights must be considered “principles”, which in the practical life of the Courts can collide, it is necessary to practice a “weighting”, to verify which principle (which is identified as “fundamental right) is applicable to the concrete situation that the Courts face.”

In the case of the arrest of Deputy Daniel Silveira, determined by Minister Alexandre de Moraes, in which the criminal not only asked for the dictatorship but also physically threatened and radically attacked, morally, the Ministers of the Supreme Court, in weighing the values ​​of that conflict, the STF understood that the superior value, on which the preservation of all others depended, was the defense of the rule of law and the harmonious functioning of its powers. Brave and dignified decision that could initiate the blockade, in the Courts of the Republic, of the fascist adventure in Brazil, which began with the supposed “exemption” of the Judiciary in relation to the coup against the legitimate mandate of President Dilma.

The internal transition of the Judiciary – within the German liberal-democratic regime – to the adherence to the destruction of guarantees and freedoms, as occurred with the subsumption of Judges to Nazi-fascism, has important examples of behavior by Magistrates. Among them, it is possible to collect episodes of dignity and self-respect, but also (and mainly) of moral misery and canine obedience to the powerful ones. Perhaps no “transition” is as exemplary significant as the trajectory of Judge Edwin Bumke (1874-1945), who several times complained and threatened to “resign”, when the barbaric actions of the murderers of dissidents – Jews and non-Jews—news that did not prevent Burke from remaining faithful, to the end, in his betrayal of democracy.

I refer above to the term “transition”, because regime changes that imply legal transformations in the State (whether through the interpretation of “old” laws or through a new system of norms imposed by the winner of the political conflict) occur – mainly – in two ways: either as an accumulation of “molecular changes”, induced by the group that seeks to be “leading”; or as a sudden rupture, as in a classic coup d'état, where force predominates to later install, if it can, its new hegemony.

The two processes awaken, in different ways – in their evolution or in their violent rupture – movements within the Judiciary (of resistance or adherence to the new regime) in which the pressure of force and the stimulus to consensus succeed each other. In the rupture, coercion predominates, but in the “molecular accumulation”, the ideology formed by a manipulated consensus, which is backed by force, acquires supremacy.

Ambitious, intelligent – ​​rich and conservative – Judge Bumke makes his way from his appointment to the Provincial Court of Essen, passing through the exercise of jurisdiction in the Third Prussian Penal Chamber in 1932, in which he makes a decision that “legalizes” – little before Hitler came to power – the forced removal of the elected Social Democratic government, arbitrarily ordered by Chancellor Von Papen. Bumke's career prospered from Essen, as Magistrate of a State of Law in crisis, until his appointment to the Supreme Court of the Reich, in 1939. On April 20, 1945, however, when the American army entered Leipizg, the Judge Bumke, who had been cowardly and subservient to Nazism, commits suicide.

Most of the German judiciary during Hitler's rise to Chancellor status in 1939 underwent a series of mutations, some overt, others hidden. They give new meaning to the concept of “order”, until the moment when, freed from any constitutional ties (which were “derogated” by the practical action of the Nazi policy), Hitler installs the Total State and starts dictating the law, through the “discourse ” that draws a new order composed by the dictator and his hegemonic group.

The concept of “order”, which was based on normatively expressed values ​​– with stability and predictability – is now assumed as a concept of “order” that is conditioned by the values ​​of the political group in power, outside the formal constitutional order of the country. The Police, administration positions, social and environmental control structures, the State's business structures - in that order - begin to respond directly to the thinking arbitrated by the Leader, until the State is completely "privatized", caught "inside" by the dictator's organic leadership group and "from the outside" by his private militias, which are expanding their interference to the traditional Armed Forms.

The arrest of deputy Daniel Silveira (PSC) by the Federal Supreme Court, confirmed by a large margin of votes in the Federal Chamber, marks another step in the country's political crisis. The crisis had been ruled, until then – without any reaction from the Judiciary and Legislative Powers – by the offensives of the extreme right of the Government. Its form was outlined in the Movements of June 2013, it went through the impeachment of President Dilma and was added by death threats to PT and leftists, an attempt on President Lula’s life (to this day not clarified) received with total leniency by the Justice System .

The crisis fattens in the President's denialist policy, against science and vaccination, full of culminating moments of contempt for democracy, instigation of homicides, genocidal postures, coup movements in front of the STF and the barracks. This STF decision, contrary to what some respected jurists in our country say, may have the capacity to affirm the Supreme Court as the true Guardian of the Constitution, if it is not too late for society to stop fearing it, but also to count on him to block the lies and hatred of the rule of law that this government exhales from every pore.

Placed to choose between the values ​​that support the prerogatives and the values ​​that are pillars of democracy, therefore the prerogatives themselves, the STF – this time – did not fail the country: it said enough to totalitarian roguery. He said that he was choosing precisely that system of values ​​of the Rule of Law, the only ones that can give stability and permanence to the very prerogatives of Parliament, the same ones that the scoundrel used – in that wild moment – ​​to destroy them through the dictatorship. This STF decision will go down in history, contrary to the paradigm of Judge Bumke, who first lost his dignity and then his life, based on a single choice made between civilization and barbarism.

*Tarsus in law he was Governor of the State of Rio Grande do Sul, Mayor of Porto Alegre, Minister of Justice, Minister of Education and Minister of Institutional Relations in Brazil.

 

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