Opinion, by Michael Royster
RIO DE JANEIRO – John Le Carré, in his novel “The Honorable Schoolboy” has a minor character define democracy to a British spy: “no communists, no generals.” The Curmudgeon submits that this phrase explains, to a surprising degree, the recent 7-2 decision by the Brazilian Supreme Court (STF) upholding as constitutional a 1979 statute granting amnesty to those who committed “political or connected crimes.”
Briefly, the OAB filed a suit at the STF seeking the STF to declare that torture, murder, rape, kidnapping and similar heinous crimes, committed by the military and police during the dictatorship, were not “connected” to political crimes, therefore not amnestied.
Article 5-XLIII of the 1988 Constitution states that torture, terrorism and heinous crimes cannot be amnestied, so the question before STF was whether the 1979 statute should be interpreted as prevailing only for crimes other than torture, under the 1988 Constitution.
The reporting Justice, Eros Grau, himself a victim of serious mistreatment, spoke for the majority by holding that the Amnesty Law of 1979 was part of a larger political pact that served as a bridge to the re-democratization of the country, and that the statute must be interpreted in the context of its enactment.
In that context, the word “connected” was meant by all involved (including, then, the OAB) to apply to criminal conduct carried out by the military, police and other authorities. The statute was the fruit of negotiations as well as a tacit recognition by the military that excesses had been committed.
Presiding Justice Peluzo concurred. He held that an amnesty law must be interpreted broadly as it is an act of generosity undertaken by a civilized society. He states expressly that Brazil opted for the “way of concord” and not for the way of recrimination.
He knows, as do we all, that other South American countries have adopted a different path, one which involves finding and penalizing those who tortured and committed other heinous crimes.
But this other path is not that of Brazil. The upholding of the 1979 Act means that, if the military truly open up their files, or if the Truth Commission uncovers evidence that an individual committed torture, the individuals involved cannot be subject to criminal prosecution.
The filing of this lawsuit, and the current press to establish a Truth Commission, are indications that Brazil has indeed, after many years, consolidated its democracy. Immediately after the 1988 Constitution was promulgated, the OAB and the first democratically elected governments of Brazil could have filed the same suit and demanded a Truth Commission. But they did not. Why? The time was not right.
In addition to a fear that Brazil’s incipient democracy was still quite fragile, there was a collective knowledge that Brazil was gradually working its way out of the autocratic swamp, step by step. The 1979 statute, which amnestied communists and generals alike, was a first step along the “way of concord”.
Subsequent steps included holding indirect elections for President, permitting the eventually successful movement for direct elections, installing a constitutional convention, impeaching a President, re-electing a subsequent President, electing and re-electing a populist president.
All these steps have been grounds for violent strife in most other countries in South America, and have generally hindered their return to full democracy. But in Brazil, they have all led towards the goal of consolidating full democracy. Neither Communists nor Generals are in power here, and the 1979 Amnesty contributed to that.
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Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, moved here thirty-plus years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)