Left leads resistance to amnesty, an instrument from which it was the main beneficiary

The opposition movement in favor of the approval by Congress of a bill to amnesty those convicted of the January 8th vandalism has its greatest focus of resistance in left-wing parties and the government of Luiz Inácio Lula da Silva (PT). Interestingly, the pacification sought through this instrument provided for by the penal code – and which was one of the main themes of the speech by former president Jair Bolsonaro (PL) at the political event on Avenida Paulista last Sunday (25) – has benefited throughout history, especially the progressive camp linked to the left.

The 1979 Amnesty Law allowed thousands of Brazilians to resume their public activities with a clean record. In addition to those who had only criticized the military regime, 700 people convicted of participating in the armed struggle, with robberies, terrorism, kidnappings and murders, also benefited. The measure approved by Congress during the government of João Figueiredo, the last of the military period, paved the way for redemocratization, enshrined in the 1988 Constitution.

Amnestied individuals such as José Dirceu, Miguel Arraes, Luiz Carlos Prestes and Leonel Brizola occupied relevant positions, whether by appointment or election, including the Presidency of the Republic, in the case of Dilma Rousseff (PT), a former armed struggle.

The beneficiaries of the “other side” in turn belonged to the Armed Forces and did not play a leading role in the political opening. The agents of the repression bodies that were identified, some of them responsible for torture and murders, number 337, according to reports from Executive and Legislative committees.

In 1979, after much pressure from society, the government decided to send a proposal to Congress in June that created amnesty for political prisoners and exiles under the military regime. At the time, Brazil still lived under bipartisanship, with Arena (government party) on one side and MDB (opposition party) on the other. The project was approved by Congress on August 22, 1979. The presidential sanction of the Amnesty Law, on August 28, resulted in the immediate release of 17 political prisoners. Another 35 remained awaiting trials by the Supreme Military Court (STM).

Experts and politicians consulted by People’s Gazette point out that the left’s refusal to support amnesty for right-wing rivals is due to political expediency. Their resistance would aim to weaken bases of support, silence opposition voices and remove competitive candidates from the ballot box.

In this sense, the main target is Bolsonaro and proof of this is in slogans against judicial pardon, demanding severe and immediate punishments for those investigated for so-called “anti-democratic acts”, even before the end of the trials and the presentation of amnesty projects.

Opposition evaluates strategies to make the amnesty project viable

At the event in Paulista, Bolsonaro highlighted that whoever carried out vandalism in Praça dos Três Poderes must pay in some way, but asked the Court for “the minimum level of reasonableness”. “We have already granted amnesty in the past to those who committed barbaric acts in Brazil. Now, we are asking all 513 deputies and 81 senators for a project so that justice can be done in Brazil,” he said.

So far, the Federal Supreme Court (STF) has sentenced 101 defendants from January 8, with sentences ranging from 3 to 17 years in prison. The penalties also include payment of compensation of R$30 million, to be paid jointly (jointly) by everyone.

At least six amnesty projects are being processed in Congress for January 8th. The PL, the largest opposition party, is developing strategies to carry out the campaign launched by Bolsonaro. The first proposal was presented in October by senator Hamilton Mourão (Republicanos-RS).

In an interview with Power Diary, he complained about Moraes’ “immoderate power”, covered by the silence of the other members of the Court, and recalled that the 8 de Janeiro defendants did not have due legal process by not going through a natural judge of first instance. “When they are judged directly in the STF, who will they turn to? Goodbye? This is not correct,” he said.

The adhesion of hundreds of thousands of people to the political event called by the former president, in addition to the presence of 117 deputies, 20 senators and four governors, boosted the debate on amnesty, in parallel with the advance of convictions and the judicial siege against him and allies. To pass the project, the votes of 257 deputies and 41 senators are required. And even approved, the text will still likely face a veto from Lula and judicialization when the decision is taken to the STF. In May 2023, the Court’s plenary annulled the presidential pardon that extinguished the sentence imposed on former deputy Daniel Silveira (RJ).

Bolsonaro’s appeal for amnesty is addressed to the Lula government

Senator Eduardo Gomes (PL-TO), who was Bolsonaro’s leader in Congress, considers that the ideal would be to wait for the results of the municipal elections, when the former president should reap dividends, to advance the approval of the amnesty.

Today, the initiative would reach those convicted on January 8th and would need to provide for subsequent pardon for those who are still being investigated and will be tried, including politicians, military personnel and businesspeople. This was the argument to the contrary given even by Lula this Tuesday (27) to TV network!. “The citizens there are asking for early amnesty. I want you to have the presumption of innocence that I didn’t have,” he said.

“Parliament decides this issue (amnesty), but if the proposal comes from the Executive it would be welcome,” Bolsonaro commented to the magazine Westalthough I find it “very difficult” for this to happen.

The leader of the opposition in the Senate, Rogério Marinho (PL-RN), also considers amnesty an opportunity to “appease” Brazil, highlighting the 40 political pardon processes that took place in the history of the Republic, which allowed citizens to exercise mandates after being amnestied . Marinho emphasizes the existence of a Brazilian culture of seeking conciliation, preventing those who committed crimes from being politically persecuted, but rather prosecuted in accordance with the law.

The senator also clarified that the opposition’s support for an amnesty proposal would not exempt those responsible for proven material damage from punishment, but recalls that the popular slogan “broad, general and unrestricted” of the 1979 law was chanted in the past by Lula and his followers , who now think otherwise. “By adhering to national reconciliation, Lula would leave a mark of magnanimity in his political history,” said Marinho.

Political scientist and consultant Paulo Kramer classifies amnesty as something fundamental to rebalance political-party disputes, highlighting that the left today benefits from the decisions of higher courts and PF investigations, putting liberal and conservative rivals on the defensive.

“Unlike the 1979 amnesty, which pardoned even terrorist blood crimes, the amnesty sought by the right aims to bring justice to peaceful protesters against corruption and supporters of the right to free peaceful demonstration,” he said.

Kramer believes that Lula will only amnesty the right through a broad national civic and political movement, considering this prospect unlikely for now, given that a broad amnesty would bring Bolsonaro back to the 2026 electoral stage.

Jurists point out complexities introduced in the Penal Code

Cláudio Caivano, lawyer who represents 8 de Janeiro prisoners, highlights that amnesty plays a crucial role in the current context as a legal instrument to guarantee the freedom of those convicted. He defends the approval of PL 5793/2023, proposed by deputy Delegado Ramagem (PL-RJ), as it also addresses items from Law 14,197/2021, which included crimes against the Democratic Rule of Law in the Penal Code.

The lawyer sees “abuses” by Alexandre de Moraes related to the interpretation of these crimes, attributed to different defendants. Although the text has received praise from jurists, he considers that its approval depends on the engagement of different sectors of society.

For André Marsiglia, a lawyer specializing in freedom of expression, the debate surrounding the amnesty for those arrested on the 8th of January is valid and legitimate, as “we are undeniably faced with convictions aggravated by political factors and unresolved legal irregularities, arising from the questionable competence of the STF and suspicion of the rapporteur to examine the case”.

But he highlighted that the project is unlikely to move forward, as “it would be a provocation to the Court that the Legislature has already shown that it is not willing to do”. He recalled that amnesty has always been used in the country in the interest of the moment, as an institute that is more political than legal and with little technical rigor.

Vera Chemin, a lawyer specializing in constitutional law, considered the issue of amnesty in the current political context to be even more complex and controversial than at other times. She highlighted that the extinction of punishment through amnesty requires a law to deal with the crimes of January 8, parallel to the 1979 Law, especially after the repeal of the National Security Law in 2021, along with the inclusion of crimes against the Democratic State of Law in the criminal code.

The professor emphasized the need to evaluate the classification of vandalism crimes in Brasília as political, common or related and recalled the STF’s competence to carry out judicial control of any law, in the case of illegalities. “Given the ideological polarization of the country, judicialization is quite possible,” she concluded.