By JOÃO HÉLIO FERREIRA PES*

Senator Hamilton Mourão behaved criminally, instigating crimes against the democratic rule of law

The Brazilian justice system, when exercising its role as guardian of the Constitution and protector of the democratic rule of law, in rare spasms of action, is attacked and threatened by voices of those who supposedly represent people armed with weapons supplied by the State itself to protect them. it.

Senator Hamilton Mourão (Republicans-RS), when reacting to the operation that investigates crimes against democracy perpetrated by civilians and military personnel who participated in a criminal organization aiming at a coup d'état, also behaved criminally, instigating the practice of crimes against the Democratic state. The senator said that “in the case of the Armed Forces, their commanders cannot omit themselves in the face of the arbitrary conduct of illegal processes that affect their members, outside of justice” in a clear allusion to the need for reaction from those who are armed to protect Brazilian territory also protect themselves against democratically defined judicial norms and procedures.

Hamilton Mourão, as a former military agent, with the rank of general, even made serious threats, saying, in a play on words intended to hide behind parliamentary immunity, that “the mere observation of the precipitation of events, increasingly traumatic, indicates the regrettable possibility of a confrontation with very serious consequences.” This parliamentarian's place of speech is not just that of a simple senator, therefore, he cannot be covered by the institutional guarantee of parliamentary immunity.

In this sense, it is necessary to remember an old teaching of constitutional law that parliamentary immunity is the guarantee of the parliamentarian's activity to guarantee the institution of parliament. Therefore, to preserve institutions and the democratic rule of law, there is no need to talk about parliamentary immunity when the acts carried out, speeches, speeches and actions are intended to instigate criminal acts of violent abolition of the democratic rule of law.

This case of Hamilton Mourão and others similar to it cannot be secondaryized by political institutions and institutions of the justice system. It is an immense risk for democracy not to give due importance to acts that can be framed as condoning crimes against democratic institutions. It is the role of the political institution Senate of the Republic to open a process with the Ethics Commission to analyze deviations of this magnitude carried out by one of its members. Also, it is the role of the Public Ministry and Judiciary institutions to analyze, report and prosecute crimes committed.

Institutional negligence can give rise to tragedies. It is necessary not to abandon the possibility of learning from the past and also from recent facts. At this moment, North American institutional negligence is opening up the possibility of a candidate being elected who has already demonstrated that he is a threat to democracy itself. In the not so distant past, precisely on the 08th to 09th of November 1923, an attempted coup d'état took place in Germany, in Munich. With the neglect of the institutions of the Weimar Republic, the leader of this crime spent only nine months in prison. Approximately 10 years after this fact, the leader of the criminal organization against democracy, Hitler, assumes power in the German State. The consequence of this institutional doze was tragic not only for democracy, but also for the dignity of the human person.

Therefore, the negligence of institutions, combined with the disdain of party leaders and the political apathy of popular movements and citizens themselves, put the maintenance of democracy at risk, resulting in unimaginable tragedies. When we have these spasms of institutional effectiveness, there is no other alternative than to applaud and do everything so that the “law”, within the democratic State of Law, is an asset for citizenship against the arbitrariness of any eventual majority.

*João Hélio Ferreira Pes Professor of Law at the Franciscan University – UFN (Santa Maria, RS).

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