By VINÍCIO CARRILHO MARTINEZ*
This is one of the Brazilian chapters of the so-called “unconstitutional state of affairs”, in which the Constitution is violated in order for it to be effectively obeyed and fulfilled.
We will see, based on the Marielle Franco case, that the rule brought injustice and that its subversion (the exception created with the federalization of investigations) brought concrete results in the affirmation of justice; However, we will also see that the continuity of the investigations of the case depends on the superposition of a logic of the “exception of the exception”: in the specific case, it is the displacement (creation) of a prerogative of councilor forum (the supposed principal) to trial at the Federal Supreme Court.
Certainly, this is one of the Brazilian chapters of the so-called “unconstitutional state of affairs”, in which, at times, the Constitution is violated so that it, the Constitution, is effectively obeyed and fulfilled in its precepts general.
The objective is to indicate, in a preliminary and very concrete sense, how the very relationship between the exception (the exclusion of normality) and the exceptionalities (distortion or extension of the general rule) is not simple as normally intuited. We will see, in fact, that simple logic does not fully apply. This is the case of the exception of the exception (a kind of loop exception, when an exception produces another even further outside the general rule) which applies both within the scope of authoritarian, totalitarian regimes, and within the democratic State of law, especially in search of effective responses to the application of general rules to common justice .
In the example taken from the Marielle Franco Case in Rio de Janeiro, we will see that only the exception (federalization of investigations) brought effective results, as until then, the general rule was manipulated to hide this same claim to effective justice.
What we can extract from this beginning of the notes would lead us to think (as essence and background) about some possible relationships between the exception (as a rule, exclusionary and unfair) and exceptionalities. However, the biggest question here, of this relationship, brings us an inaugural paradox: how can we not follow the logic of the exception?
What should be done so that the exception is not used as a premise for implementing, through exceptionalities (affirmative reasons), the general rule of the democratic rule of law and social justice?
What should be done so that exceptionalities are not distorted (socially, morally, culturally, economically) by the predominant exception (law of the strongest, of capital)?
In this sense, the relationship between the exception[I] itself – that dictated by the State (the Law of the strongest, of capital, sovereignly predominates over human dignity) or against it (coups) – and exceptionalities (legal analysis of very special conditions, without completely subverting the rule of law ) reaches subtleties that go beyond the rule of the simplest logic: this is the case of the special forum for the judgment of actions, situations, which are also very special (exception), as is the case of the investigations into the murder of councilwoman Marielle Franco in Rio de Janeiro.[ii]
In this way, it is possible to verify that there are also many relationships between exceptions and exceptionalities and that this flow, in turn, does not follow the most established line of reasoning (the rule since then) but, rather, follows very special conditions. In other words, even the relationship between exceptions and exceptionalities (affirmative action, for example) does not have a “clear rule”: in fact, the rule established here will be that of the exception presented (the murder of the councilor was the trigger).
If the rule is equality (principle of equality[iii]) the exceptionality will be equity, the correction of the general rule that is incapable of solving the problems, the situations, idealized by the general rule: the very idealization of the Public Defender's Office would indicate the “regular” insufficiency of the judicial affirmation system. Very exceptionally, social justice has been achieved and this is equivalent to saying that, if the rule of equality remains – including as a way of distancing justice from success – exceptionality has not been asserted.
O discrimination, affirmative action, positive discrimination, the attribution of quotas or reservations to ensure the inclusion of excluded people (exclusion is the main rule of exception), therefore, these are exceptionalities – since the law of the strongest signals the isonomy, as a general rule, but, in practice, it applies the exclusion and marginalization of the majority of people: the subject of rights, in this way, does not have rights in practice, effectively. Practically speaking, it can be seen that the parameterization between the exception (in the example of the privileged forum) and exceptionalities is not simple, linear.
In fact, if the privileged forum is already an exception, when compared to ordinary citizens, the invocation of a privileged forum, such as the trial in the Federal Supreme Court (STF), of an alleged perpetrator of murder when he was just a councilor (outside the constitutional scope of the STF[iv]) indicates another variation of the “exception of the exception”: the special trial forum is already an exception and the trial of a parliamentarian (at the time, a councilor) by the STF is the symptomatic exception of the exception. The argument about the need for the “exception of the exception of the privileged forum” follows the objective of achieving equity – and that, above all, in this case would be the affirmation of justice (that is, exceptionality itself).
We resort to the exception of the exception (abstraction of abstraction) to implement the simple and ideal rule: justice.
However, how can it be done in this way, if, beforehand, the exception of the exception expresses the darkest side of exceptional, authoritarian, totalitarian regimes, in which one exception generates another that is even worse (loop of the exception)[v]?
This is not an exercise in mere speculation (logic), but rather about the origin, the structure, the “normality”, regularity, the instruments, the reality, the logic of practical exclusion from justice.
This precedent (in the sense of exceptionality) will do justice, but what guarantees us that the same rule of “exception of the exception” (today beneficial: affirmative exceptionality) will not be used against the just intention indicated?
In this case, the rule of the exception of the exception would return to its regular historical course: of affirmation of injustice.
This is another chapter of the already established “unconstitutional state of affairs” (acting on normality, even removing constitutional interpretations, so that the Constitution is fulfilled and minimum justice is offered), and which occurred in relation to the necessary response to deformities or incapacities of the democratic rule of law to carry out the minimum that is expected – in this case and in all others unresolved.
*Vinicio Carrilho Martinez is a professor at the Department of Education at the Federal University of São Carlos (UFSCar), author, among other books, of Bolsonarism. Some Political-Legal and Psychosocial Aspects (APGIQ). [https://amzn.to/4aBmwH6]
Notes
[I] In a concrete example, in order to make it easier to understand, see the Coup d'Etat which aims to prepare the ground for the decree of a State of Siege and thus obtain the revocation of civil, political and citizenship rights. This condition of exception also illustrates the special validity of private rights, which annul (by subverting) the general rule, which annul the very meaning of Public Law: the establishment of these privileges (private laws) as an insoluble rule applied to only some individuals is clear when we think about the “gimmicks” guaranteed in the paycheck of the Judiciary and the Public Ministry.
[ii] https://noticias.uol.com.br/colunas/carolina-brigido/2024/03/29/regra-do-foro-no-stf-ficara-mais-rigida-apos-caso-marielle-dizem-ministros.htm.
[iii] O caput Article 5 of the 1988 Federal Constitution brings two basic principles: everyone is equal (equality) before the law: legality.
[iv] https://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?idConteudo=468225&ori=1.
[v] Furthermore, mentioning Marcuse, it is never too much to remember that every technical a priori is a political a priori. That is, firstly, it is not just a legal technicality, and secondly, even if it were a mere legal technicality, its effects would be political.
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