Bandeira de Mello: Bolsonaro offends the law to the fullest extent possible.

From Rede Brasil Atual - President Jair Bolsonaro's order to the Ministry of Defense to provide "due commemorations" for the 1964 coup continues to have legal and political consequences. The Federal Public Prosecutor's Office (MPF) has begun recommending to the Armed Forces throughout the country that they not promote such celebrations. In an interview on a TV program this Wednesday (27), Bolsonaro stated that there was no dictatorship in the country and that the military regime only had "minor problems", like in a marriage.

"I think it's impossible to attack Brazilian law more violently than by saying you want to celebrate the violation of that law," says jurist Celso Antônio Bandeira de Mello. According to him, one of the most important voices in the Brazilian legal field, the President of the Republic committed a crime of responsibility by ordering the commemoration, with the caveat that he would have to re-examine the Constitution and legislation more thoroughly to provide a more well-founded response.

On Tuesday (26), relatives of victims of the dictatorship and the Vladimir Herzog Institute had asked the Supreme Federal Court (STF) for an injunction against the commemorations. In turn, aware of the negative political repercussions of his attitude, Bolsonaro backtracked yesterday and denied that he had ordered the celebrations. "It was not to celebrate, it was to remember, to review what is wrong, what is right and to use this for the good of Brazil in the future," he said.

Bandeira de Mello states that he remains as perplexed by Bolsonaro's election as he was days before the election, when he declared that the most difficult thing to understand was the fact that the people elected him. "Subsequent events have proven that I was quite right to be stunned," he observes. "His government practically doesn't even exist. It's a catastrophe. Everyone sees that this man is incapable of governing."

Although he claims he doesn't expect "much" from the Judiciary, Bandeira de Mello hopes that Lula will be acquitted in the higher courts and that the Supreme Court will put an end to the issue of imprisonment after conviction in the second instance, in a trial scheduled for April 10.

"Since Lula is imprisoned before the final judgment, I believe there is no other way but to release Lula and all the others who are in the same situation." For the jurist, being the guardian of the Constitution, the Supreme Court "will have to fulfill this role if it wants to proceed with what is its duty."

Bandeira de Mello spoke to RBA by phone.

By ordering the commemoration of the 64 coup, did the president commit an impeachable offense?

I think so. Because he cannot celebrate a violation of democracy, of the human rights included therein. To me, this is an act that violates the law.

According to one interpretation, the action does not constitute a crime of responsibility, which could lead to impeachment, but it would be a crime of administrative misconduct.

I would have to examine the issue more closely to give you a more informed answer. But, in my view, it's difficult to imagine a greater violation of the law than praising the violation of the country's legal system. I don't see how it's possible to violate it more seriously than that.

Former minister Eugênio Aragão believes there has been a crime of responsibility. Professor Pedro Serrano believes it is a crime of administrative misconduct.

I greatly respect Pedro Serrano's opinion; I consider him a man of the highest caliber, and in my opinion, the greatest Brazilian constitutional scholar at the moment. But I disagree with him. I think it's impossible to attack Brazilian law more violently than by saying you want to celebrate a violation of that law.

The interpretation of law is very subjective, isn't it?

Look, I think the law isn't that subjective. I recognize that there's room for disagreement in certain matters within the law. But, in my view, there's no room for it in this matter. Anyone who celebrates a basic violation of the Constitution, anyone who celebrates a military coup, is offending the law to the fullest extent possible, in terms of words, of course, because anything more than that can only be done through actions, right?

If this constitutes an impeachable offense, could it give rise to impeachment?

Of course it could, if it's an impeachable offense. I would have to re-examine the (constitutional) text, but I think I'm right.

President Jair Bolsonaro said today (yesterday) that there was no dictatorship and that the military regime only had "minor problems"...

It's not even worth commenting on. But he doesn't worry about it. He's not a democratic man. This man was a congressman several times, but he was one of the least favored congressmen. I have a lot of difficulty understanding how this man ran for office and was elected. I confess, in all sincerity, that I have a lot of difficulty understanding. If he were a great congressman, a man of notorious positions... But he wasn't anything like that, he was an absolutely obscure congressman. Behind this there must be something that I don't know what it is... It's not possible for the most obscure of congressmen to run for president and win the elections. And he won well. It's hard to understand.

In the week of the election, you said you thought he would be elected and that it "astonished" you that the people would elect him...

I remain as perplexed as I was before. I just think that successive events have proven that I was quite right to be stunned. Because his government practically doesn't exist. It's a catastrophe. Everyone can see that this man has no capacity to govern. None whatsoever.

What do you expect from the Judiciary going forward, in this context?

I never expect much from the Judiciary. I regret to say it, but I don't expect anything. I used to expect a lot from the Judiciary. Today I don't expect anything anymore. Unfortunately, our Judiciary doesn't show the dignity I expected from it. It used to be extremely respected.

One thing that really struck me when I visited Argentina was that while we Brazilians had great confidence and hope in the Judiciary, they Argentinians had none. I found that strange, but today I think the Judiciary no longer offers the same security it used to. Probably the opinion of the vast majority in the legal field is the same. It's not that I no longer believe in the Judiciary. In a few days, Lula will be judged.

What do you expect?

I hope for acquittal.

There will be a trial in the Superior Court of Justice (STJ) and, in the Supreme Federal Court (STF), the issue of second instance appeals. These are two possibilities...

There are two options. I believe that, according to the constitutional terms, it's expressly written in the text that no one can be imprisoned except after a final and unappealable judgment. Everything that has been happening, the imprisonment without a final and unappealable judgment, is an obvious violation of the Constitution, in my understanding. There's no other way to interpret it. I think that now, in my view – which may be wrong, of course – there will be a correction of this line, and the Constitution will simply be followed. That is, only after a final and unappealable judgment can someone be imprisoned. Since Lula is imprisoned before a final and unappealable judgment, I believe there is no other way but to release Lula and all the others who are in the same situation.

Which are many thousands...

Many. It's a very large number of people who have been convicted without the matter having reached the final instance. Read the Constitution; it explicitly states that someone can only be sentenced to prison after a final and unappealable judgment has been reached.

It seems it will depend on Rosa Weber's vote...

I don't know whose decision it will depend on. According to my last calculation, there was a one-vote advantage in upholding the Constitution. But who can guarantee that this will continue to be the case? So, we remain hopeful, although my hope is that Lula, like all the others, will be released if they were imprisoned before reaching the final instance. And this is coming to an end. It's going to be on the 10th, isn't it?

But first, the Superior Court of Justice (STJ) must rule on Lula's own appeal.

It's possible. I'm not very impressed by it because it will have to be judged by the Supreme Court, and the Supreme Court is the highest court in the country. I hope it puts the Constitution in its proper terms. I even believe that, I won't say I just hope, out of a wish. No, I believe it. The Supreme Court is the guardian of the Constitution, and it will have to fulfill that role if it wants to proceed with what is its duty.