Grace declared and pardon announced

Image: Juan Pablo Serrano Arenas
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By TANIA MANDARINO*

Bolsonaro continues to behave like someone on the eve of a coup

On April 21, President Jair Bolsonaro granted grace or pardon to federal deputy Daniel Silveira, convicted the day before by the Federal Supreme Court (STF). The announcement of the measure was immediately followed by important people in the legal and political scene, stating that it was a coup and a serious attack on the Judiciary.

I stay here wondering what the surprise is, since Bolsonaro's election itself was a coup and that at no time did he stop attacking the Judiciary, by himself, or even through his minions, through threats such as "a corporal and a soldier”. Incidentally, is there greater aggression than imposing military personnel as advisors to certain ministers of the Court?

Among all the truisms of this government, this is just one more and, therefore, I do not consider it very accurate to say that the new unconstitutional attitude of the president heralds the eve of the coup, since we already live in a state of coup, permanent and continuous. It is certain that a new season will begin, in which the Executive and Judiciary will fight, but the coup has already been carried out, at least, since 2016. Although everything Bolsonaro and his government do is subject to prior planning, the school they attend already indicated to us that this path would be followed.

Just remember what happened in the US when Donald Trump, Bolsonaro's classmate at Cambridge Analytica, less than 12 hours before the end of his government, pardoned Steve Bannon and other allies. Bannon, who was released on bail, was arrested in August 2020, accused of diverting $ 1 million in donations from Trump supporters to build that wall on the border between the United States and Mexico.

At the time, Trump also pardoned 142 more people, most of them corrupt politicians and executives close to him, favoring 73 with pardons and another 70 with sentence commutations. By all indications, Bannon is the link for understanding the declared grace and the announced pardon.

Therefore, any assessment of the episode from a strictly national institutional perspective will lack foundation and substance. It is essential to assess the geopolitical conditions that point to the formation of a global multipolarity, in which the US weakens.

Returning to the battleground between the Federal Executive and the Judiciary. It is necessary to emphasize that the framework of our institutional weaknesses does not start today and that our constitutional mechanism ultimately leads to the granting of supreme power to the Supreme Court. Greater ruptures would require military forces in the streets, but I don't think that the military that supports Bolsonaro, concerned with blue pills, lubricants and penile prostheses, would be so willing, or even successful.

What would also remain obvious: the paramilitary forces of militiamen in place and in action, many of them already pardoned by Bolsonaro at Christmas 2019 through Decree No. 10/189.

And do you know why the STF did not face Bolsonaro's pardon of the militiamen in December 2019? Because in May of that same year, when judging ADI nº 5.874, proposed in 2017 by public prosecutors against the Christmas pardon of Michel Temer (among them, Dalton Dallagnol, who feared that Lula would be pardoned), the STF declared the ADI unfounded and constitutional measure of the then president.

By seven votes to four, the STF then signed the thesis that the Christmas pardon is a private act of the President of the Republic. By the way, by bringing the divergence, which in the end prevailed, Minister Alexandre de Moraes was the great architect of the thesis signed. On the occasion, Moraes recalled that the pardon is a tradition in Brazil and that its concession is provided for in article 84, item XII, of the Federal Constitution, being a private act of the President of the Republic that does not violate the principle of separation of powers.

At the time, Moraes recalled that the limits to the presidential power to pardon are restricted to cases of people being extradited, as a mere matter of jurisdiction of the Brazilian State, and those convicted of heinous crimes, such as torture, terrorism and drug trafficking. Even so, in April 2018, Minister Luís Roberto Barroso rewrote Michel Temer's 2017 decree.

I know this because, together with Henrique Pizzolato and his wife, Andrea Haas, I studied this issue in depth. Pizzolato was one of those pardoned by Temer's decree. However, in view of the re-editions made by Barroso, Pizzolato had immense difficulties in securing his right. Only in 2021 was he able to implement his pardon. That is, if the Court decided that the pardon is a private act of the President of the Republic, the significant changes made by Barroso in the sequence could never have subsisted.

Now, six months away from the most important presidential election of our young and battered democracy, with Lula in the running and strong indications of his victory, the condemnation of congressman Daniel Silveira by our Supreme Court of Justice gives the cue for eternal coup man Jair Bolsonaro to say his text, taught by Bannon.

It is the price we often pay for not having stopped the then deputy Jair Bolsonaro on that fateful April 17, 2016, when, in the plenary of the Federal Chamber, he evoked the memory of torturer and murderer Carlos Brilhante Ustra, whom he called “the terror of Dilma Rousseff". The permissive apology for torture, shouted inside parliament without any consequences, was already a symptom of a serious institutional crisis.

And the permission, that day, for the opening of the impeachment process against the president wasn't it either? Was Bolsonaro's crime, still a deputy, by any chance smaller than those of deputy Daniel Silveira? Where was the STF that day?

I know excellent lawyers who maintain that if all the Powers of the Republic were really in balance, the STF could not sentence a parliamentarian to loss of mandate and imprisonment, as happened in the case of Daniel Silveira.

An allegation of Non-compliance with a Fundamental Precept (ADPF) and a draft legislative decree, authored by Senator Renan Calheiros, are already pending on Bolsonaro's decree without number, for immediate, broad and complete suspension.

The ADPF, proposed by the Sustainability Network before the STF and which already has Rosa Weber as rapporteur, may be the worst path to follow. It is necessary to leave the STF out of this discussion, as the opposite could lead to the success of the presidential plans guided by Bannon. The suspension project proposed by Renan is an intelligent solution, as it takes the discussion to the political field and puts the Legislative, the third power of the Republic, in the audience. Renan masterfully activated the system of checks and balances provided for in the Federal Constitution to curb usurpations like the one Bolsonaro intends.

The decision on the Daniel Silveira case was not even published. Afterwards, after its final and unappealable decision, although in his tyrannical decree Bolsonaro dictates that it is not necessary to wait for the final and unappealable decision, appeals still fit, which will be considered by the STF itself. By the way, a situation totally opposite to what happened in AP 470, the famous “mensalão”, where convicts were not even entitled to the double degree of jurisdiction.

Paraphrasing King Louis XIV and his “L'État c'est moi” [The State is me], the Minister of the STF, Joaquim Barbosa, in the “mensalão”, acted as if the State were him, taking PT hostages, a condition in which many find themselves to this day. By the way, due to the excessive republicanism of the progressive forces, among other factors.

The most ironic thing is that Bolsonaro learns at Bannon's school to take advantage of the weaknesses of our own republican system, which allowed sectors of the Judiciary to act in favor of the coup. Fragilities that again put us at risk, leading us, in the words of many, to this “moment of extreme gravity”.

Without wanting to be or seem to be in denial about the possibility of an institutional break (which has been announced since 2016), the indications are that the Judiciary, enshrined, will protect itself from the attacks generated by its own contradictions and Bolsonaro will continue to behave like someone who is on the eve in one blow. Until we win. For that, we need to take this discussion to the outskirts, where better analyzes than mine can come out.

More skilful analyzes stamp the daily lives of 19 million Brazilian men and women who are starving, 12 million Brazilian men and women unemployed and 86 million Brazilian men and women without access to justice. For these, it doesn't matter if the STF condemned and Bolsonaro will forgive a militiaman who became a deputy.

Finally, it is important to note that Bolsonaro does not abandon his supporters in the hands of the Judiciary. Which, in my humble opinion, signals greater danger and seriousness. That, yes, can be the password of encouragement for irrational cattle to submit to their command in a snap of the fingers and create destabilization and chaos that can overflow in episodes much worse than those that occurred in the US Capitol in 2021.

On the other hand, leftist militants had wounded comrades, abandoned in trenches in recent years, without help. This certainly reverberates in setbacks, fears and anguish of also assuming oneself to be abandoned. As you can see, there is a lot to put in order in the house and at home and democracy always presupposes constant vigilance and attention.

We have to act and react, starting by not letting ourselves be guided by Bolsonaro's obvious outbursts, whom we will beat at the polls in October and in the streets. As? Strengthening the militancy's confidence in victory and restoring ties with the working classes. The people have no one to defend them. To this one our most intransigible loyalty.

*Tânia Mandarino is a lawyer. She is a member of the Collective Lawyers and Lawyers for Democracy (CAAD).

Originally published on the website Viomundo.

 

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