By OSCAR VILHENA VIEIRA*
Foreword to the recently released book by Ricardo Carvalho and Otávio Dias
Visiting political prisoners at DOI-CODI in 1969 required courage, even for experienced lawyers. It also required creativity and a willingness to explore the few legal loopholes left by Institutional Act No. 5 (AI-5) to exercise the right to defense of those detained by the regime. José Carlos Dias was one of the most prominent lawyers to take on this responsibility, which even led him to be detained in the Rua Tutoia jail, albeit for a short time. During the exceptional regime, established in Brazil on April 1, 1964, José Carlos Dias defended more than 500 political prisoners, many of them free of charge.
Gifted with precocious professional talent – forged in the political battles of the Arcadas and in the courtroom, where he began his career –, in addition to a deep commitment to democratic and humanist values, José Carlos did not allow himself to be intimidated by the challenges of defending human rights in a regime that transformed torture, arbitrary arrests and forced disappearances into state policy. He did not remain silent in the face of a dictatorship that, in order to cover up these crimes, institutionalized censorship and removed from the ordinary justice system the possibility of assessing the legality of conduct based on institutional acts.
José Carlos Dias thus belongs to a lineage of lawyers who, throughout our troubled political and institutional history, have undertaken the difficult task of using their knowledge, prestige and perseverance to mobilize the law in the midst of a state of emergency. It is important to remember that AI-5 not only suspended a series of fundamental rights, but also stripped the Judiciary of its prerogative to assess the conduct of authorities based on that same Act. If defending human rights under the rule of law is already no easy task, due to the stigma and prejudice that defending marginalized and vulnerable groups carries, what can we say about doing so when power is held by groups that subvert legality and subordinate judicial bodies, to the point of denying citizens the most essential guarantees?
Over more than six decades of professional practice, José Carlos Dias has become one of the leading figures in Brazilian criminal law. He boldly and selflessly exercised his role as a public authority, when called upon to take over the Secretariat of Justice of the State of São Paulo (André Franco Montoro government), the Ministry of Justice (Fernando Henrique Cardoso government), as well as the Truth Commission (Dilma Rousseff government), putting into practice his humanist principles and cutting-edge public policies in the field of the criminal system. This trajectory has given José Carlos a calm and natural leadership within civil society, having presided over organizations such as the Justice and Peace Commission of the Archdiocese of São Paulo, at the height of the military regime, and, more recently, the D. Paulo Evaristo Arns Commission for the Defense of Human Rights, created in 2019 with the objective of protecting democracy and human rights after the election of Jair Bolsonaro as President of the Republic.
The purpose of this preface, however, is not to highlight the personal qualities of the subject of the biography or to summarize his political and professional career, since this is already the subject of the intriguing reports carefully collected by journalists Ricardo Carvalho and Otávio Dias in this volume. The objective here is limited to drawing the reader's attention to José Carlos Dias's inclusion in this lineage of jurists who, from the trenches opened by Luiz Gama (1830-1882) in the fight against slavery, took on the challenge of defending human rights under conditions of extreme adversity.
The abolitionist movement and the freedom actions led by Luiz Gama constitute the cornerstone of human rights advocacy in Brazil. A slave in his childhood, a journalist, poet, political leader and, above all, a lawyer (without having had the right to attend college), he was a central figure in the political, social and legal movement that led to the end of slavery. Within his ubiquitous role in the abolitionist movement, he played a pioneering role in the strategic use of law to promote the freedom of enslaved people, in the context of a perverse and illegitimate legal system. At the same time that he fought politically against the legal regime of slavery and the monarchy, Luiz Gama used the rules of the slave legal system to defend the freedom of enslaved black people.
The abolition of slavery on May 13, 1888, was the culmination of a long and tortuous journey, including from a legal perspective. In 1831, the first decree was issued prohibiting the entry of enslaved blacks into Brazil, under pressure from the English government. Those who were victims of illegal trafficking were to be freed from that date onwards. The fact is that the authorities had no intention of complying with the treaty or the decree that prohibited the slave trade. This is where the expression “for the English to see” comes from, a trademark of the cynicism of the Brazilian elites regarding their willingness to comply with their legal obligations.
Four decades after the prohibition of trafficking, the “Free Womb Law” was passed, which determined that children born to enslaved women after September 28, 1871 would be free. The same law authorized slaves to buy their own freedom. These measures, aimed at slowly relaxing the perverse slavery regime, as was to be expected, were met with enormous resistance from slave owners and even from those responsible for implementing them.
It is in this context that a strategic set of legal actions promoted by Luiz Gama stands out, provoking the judicial system to ensure the freedom of those who were “illegally” in the condition of slaves, even though they had been trafficked after the prohibition, were born after 1871 or were unable to buy their freedom, even though they had that right. Tirelessly, Luiz Gama formulates innovative theses, raises resources, promotes public debate, and gathers supporters inside and outside the legal community to promote these freedom actions.
Among the young people he inspired was Rui Barbosa (1849-1923), his fellow countryman and friend, as demonstrated by the correspondence between the two. Rui became not only an important abolitionist, putting into practice much of what he learned from Luiz Gama, but also one of the most important figures of the Republic that he helped to build after the end of slavery. Architect of the 1891 Constitution, first Minister of Finance of the provisional government, tribune, senator, candidate for the Presidency of the Republic – with his civilist campaign –, Rui Barbosa continued the lineage opened by Luiz Gama, dedicating much of his legal practice to defending the public interest, above all, to defending civil and political rights, in a period marked by incessant decrees of a state of siege, which made the Old Republic a regime where the state of exception prevailed more than the rule of law. Rui Barbosa used all his reputation, his skills and his civic courage to defend the rights of those politically persecuted, even if they were his adversaries.
In a system devoid of legal guarantees capable of ensuring the effectiveness of the rights recognized by the Constitution, Rui Barbosa forged the “Brazilian theory of habeas corpus”, in dialogue with Pedro Lessa (1859-1921), then Minister of the Federal Supreme Court, broadening the scope of this constitutional remedy to protect other civil and political rights beyond those in the criminal field. Rui Barbosa also made a fundamental contribution to the formulation of the ethical parameters of the Brazilian legal profession, including the defense of those in need among the obligations of the profession that was then being institutionalized.
Antônio Evaristo de Moraes (1871-1939), a pioneer in the defense of social rights among us, and Heráclito Fontoura Sobral Pinto (1893-1991) worked with Rui Barbosa and continued his legacy. The latter, a fervent Catholic and anti-communist, became famous for defending countless political dissidents during the Estado Novo dictatorship (1937-1945). He fervently defended even his greatest ideological adversaries. Luís Carlos Prestes (1898-1990) was certainly the most famous of his clients. The defense of Henry Berger, another communist arrested and tortured by the Estado Novo political police, however, is the one that best represents Sobral Pinto's creativity and ability to explore the cracks in the regime of exception in the defense of his clients. Deprived of the possibility of employing constitutional guarantees suspended by the regime, Sobral Pinto resorts to animal protection rules, which prohibited cruelty and mistreatment, in addition to defining the conditions for confining animals, to defend his client, imprisoned in abject conditions and subjected to illegal torture.
The examples of Luiz Gama, Rui Barbosa and Sobral Pinto paved the way for other lawyers who would become famous for practicing their profession in politically and legally adverse circumstances, such as Evandro Lins e Silva (1912-2002), who reached the Supreme Federal Court, but was later dismissed by the military regime in 1969.
They are professionals from different backgrounds and with different political and ideological beliefs: some socialists, linked to left-wing parties and the trade union world; others progressive liberals, especially among criminalists, marked by a deep commitment to the right to defense; as well as Catholic jurists, influenced by the social doctrine of the Catholic Church, promoted by John XXIII (1881-1963), which found an echo in Brazil, from leaders such as Dom Hélder Câmara (1909-1999) and Dom Paulo Evaristo Arns (1921-2016).
With the worsening of the military regime, especially after the decree of AI-5, in 1968, lawyers such as Raimundo Pascoal Barbosa (1921-2002), Heleno Fragoso (1926-1985), Dalmo de Abreu Dallari (1931-2022), Idibal Piveta (1931-2023), Mário de Passos Simas (1934-2023), Eny Moreira (1946-2022) and Mércia de Albuquerque Ferreira (1934-2003), now deceased, as well as Marcelo Cerqueira, Airton Soares, Rosa Cardoso da Cunha, Maria Luiza Flores da Cunha Bierrenbach, Belisário dos Santos Júnior, Maria Regina Pasquale, Fernando Santa Cruz Oliveira and many others became increasingly entangled in the defense of political prisoners. José Carlos Dias is part of this generation.
Although he actively participated in political life at the Law School of the University of São Paulo, José Carlos states in the reports we have in hand that his greatest ambition during his law studies was to become a jury trial lawyer. It is not easy to extract from him what motivated him to take on the defense of so many political prisoners. There are, however, some clues that we can follow to try to understand what led the young lawyer, son of the respected Justice Theodomiro Dias, to put his career and eventually his life at risk to defend the freedom and lives of other people. This is not about making a genealogy of the motivations that lead someone to assume this level of commitment. These causal relationships are very complex and fleeting, which could lead to some kind of naive and mistaken determinism.
But, given the laconic way in which the subject of the biography responds to this type of question, it becomes irresistible to speculate on what clay the lawyer's disposition was made of, throughout his life, to fight for the rights of those who find themselves in vulnerable situations.
The first clue may be the emotion he describes when reading “The Slave Ship” when he was still a boy. For many, poetry and literature can be an important path to building empathy and otherness. The impression that the iron poetry of Castro Alves (1847-1871) left on his soul has never faded. Inspired by the great poet from Bahia, José Carlos published his first book of poetry at the age of 13, and the second at 17.
He then immersed himself in university life and his career, but he never stopped writing poems. He has dozens of unpublished poems that occasionally come out of his drawers and are recited to family and close friends. They are certainly worth collecting in another book. The barbarity of the slave trade from Africa to Brazil, described by Castro Alves, seems to have left its mark not only on the boy who loved poetry.
The pain and suffering of others became part of José Carlos's existence and motivated him to act against the injustices he encountered along the way. Although he grew up in a fairly conservative environment, at least at Colégio São Luís, José Carlos seems to have inherited from the generation of São Paulo residents who participated in the Constitutionalist Revolution of 1932, like his father, an aversion to dictatorships, both that of Getúlio Vargas's Estado Novo and that of the military regime established by the military in 1964.
The political environment of Largo São Francisco is also constantly cited as a fertile breeding ground for this lawyer who was determined to defend freedom. However, there is a political element that stands out in his accounts of this period of training, which certainly may have contributed to many of José Carlos Dias's future moves.
While still an academic, he served as an assistant in the Justice Department of the State of São Paulo, then under the command of Antônio Queiroz Filho (1910-1963), professor of criminal law at the Pontifical Catholic University of São Paulo and one of the founders, alongside André Franco Montoro (1916-1999), of Christian Democracy in Brazil. This connection led the young José Carlos Dias on a formative journey.
in Europe, in the company of other Latin American students, in the early 1960s. In this volume, José Carlos describes a remarkable moment in which he met Aldo Moro, an Italian jurist and politician, who became Prime Minister of Italy in the 1960s, but was kidnapped and killed in 1978 by the Red Brigades. This involvement with Christian Democracy led him to the Catholic University Youth, like so many colleagues of his generation, including Plínio de Arruda Sampaio (1930-2014). The
Queiroz Filho's manism seems to have marked a generation of people who would enter Brazilian public life in the following years.
The 1964 coup interrupted or diverted many of these trajectories. Some went underground, others into exile. Many, however, fell into the clutches of the repressive apparatus set up by the military, with broad support and connivance from the Brazilian civil right. José Carlos Dias turned to criminal law, pursuing his goal set out on his first day of class at Largo de São Francisco. The acumen honed in the jury trial, the resilience acquired in the day-to-day life of the justice system, combined with a network of political relationships built throughout his education, contributed to José Carlos Dias being quickly called upon for the difficult mission of defending dissidents and political prisoners.
Since he was not affiliated with any political party or movement, he was able to more credibly defend communists, socialists and even people who were unwittingly caught in the tentacles of repression. Just like those who preceded him in the fight for rights in arbitrary and unjust regimes, José Carlos Dias soon encountered the legal, normative and political limits that circumscribed his work as a lawyer for political prisoners. The successive institutional acts, the constitutional charters of 1967 and 1969, which buried the liberal democracy established by the 1946 Constitution, associated with the National Security Law, which framed the regime of exception, offered little room for the exercise of the right to defense, which was restricted to the Military Court. It was in that inhospitable environment, loyal to the coup leaders, that José Carlos Dias sought to find spaces to protect his clients. Many times, he filed a habeas corpus without any expectation that he would be able to release a prison sentence. Their goal was simply to locate the detained person and make it clear that the Brazilian state was responsible for his or her fate. As Antony Pereira points out, paradoxical as it may be, the fact that acts of arbitrariness have become somewhat institutionalized in Brazil has probably contributed to reducing the number of dissidents killed, unlike what happened in Argentina.
José Carlos Dias, by insisting on defending his clients in the Military Court, promoted a certain restraint on the barbarity. The cowardice of members of the Military Public Prosecutor's Office and of many military judges, confronted by lawyers, even mobilized an unexpectedly legalistic stance by some members of the Superior Military Court. One of the paradoxes of the regime is that hard-line presidents, such as Generals Costa e Silva and Médici, sought to "lean" legalistic generals into the Superior Military Court (STM) so that they could have free rein within the Armed Forces. These legalists, however, helped to restrain the arbitrary actions of their barracks colleagues. José Carlos knew, like few others, how to extract some protection for the rights of his clients from the "authoritarian legality", suffering deeply from the defeats and their consequences.
It is difficult to understand José Carlos Dias’ willingness to confront arbitrariness without placing it in the broader context of the resistance movement against the military regime. He never liked to go it alone. As the regime began to close in on itself, other sectors began to organize themselves to resist. In the 1970s, the figure of Dom Paulo Evaristo Arns was central to the creation of the Justice and Peace Commission, in line with a broader action promoted by the discreet Pope Paul VI (1897-1978), from Rome, as a reaction to the repression, especially in the Southern Cone. Dom Paulo established an important dialogue with other religious leaders and sectors concerned with the advance of authoritarianism and human rights violations.
At the Justice and Peace Commission, José Carlos found the support and partnership of Margarida Genevois, Dalmo de Abreu Dallari, Fábio Konder Comparato, José Gregori (1930-2023) and countless other lawyers and activists who became lifelong companions and friends. Working side by side, close to Dom Paulo, they welcomed victims and their families and designed strategies for the legal and political defense of human rights. José Carlos never acted alone. He always sought to bring together people and sectors in the defense of human rights. His son, Theo Dias, president of the Board of Conectas Human Rights, highlights how much José Carlos Dias' sense of belonging to a group of committed people can help explain his trajectory.
His motivation to fight for rights was strengthened by his own experience of resistance against the dictatorship. When he faced professionally the escalation of illegalities perpetrated by the military regime, especially the torture, deaths, disappearances and exile of his clients, José Carlos became more combative. His coexistence with opponents of the regime within the church led by Dom Paulo, the OAB, the MDB, the union and student movements, the press, as well as within the cultural environment (MPB, theater, literature) contributed to greater politicization and engagement over the years.
The trajectory described in this book is also the trajectory of a generation whose guiding principle is the defense of democracy and the rule of law. A generation of people with a vocation for public life who, while still very young, challenged the military regime, participated in the democratic reconstruction of the New Republic, and, in recent years, inspired younger people to resist the authoritarian movements of the Bolsonaro government, when the institutional architecture of the 1988 Constitution was subjected to its most rigorous test.
José Carlos's work was not limited to the legal defense of political prisoners. His role in the creation of the Letter to Brazilians, which would be read on August 8, 1977, in the Arcadas courtyard at the Law School of the University of São Paulo, is an example of this. Likewise, his activism in favor of democracy and a new Constitution within the Brazilian Bar Association and other professional associations, alongside Miguel Reale Jr. and other colleagues such as Márcio Thomaz Bastos (1935-2014), was essential in the transition to democracy in the late 1970s and 1980s.
It is also worth highlighting his sense of responsibility towards the reborn democracy, when he accepted public office in the governments of Franco Montoro, Fernando Henrique Cardoso and Dilma Rousseff, temporarily stepping away from the legal profession. José Carlos knew that the end of the military dictatorship would not usher in a regime in which everyone would have their human rights respected, as the experience of the Montoro government demonstrated. The enormous resistance from reactionary sectors and opponents of human rights, unhappy with the end of the regime of exception, became an obstacle to the universalization of the rule of law, which decades later has still not been fully achieved.
When he seemed willing to spend more time on the family farm in Santa Branca, with Regina, receiving friends and spending time with his children and grandchildren, José Carlos was called upon at the end of 2018 to once again defend Brazilian democracy. His contribution to the Arns Commission, created by Paulo Sérgio Pinheiro to defend human rights against their eternal enemies, entrenched in the Presidency of the Republic between 2019 and 2022 (Bolsonaro's government), was fundamental to rebuilding the fabric of Brazilian civil society, which had been torn apart during the political crises that led to the impeachment of President Dilma Rousseff.
As president of the Arns Commission between 2019 and 2023, José Carlos Dias was fundamental to the reconstruction of a broad, diverse and plural democratic front in defense of democracy and human rights. It was his moral authority that allowed the elaboration of the Pact for Life, signed by the National Conference of Bishops of Brazil, the Brazilian Bar Association, the Brazilian Society for the Advancement of Science, the Brazilian Press Association and the Brazilian Academy of Sciences, in addition to the Arns Commission, aimed at defending life, in the face of Bolsonaro's disastrous actions during the pandemic, which led to the unnecessary loss of hundreds of thousands of lives.
José Carlos also played a key role in the events of August 11, 2022, which mobilized broad sectors of civil society, from the Black Movement to the Federation of Industries of São Paulo, including the Central Única dos Trabalhadores and the Brazilian Federation of Banks, as well as other sectors of Brazilian society and the economy that did not allow themselves to be seduced by obscurantism and came together in defense of the democratic rule of law. It was up to José Carlos Dias – who had conceived with friends from his generation the 1977 Letter to Brazilians, an important milestone in the process that led to the end of the military regime – to read the Letter in Defense of Democracy and the Rule of Law, drafted in 2022 by civil society entities, making it clear that Brazilian democracy would not be suppressed once again.
José Carlos Dias' career has been marked by enormous political coherence, moral correctness and professional competence, as well as a strong commitment to democracy, pluralism, tolerance and, above all, the defense of human rights. This path has elevated him to a position of moral reserve in a society marked by arbitrariness, violence and inequality.
Her career has also served as an inspiration to new generations of lawyers concerned with achieving justice, such as those who come together in organizations such as Conectas Direitos Humanos, Instituto Pro Bono or Instituto de Defesa do Direito de Defesa, among others. Her children, Theo, Otávio, Celina and Marina, are examples of her legacy, and each in their own way and in their own area of expertise, have contributed to a more just world.
It is intriguing to note that in the same person courage, moral rectitude and combativeness can coexist so harmoniously, with a poet's sensitivity, a militant sense of humor and unpretentiousness; and all of this sheltered in the broadest of smiles.
Good reading!
*Oscar Vilhena Vieira and pProfessor at FGV Direito SP and member of the Human Rights Defense Commission D. Paulo Evaristo Arns.
Reference
Ricardo Carvalho and Otavio Dias. Democracy and freedom – José Carlos Dias’s trajectory in the defense of human rights. New York, 2024. [https://amzn.to/4fhPP3E]
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