The decision of the 1st class of the Federal Supreme Court regarding former President Jair Bolsonaro, understanding that there was an attempt to coup d’état based on what was fundamentally found on Colonel Mauro Cid’s cell phone and his award-winning report, deserves some brief considerations.
This is a change in the jurisprudence of the Supreme, because, in the case of Lava Jato, despite the damage of billions caused to Brazil by confessed corrupters, the Supreme Court did not use the award-winning denunciation as the foundation of its decisions and even understood that it could not serve to support arrests.
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As an old lawyer, with 68 years of professional practice, 61 of university teaching and 90 years old, I confess that I still have a hard time understanding the decision, without, however, making any criticism of the ministers. By the way, for not criticizing them and often praising them, I am often censored by my readers and followers of social networks.
Fact is that, first, to have an attempt to blow, it would be necessary to be concrete action, which could only be performed by the military. However, no troop commanded military man took to the streets for this attempt.
I taught for 33 years to colonels that would be promoted to generals and, by 2022, I believe that approximately 90% of the generals had attended my constitutional law classes. I remember perfectly perfectly that during classes, at times of debate, there was no environment for any of them to be considered state blows, because my classes were about respect for the Constitution, never about their rupture.
I reaffirm: To have an attempt, there must be an act of execution of the crime. And in this case, the Armed Forces would be the only ones that could perform a possible blow. However, there was no attempt, as there was not even the beginning of an action.
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Secondly, to say that the January 8th event was a blow is very difficult to accept. I say this as a historian of the Paulista History Academy, with books published in the area.
As an academic of the Paulista Academy of History, I never saw, by studying world history, a coup d’état without the participation of the Armed Forces. I also highlight that my second academic thesis was about the impact of military expenses on public budgets, analyzing all well-known world battles until year 1,200, when they became so numerous that it is no longer possible to mention them individually.
I insist that what happened on January 8 was not a coup d’état either because no one was armed. It was a riot, but it was not a coup. One of the participants had lipstick and some had slings. Now, with lipstick and slingshot a revolution is not made.
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The third element that impresses me is to call a coup document a role without signature, where there was a statement of state of siege.
However, the state of site is a constitutional figure that exists to guarantee the rule of law and not to break it. To be decreed by the president, the state of siege must be authorized by an absolute majority of the National Congress.
It is, therefore, a worthless role, as the National Congress would never authorize the state of siege. Therefore, it is worth nothing, it is not a document.
Fourth point that, as a lawyer, seems important to me: many of the lawyers I know, some brilliant and very respected in Brazil, did not have complete access to the award -winning denunciation and all documents.
How am I going to defend my client without knowing all the elements that led to the accusation? The Constitution, in item LV of article 5 provides for the guarantee of the “broad defense”. The word “wide” is an adjective of an impressive ostic force. It is therefore not any judicial and procedural defense. Even so, the defense complained about having access to only that part that was in the case file. Therefore, it was a limited and curtailed defense.
With all the immense respect I have to the ministers, the matter would have, in my view, to be decided by the plenary of the Supreme Court, given the importance of the discussion.
Once again, I want to make it very clear that I do not make judgment of values about the ministers, because I have books written with some of them and always admired them as jurists. Although, in court decisions, our convergence is very great, our divergence occurs when I understand that they have become political power.
For this reason it is that today they are required to walk accompanied by security. Something that did not happen when I went out with the ministers Maurício Corrêa, Moreira Alves, Oscar Corrêa, Lamb War, Sidney Sanches, finally, all those who were my friends from time immemorial, such as those of Aliomar Baleeiro, Hahnemann Guimarães or José Néri da Silveira. It was not necessary to use security, because it was the STF only Judiciary.
It means that our current ministers receive a typical treatment of politicians: when they are on the street, who approves them, applauds, while those who do not like them, attack them.
As a modest provincial lawyer and efforted university professor of constitutional law, I believe that this was not the intention of the constituents, even because of what I witnessed to be discussed during the elaboration of our Magna Carta. In the 20 months I participated in commenting on the Constitution, I was heard in public hearings by the Constituents, maintaining permanent contact with Bernardo Cabral and visiting Ulysses Guimarães at his home, near the Jockey Club, to discuss points of the Constitution.
At that moment, the goal was, when we left a regime of exception, where there was a dominant power, to establish three harmonic and independent powers.
I portray, therefore, what I saw in the discussion and formulation of a broad, prolix constitution, but which had a fantastic dorsal spine, based on the harmony and independence of powers, as well as the provision of individual rights and guarantees, which are the two largest supports of the 1988 Constitution.
As a 90 -year -old man, a prisoner from São Paulo because of the difficulty of mobility, but with his head still working a little, although no longer as in the old days, I would like to bring these reflections to those who read me and saw the decision of distinguished STF ministers, but who have, however, in this nonagenarian, lawyer and university teacher, an interpretation that, unfortunately, in relation to the right, is decided.
Without having a position in relation to A, B or C, but only analyzing the trial as a 68 -year -old lawyer and 61 years as a university professor, who spent 20 months studying to comment with Celso Bastos, 15 volumes and about 10,000 pages, the Constitution of Brazil, this is my opinion.
I am very embarrassed to diverge from my friends of the Supreme Court, which I admire so much. But as a citizen, I couldn’t shut up.
