such as those by whom the former president () and participants of the January 8 attacks cannot be amnesty, in the evaluation of the lawyer and professor of law at PUC-RS (Pontifical Catholic University of Rio Grande do Sul) Ingo Wolfgang Sarlet.
“The democratic rule of law cannot reward those who pay against its principles, against its institutions,” he says, who argues that it brings it an implicit prohibition to this type of forgiveness and that it argues that proposal of the genre should not even go to deliberation.
“It causes even a species that such a measure may come from within Congress, when it is the pillar of democracy,” he says.
For Sarlet, it is not legitimate to compare with, because at the time it was not yet in democratic regime, unlike now.
Like mr. See those involved in the January 8 attacks, former President Jair Bolsonaro and other defendants of the coup plot?
I cannot understand how a congress, which should be the central pillar of the Democratic Rule of Law, which is the representation of popular sovereignty, can indeed consider and approve such a law, because it is really manifestly incompatible with what the function and purpose of a parliament in a democratic state is.
Why Mr. Do you say it’s incompatible? What would be compatible?
Compatible would be no amnesty. It is not a kind of offense that can be amnesty precisely by a premise that the Democratic Rule of Law cannot reward those who pay against its principles, against its institutions.
It is not that amnesty, pardon, grace or judicial forgiveness are prohibited. They are instruments of constitutional and legal protection.
Now, there is a seal towards a certain type of crimes. And these seals need not necessarily be expressed from the constitutional point of view. The fact that the Constitution does not expressly prohibit it does not mean that it is allowed.
We have even in the Chapter of Fundamental Rights, in Article 5 of the Constitution, the positive terms expressed that they prohibit the granting of amnesty to acts of civil or military armed groups against the democratic order. Although it is not necessarily a civil armed group, it does not mean that it is legitimate.
Then mr. Do you consider that a project with this content would be unconstitutional?
It would be unconstitutional and should already be barred in the CCJ (Constitution and Justice Commission), which is one of the permanent committees of the and even has as a role to make a first filter.
It is evident that this is a political decision and that it cannot be avoided in a democracy that someone submits a proposal. It is part of the democratic game.
Now this proposal must go through some filters and the first filter is the CCJ, which must make a filter based on the very constitutionality of a bill. And in this case, [ele] would not even go the deliberation.
Mr. Can you detail your argument about why it would be unconstitutional?
First, because these are democratic institutions and their protection in the constitutional context, of constitutional architecture, it is evidently part of the identity of the Constitution ,.
And that, of course, projects involving precisely offense to this type of content of constitutional identity should not even be brought to deliberation.
The second argument is that there is an implicit constitutional prohibition of amnesty, indulging and even offering forgiveness to this type of acts attentive to the Democratic Rule of Law.
Mr. Can you explain this concept of implicit sealing?
Just as there are rights and guarantees and implicit principles, it is also evident that implicit seals can be spoken.
Everything that is forbidden does not have to be written, especially in a constitutional text, which is a text that, however analytical, as detailed, will never be as detailed as a Civil Code, such as a Penal Code and other legislations.
So it is evident that if we have a constitutional guarantee even in this express case, which protects the stone clauses, even against constitutional amendment levels, if a constitutional amendment that is born from the National Congress with a much larger democratic legitimacy, an ordinary law, or even a complementary law that requires absolute majority, it is evident that if it is the most, which is the power to the constitution, which is the constitutional power, which is the constitutional power, which is the constitutional This can no longer, which will say who can least, which is the ordinary legislator.
Would this implicit seal also fit, if they are applied to this type of crime?
Yes definitely. Whether amnesty, pardon, grace or judicial forgiveness, any of these categories is, or should at least be, encompassed by this implicit constitutional prohibition. In the case of this type of offense, of course. Of this type of offense and those who are typified to the Constitution.
Can Amnesty be approved before a conviction?
It depends on what kind of amnesty we are talking about. We have amnesties that are legitimate, and we have amnesties that, starting, like this, could not even be proposed and placed in deliberation in Congress. In any kind, the act of granting the amnesty, and also of pardon and judicial forgiveness, is after the conviction. This should be the rule.
And cases of the past of Brazil in which the amnesty took place before the conviction, as in 1979?
If we are going to examine this history that we had amnesty laws approved before convictions, it evidently leads to the understanding that it could approve it now as well. This is a legitimate argument.
What I said is that the rule should not be this, but it is a personal understanding that this should not be the rule.
And this is an argument that has been used: ‘After all, if you have anão at the time, why can’t you amnesty now?’ But they are different moments and also different contexts and different objects. You cannot legitimately compare that moment and that law with this current movement.
Why isn’t it possible to make this parallel, the current discussion and the amnesty of 1979?
One is the context: we were not in a democratic regime, those being amnesty were being almost self amnesty.
And, of course, by an agreement, for a commitment, others were also included in amnesty and at the time they would have acted against consolidated institutions, but institutions of the Military Government, the authoritarian and dictatorial military regime. So that’s not what is happening now. We are in a democratic context of a consolidated democratic order.
In addition, we had a congressual, we did not have an autonomous constituent assembly that was elected only to elaborate the Constitution. Congress at the time has accumulated constituent functions with the ordinary function of legislator.
And therefore, the congress itself was forged, of course, with the components of the time, this constitution of 88 and built this democratic state. Therefore, even a species that such a measure can come from within Congress, when he himself is the pillar of democracy.
X-ray | Ingo Wolfgang Sarlet, 62
Lawyer and opinion. He is a full professor at the PUC-RS Law School (Pontifical Catholic University of Rio Grande do Sul), as well as a doctor and postdoctoral in law from the University of Munich. He is also a retired judge of TJ-RS.
