Retired Minister of the Federal Supreme Court Carlos Ayres Britto understands that the law that established them cannot be revoked nor attenuated.
According to him, by serving the principle of the principles of the Constitution, which is democracy, establishing protection barriers to it, the legislator made a trip without return. “The journey of the defense of democracy does not admit setbacks, nor reduction in its protective load, democracy.”
With this, he argues that if the congress takes advantage of one, it will be up to the supreme to give the last word, evaluating the constitutionality of the norm and whether it has mitigated or broke the burden of protecting democracy.
Ayres Britto also argues that one to former president (PL) would be unconstitutional. For him, there is a logical and implicit prohibition. In addition, in his view, a second restriction would result from the fact that Bolsonaro was president of the Republic. “No state agent can be amnesty by action on behalf of the state, because it would be self -annisting, it would be to amnesty the state itself.”
The interview with the minister was held on Monday (15), by video, and complemented on Friday (19), by telephone, with questions about the developments that occurred in this break.
Like mr. Do you see those involved in the January 8 attacks, the coup plot defendants and former President Jair Bolsonaro?
The Constitution speaks of amnesty that it is up to the Union. Now it is necessary to know which amnesty is speaking the Constitution. And the Supreme, who is the one who finally applies to the Constitution, will have to decide.
It seems to me that amnesty cannot benefit those who attached democracy, against the democratic regime, against democratic institutions. Because democracy, in the 1988 Constitution, is the principle of principles. It is the continent principle that all other principles are content.
In the evaluation of Mr., therefore, could not be amnesty crimes against the Democratic Rule of Law?
It is a logical impossibility, it is a logical prohibition. It did not need the Constitution to say. It is implicit that some contents of the supreme principle, from the continent of democracy, may be amnesty, but not itself, as a continent principle.
There are people who understand that this seal would need to be explicit.
The principle of principles being democracy is innistable, because the condition of the possibility of punishing all other crimes is the permanence of democracy. If democracy is abolished, if democracy is sweeping from the map, what remains of the rule of law and the democratic rule of law? Nothing.
There are logical things in law. The Constitution need not say. There are implicit and there are stone clauses that are explicit. An implicit stone clause is the impossibility of scanning the principle of principles from the map, which is democracy.
Mr. It has also used the self -annisting term. Could you explain this concept?
Can the particular individual who pay against democracy be amnesty? I answer, no. And a state agent, acting as a state agent, can be amnesty? [Também] No. The state is what its agents are in action. State agents speak in the name of the state. So speaking on behalf of the state, they are the state itself. Self -analysis, to exclude a state agent from responsibility or punishment, is also logically prohibited by the Constitution, because otherwise it would be self -annisting.
Can the state download a law amnestying its agents, who have acted on his behalf, state? No, logically not. It is an implicit prohibition. But the Supreme is the one who will give the last word.
Then mr. Do you consider that an amnesty proposal would be unconstitutional for these two reasons?
He would be, [assim] as [uma proposta] to benefit any other state agent acting as a state agent. No state agent can be amnesty by action on behalf of the state, because it would be self -annisting, would be amnesty the state itself.
This logic, applied to there would not be a autolanist?
There, first, it was before the current constitution, I am talking in the light of the current constitution. But historically [a anistia de 1979 também] He has annisted struggling, defenders of democracy, not enemies of democracy. We were about to create a Democratic Rule of Law.
Like mr. See the latest articulation in Congress to?
Whatever the change that the National Congress may introduce, either the Penal Code or the Constitution, as it is a figure of criminal law at the service of the supreme constitutional principle of democracy, matter will return to the Supreme. The supreme will give the last word.
When a law is edited by Congress to directly serve a constitutional principle, it gains a uniqueness: to remain as law in a formal sense, but simultaneously as a constitutional norm in a substantive material sense. Hence submit this type of norm to the control of constitutionality that is proper to the Supreme.
What limits mr. See for an attenuation of the feathers?
The limit of not being able to retreat in the protection load conferred into democracy. This is why it is a legislative trip without return. By the substance of the law, to protect the principle of the principles of the Constitution, which is democracy, the legislator makes a trip without return.
In the analysis of MR, can the Democracy Defense Law only be edited to increase protection and not decrease?
That. Or preserve or increase, do not decrease. The journey of the defense of democracy does not admit setbacks, nor reduction in its protective burden, democracy.
From this perspective, could an attenuation of this protection be unconstitutional?
The Supreme who will say if the protection load was attenuated, if it was relieved, if it was undone.
It is the property of constitutionality control to see the compatibility between the legal norm and the constitution. Especially when it comes to a constitutional principle and even more about the democratic principle. The main function of the Supreme is to formally keep the constitution and substantially the greatest principle of this constitution, which is democracy.
What is the balance in the evaluation of mr. do?
I did not see formal defects. And I understood that the Public Prosecution Service was able to prove what it claimed from the point of view of the materiality of things, in the sense of the imputations of so many crimes committed, from attempt to coup and violent abolition of the democratic rule of law. But I’m not here as a judge.
And from the historical point of view?
It’s a milestone. It will leave a positive legacy and reaffirm to the entire collectivity that the right is the pool of everything, especially the Constitution.
There is no society without right. Law is the most necessary of the conditions of existence of a social body. The Constitution is the norm of norms, the law of laws. And the Supreme applied the Constitution well to my judgment.
Mr. Do you have any criticism of conducting the process?
To my judgment, no. The process was formally well conducted, in compliance with the rules of the process, the procedural guarantees of the parties, the contradictory, the broad defense and with technically based decisions, made in the light of day, with all transparency.
Do you believe it would have been better if the Supreme Court had judged in the plenary?
Personally, yes. I would try to affect the trial to the full, but not because the decision was made by the first class, the decision was invalid. It was not, because it is foreseen in the regiment.
But as he involved a former president of the Republic, the military military, recognized state figures, many holding several public office successively, and by the general repercussion, I would try to affect the competence of the full. With the full there are eleven pairs of eyes, not five pairs. Eleven legal experiments, eleven discussions, eleven motivations. Would come out a more socially convincing decision. But legally, it was dripped [sem falha].
The Supreme Court in recent years, under the flag of safeguarding democracy. Do the cut need to step on the brake? It would be important to close the ?
I have no opinion on this. Now, that a convincing decision will come, well grounded, as soon as possible, without prejudice to due process of law and procedural guarantees, is ideal.
The Supreme does not have to be an activist, but has to be proactive, in the sense of fulfilling its function of at least possible time, especially in troubled cases like this, which generate in the community a very large spread.
The anti-STF agenda became the flag of the Bolsanista right, with defense of impeachment of ministers. The current governor of São Paulo. Like mr. See this scenario?
In a decision involving so many important state agents is somewhat natural that there is this revolving, this agitation, this biggest ‘frisson’. Now, it is up to the Supreme, as the judiciary, always maintain the balance of things, not to be touched by this kind of provocation or animosity.
The judiciary is tanned in clashes, not with so -and -so, but social clashes from his decisions. But he is not a part, he is a judge. It should not become part at all. Continue as a judge, that is, equidistant. You need to maintain equidistance. And the supreme will know how to maintain equidistance.
X -ray | Carlos Ayres Britto, 82
PhD in Constitutional Law from PUC-SP (Pontifical Catholic University of São Paulo), was Minister of the Supreme Court from 2003 to 2012, having been nominated by Lula. He is a lawyer, opinion and legal consultant, as well as a professor at UniCeub (University Center of Brasilia). He is also president of the Superior Council of the Innovare Institute, member of the Sergipana Academy of Letters and the Brazilian Academy of Legal Letters.
