Moro uses AI-5 against Lula

"Either dialogue or dictatorship" trumpeted the headline of Folha de S. Paulo on July 10, 1968, reproducing a statement by the Minister of Labor, Jarbas Passarinho, following the student protests against the 1964 military coup, culminating in the March of the 100 in Rio.

Five months and three days later, Passarinho, along with the other ministers who betrayed democracy, would sign the infamous AI-5, "throwing scruples to hell," as he said, and intelligence, as was later seen, because the authoritarian weapon aimed to confiscate mandates, assets, and rights of civilian citizens, like himself. The 1967 constitution had not been revoked, but the general of the time governed not based on it – which was already a product of the military coup – but on the Institutional Acts, which were even more severe.

On October 5, 1988, Institutional Act No. 5 (AI-5) fell three years after the end of the dictatorship and was replaced by Article 5 of the new constitution. However, its essence—the clause guaranteeing the presumption of innocence until a final judgment—was suppressed by a temporary decision of the Supreme Federal Court (STF) plenary on February 16, 2016, which remains in effect today. Article 5 was not removed from the constitution, nor could it be, but it is no longer considered in its entirety.

The suppression of the presumption of innocence determined by the Supreme Federal Court (STF) gave rise to judicial anything-goes practices and the resurgence of the spirit of Institutional Act No. 5 (AI-5) in some sectors of the Judiciary.

The similarity between the "commandments" of AI-5 and those of Lava Jato is striking.

One of the objectives of the dictatorial Act was also to fight corruption (considerations), to revoke, suspend mandates and arrest politicians (article 4), to confiscate their assets (article 8), always "without the limitations foreseen in the constitution".

Everything could be done then, as long as it was "in the interest of the Revolution." Everything can be done today, as long as it's "in the interest of Lava Jato."

But the biggest point of intersection between AI-5 and Lava Jato lies in article 10: "The guarantee of habeas corpus is suspended in cases of political crimes, crimes against national security, economic and social order, and the popular economy."

It was probably the article that formed the basis for Judge Sérgio Moro's decision to completely unconstitutionally and authoritatively prevent the execution of the release order for former President Lula.