Torres may have committed malfeasance by not disclosing the draft of the coup, experts say.

Conjur  - Former Justice Minister Anderson Torres may have committed malfeasance by failing to disclose the existence of a draft decree declaring a state of defense aimed at altering the outcome of the 2022 presidential elections, according to experts consulted by the online magazine. Counsel. 

In his Twitter profile, Torres said that the draft decree was in a pile of documents that was going to be shredded. He also stated that Justice Ministers receive various proposals that will not necessarily be put into practice.

He did not, however, say who authored the proposal, nor whether then-President Jair Bolsonaro (PL) was aware of its contents.

The proposed decree would establish a state of emergency at the headquarters of the Superior Electoral Court and seek to annul the election won by Luiz Inácio Lula da Silva (PT). The text was found at Torres's home during a search and seizure operation by the Federal Police. 

The document stated its objective was "to guarantee the preservation or prompt restoration of the fairness and correctness of the 2022 presidential election process, regarding its conformity and legality, which, if disregarded or ignored, represent a serious threat to public order and social peace." The term of this exceptional measure would be 30 days, extendable once for an equal period.

Experts heard by Conjure They claim that the mere existence of the document in Torres's house could constitute at least one crime: prevarication. This is because the former Minister of Justice failed to alert the competent authorities about the proposal.

"The simple fact that he (Towers) "Having that draft in his residence could constitute the crime of prevarication. Because, if he received that draft, he should have immediately taken steps to prevent any fraud and to hold the person who sent him the document accountable," he states. Caio Morau, lawyer and professor at the Catholic University of Brasília.

If it is proven that the former minister acted in favor of the decree, he could be held accountable for attempting, through the use of violence or serious threats, to abolish the democratic rule of law, says the professor.

Since a state of defense has never been declared in Brazil since the 1988 Constitution, there is not much jurisprudence on the subject. Article 136 of the Constitution states that the President of the Republic may declare a state of defense "in restricted and determined locations." That is, there is a geographical delimitation, unlike a state of siege, which can encompass the entire Brazilian territory.

On the other hand, there is no exact definition of what "restricted and specific locations" mean, nor whether the measure can only cover the premises of a court, as proposed by the decree found in Anderson Torres's house.

According to Morau, the most common interpretation of the provision is that the state of defense can encompass certain municipalities, states, or regions, but not courts.

"There is no commonly found, more flexible interpretation that could encompass a court. However, because the wording does not specify what the restricted and determined locations would be, this interpretation of a state of defense being decreed in a court could eventually be accepted, despite being highly unorthodox. Knowing the circumstances under which this document was drafted, we can see that there is a clear coup-like objective and that such a decree against a court would be absolutely unconstitutional."

He offers the same interpretation regarding the possibility of declaring a state of defense against the election results. "The objective of a state of defense is to restore public order or social peace. It is evident that the result of a regularly conducted election would never allow for the declaration of a state of defense."

State of defense

The constitutionalist Vera Chemim It asserts that the state of defense exists to preserve the democratic rule of law, not to attack it. Thus, the procedure could not be used against a court or the outcome of elections, but only to curb situations of serious crisis arising from institutional instability or large-scale natural disasters.

"When a state of emergency is declared, the intention is to protect the State and democratic institutions, not to attack an institution that forms part of the structure of one of the public powers, which is the Judiciary, which is why the alleged draft examined here would be totally unconstitutional."

Vera, however, does not consider the mere existence of the draft to constitute a crime. According to her, even if the decree were to be published, it would depend on the approval of Congress.

"Even if the existence of that draft were interpreted as an 'attempted coup d'état,' as stipulated in article 359-M of the Penal Code, the presence of violence or serious threat would be necessary—core elements of the criminal offense that are not found in this alleged attempt to impose a decree aimed at establishing a State of Defense."

"Even if one were to consider the possibility of classifying it as an act of administrative misconduct, in the case of Anderson Torres, or a crime of responsibility, in the case of Bolsonaro, these crimes would not have been committed," he continues. 

The jurist Lenio Streck He disagrees. According to him, Torres confessed to having committed malfeasance by stating on Twitter that he knew about the document and intended to destroy it, instead of seeking accountability from whoever produced the draft. Also according to Streck, there are indications that there was an attempted coup.

"Torres confesses to prevarication and destruction of evidence by saying that he knew about the document and wanted to destroy it. The draft deals with a coup d'état that was ready to be carried out. It even has a date: after December 12th. It has cat fur, a cat's tail, a cat's whiskers. If it's not a male cat, it's a female cat."

According to him, it is not possible to declare a state of emergency against a court or the results of elections, which indicates "the low level of legal training of the coup plotters."

"The advisor must have completed a correspondence course in law, using pre-digested and illustrated Constitutional Law textbooks. I've always warned that this type of education isn't even suitable for evil. Creating a commission within the framework of the state of defense decree, with the participation of the Brazilian Bar Association, the Public Prosecutor's Office, and the Judiciary, will lead Brazil to win the 'Ig Nobel Prize'," he says.

Subscribe to 247, Support via Pix, Subscribe to TV 247, in the channel Cuts 247 and watch: