Antonio Pedro Melchior launches ‘Jurists in Resistance’ – 07/24/2023 – Politics

It is always difficult to compare political and legal events distant in time, but, with some caveats and a lot of research, lawyer Antonio Pedro Melchior decided to take the risk in the recently released “Juristas em Resistência”.

The result of his doctoral thesis, the book deals with key figures in the opposition to the Estado Novo dictatorship (1937-1945), when the two most important criminal laws in the country were approved: the Penal Code (1940) and the Criminal Procedure Code (1941), both still in force.

When analyzing how that authoritarian escalation was legitimized through the legal machine, Melchior points out similarities with the military dictatorship (1964-1985) and with the Lava Jato Operation, although the comparison is far from being the main theme of the work.

“What remains [do momento em que se criaram os códigos] it’s the whole mentality that tends to devalue the role of defense, which tends to undermine fundamental guarantees in the name of a public interest in combating crime,” he says in an interview with Sheet.

Melchior’s focus, however, is not on the anti-liberal movement itself, but on its opposite; he casts a lens on lawyers who, in various ways, have tried to resist the advance of arbitration. Examples that, in his view, were valuable during the government of Jair Bolsonaro (PL).

“In my view, the set of resources put into practice to face the dictatorship in the Estado Novo was also put into practice, in a way, to face the authoritarian resurgence in the Bolsonaro government. And, when we know more about the instruments of struggle, we fight better”, he says.

In his doctorate, Mr. studied jurists who resisted the Estado Novo dictatorship, almost a century ago. Is it possible to speak of a legacy they left for later generations?
All these jurists are united by practices and ideas that lead to the strengthening of democratic freedoms, the defense of fundamental guarantees and the critique of State power. I would say that their main heritage is to talk about the need for an action plan that allows breaking an authoritarian path.

When I was doing the thesis, there were very vivid examples of a resistance being constituted to face a president [Jair Bolsonaro] who claims to love torturer.

There was the car wash, the persecution of judges who spoke out against Dilma’s impeachment [Rousseff]the death of Cancellier [Luiz Carlos Cancellier, reitor da Universidade Federal de Santa Catarina que se matou durante investigações da Polícia Federal]a parliamentary plan of authoritarian resurgence.

In my view, the set of resources put into practice to face the dictatorship in the Estado Novo was also put into practice, in a way, to face the authoritarian resurgence in the Bolsonaro government. And, when we know more about the instruments of struggle, we fight better.

For example, in 1935, Hermes Lima, in “Problemas do Nosso Tempo”, criticized integralism [movimento conservador] and the motto “God, homeland and family” – a motto that animates conservative sectors in 2018, 2019. That is, the fight against fascism that sprouted in 1935 was present when this book was written.

Mr. explores the relationship between the Estado Novo and the two main laws of Brazilian criminal law: the Penal Code and the Criminal Procedure Code. How did the authoritarian mentality influence this legislation?
The legal consolidation of the authoritarian State through the restructuring of the Code of Criminal Procedure and the Penal Code was a guideline of Francisco Campos [ministro da Justiça do Estado Novo]. He elaborates and expressly introduces this orientation into the national legal debate.

For him, Brazil should constitute a strong and anti-liberal State, and it is with this vision that he created the cabinet to produce the legislation of the Estado Novo. This has been on a continuum since 1934, with Vicente Rao [ministro da Justiça de 1934 a 1937]then with the National Security Act [de 1935].

They provided intellectual instruments for a type of process based on a doctrine in which individual rights are submitted to the State’s logic of salvation.

The idea of ​​national salvation at that time was very much fueled by anti-communist rhetoric. Does it appear in these laws?
The Criminal Procedure Code is a procedural subsystem of political repression. And it is important to highlight this discourse of Brazilian authoritarianism that calls for catastrophism. You take a situation of social upheaval, something that really exists in society –anti-communism or anti-communist imagination—, and you elevate it to a power that starts to justify exceptional practices. This was present throughout the structure of the code.

For example, there is a great concentration of powers in the hands of the judge, nullities come to be perceived as something deficient in the State’s repressive energy, low relevance is given to the rights of defense.

Considering some of these characteristics, Mr. makes comparisons between judgments in the Estado Novo, in the military dictatorship and in the Lava Jato Operation. In what sense are they really comparable?
We always have to be very careful when putting such distant political and legal events on the same table. But what I set out to do was identify a gear of politically oriented judgments.

I was able to perceive a wide margin of flexibility by those in power to identify dissident behavior, conduct defined as being at odds with the interests of the State.

Furthermore, they are trials based on a confession policy. In the Estado Novo and in the civil-military dictatorship, torture was precisely for that. And it was a process that was carried out very quickly, that is, a semblance of judgment.

I would also say that Lava Jato is also a movement in which it is believed that good men could save Brazilian society from corruption, through acts even contrary to the law – in this sense, it also has an authoritarian salvationist appeal.

Does anti-corruption discourse replace anti-communist rhetoric?
The anti-corruption discourse enters into this very common narrative structure of Brazilian authoritarianism. He comes in a salvationist rhetoric, that, to face an imminent danger, to face this entire rotten system, exceptional measures become necessary.

How much of that authoritarian mentality that permeated the creation of the two codes survives today?
The criminal justice system builds on an 800-year-old inquisitorial tradition. It is a structure that confuses the performance of the judge with that of the prosecutor.

What remains is the whole mentality that tends to devalue the role of defense, which tends to weaken fundamental guarantees in the name of the public interest in combating crime. See the difficulty of the debate around the judge of guarantees, the resistance of the judicial elite to a model of greater control of judicial decisions.

Why has Brazil never carried out a profound reform of this penal legislation?
My hypothesis is that Brazil has difficulty, due to its own institutional formation, to produce structural ruptures. It is a society formed on the basis of consensus among elites.

We have opted for very partial reforms. We don’t have the same code as in the 1940s, identical. But the reforms, even when they intend to reinforce freedom, end up being co-opted by the authoritarian mentality of the judges.

Precautionary measures, for example. In 2011, a law on alternative measures to imprisonment was passed. The effect was that not only did the number of pretrial detainees increase, but also many people who did not have an alternative measure enacted now do.

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X-ray | Antonio Pedro Melchior, 39

Doctor in law from the Federal University of Rio de Janeiro (UFRJ) and member of the board of directors of IBCCrim (Brazilian Institute of Criminal Sciences), he is the author of “Juristas em Resistência – Memórias das Lutas contra o Autoritarismo no Brasil” (Countercurrent, 484 pages, R$ 84)