Critique of an ongoing trial: provisional notes

The old legal doctrine, which still forms part of the training culture of jurists, spoke of "public outcry," in an apparently indeterminate sense, but which aimed to create a division between "mass" and "elite." The former, it was thought, acted on emotion and without reason and should be restrained. The latter, it was thought, possessed the reason of the world and its judgment was considered balanced and respectable. 

The present moment calls for sound criticism and the overcoming of this false and prejudiced distinction. 

There is no "public" outcry, but rather pressure from groups, generally organized, but not always, in defense of certain ill-conceived, simple and direct solutions to complex problems, commonly involving the punishment of people for committing acts that, without legal definition and without a final judgment by the Judiciary, are vaguely considered criminal. 

Regarding the acts of threat against the Democratic Rule of Law and the attempted coup d'état, we clearly observe the accuracy of this criticism. There are organized groups that currently seek to undermine the authority of the law and institutions, especially the Judiciary and its highest body, the Supreme Federal Court (STF). These groups include government officials and representatives of the legislative and executive branches. These groups are linked to the international far-right movement, which today occupies leadership positions in the international community, just as it once did in Brazil and has now taken root in state, municipal, and federal positions across the various branches of government. 

These groups have been clamoring for impunity for the perpetrators of crimes against the Constitution and against democracy. And they do so illegally, pursuing their coup attempt, attacking institutions and laws. They shout for acquittal – and the interruption of the exercise of judicial, police, and other control functions, as well as amnesty. 

As for other social and political groups, their struggle is summarized in the expression "without amnesty," which expresses the historical desire of Brazilian society that the traditional members and defenders of national oligarchies—generally allied with other international ones—be no longer held accountable for the coups they attempted and, in some cases, succeeded in carrying out against democracy and its construction in Brazil. 

Very well, it is up to the Supreme Federal Court (STF), in the ongoing trial, to resist the illegal clamor and seek to hear those who conform to what the Constitution says, which the STF has a duty to firmly uphold. Thus, it is with great satisfaction that we follow the trial, which aims to preserve the Constitution and the institutions from those who sought and still want to destroy them – not only in the material sense, as happened on January 8th, in the invasions and depredations (specific and present crimes, as has already been decided), but, above all, in the immaterial sense. 

Two exemplary votes were followed, however, by the vote now being delivered, authored by the eminent Minister Luiz Fux, who, in addition to being a worthy career member of the Judiciary, is also a respected jurist in the area of ​​civil procedural law. 

Like the preceding and subsequent votes, this vote, like any judicial decision, is subject to legal, scientific, and doctrinal scrutiny. 

Thus, it must be said that the Supreme Federal Court's (STF) jurisdiction plays a prominent role in judging these crimes. Questioning it means, from a core legal point of view, compromising the fairness and seriousness of a trial that has been guided by strict adherence to the commands of the Constitution and the Law. Here, too, one is to call into question the STF's jurisprudence and its Internal Regulations, which clearly indicate this jurisdiction in relation to the acts of defendants who held public office when they began committing the crimes for which they are being judged. Similarly, the jurisdiction of the Chamber, in accordance with these Regulations and the jurisprudence of this Court, is also questioned. 

Not only that, it cannot be scientifically accepted that criminal association for the commission of crimes threatening the Democratic Rule of Law and coup d'état be considered a mere conspiracy of criminals to carry out one or a few specific acts – all of which has been more than sufficiently proven, it must be said emphatically. 

Now, what is the objective of people who associate to perpetrate a coup d'état if not to commit a permanent crime – one that is not subject to prescription or pardon – which is to dismantle the constitutional framework, repressing society and destroying institutions, through the commission of various indeterminate crimes, since they are only determined after their perpetration? Crimes against the Public Administration, against the exercise and guarantees of human rights, torture, imprisonment, kidnapping, forced disappearance, homicide, crimes against humanity, even genocide in many cases – as established in International Treaties and in the jurisprudence of Human Rights Courts – crimes that, as we know, dictatorships are prolific in committing. 

Let us await, however, the outcome of this worthy vote and the worthy judgment, for we are certain that both will firmly stand on the side of the Constitution and Justice. 

Yes, the independence of each judge is a sacred right and duty. 

But it is necessary to be attentive to the forceful movement – ​​against power, therefore against politics and against justice – that is taking place, here and now, against the Supreme Federal Court and against each of its Ministers, carried out by a strongly organized group, equipped with technical, economic and armed mechanisms, and organized internationally. 

This group seeks allies not only among the people and businesses, among those unaware and uncommitted to internal constitutional ties and the international community, but also within public institutions, seducing allies into a project of constitutional and institutional discrediting. These people end up becoming agents of a set of actions aimed not only here, in courts and legislative and governmental bodies, but also in the international arena, to establish precedents that make it possible to evade responsibility for so many who, whether or not exercising government functions, have perpetrated crimes against human rights, against humanity, and genocide with the intention of impunity. Consider, for example, what is being done against our Supreme Federal Court and the International Criminal Court; consider what has occurred in other countries where similar crimes were sought and even obtained, with the establishment of far-right regimes, replete with dictatorial acts, disguised or not. 

Every judicial disagreement is important and corresponds to an act of coherence and courage, legitimized in democratic regimes, for the sake of justice. However, none of them are exempt from legal criticism, especially when it leads to the compromise of the structures of the Democratic Rule of Law itself, so attacked today by this movement of forces with totalitarian pretensions, giving pretext – albeit unintentionally – to the irresponsible words of those uncommitted or seduced by these powerful groups. 

It is necessary to listen to and seriously criticize the actions and understanding of each of those who exercise this power of judgment, so terrible, as Montesquieu said, among human beings.