The criminalist lawyer Antônio Carlos de Almeida Castro, known as Kakay
This is a story that has been told and retold, but since it never ends, it needs to be taken up again. It is about the separation of powers of the Republic and the indispensable harmony between the Executive, the Legislative and the Judiciary. From respect for constitutional limits to democratic coexistence.
In recent times, with a fascist and limitless Executive, we have experienced difficult times in which the Legislative, in large part, was co-opted and did not act with the fullness of its powers, lacking in Brazil. It took a strong and courageous judiciary to maintain institutional stability. History will do justice, especially to the Federal Supreme Court and the Superior Electoral Court. Democracy resisted due to the courage of some ministers of the Superior Courts, who had the support of their peers. The Constitution prevailed and the election and inauguration of a Democrat made the country follow the tracks of normality.
A good part of organized society also aligned itself with the Constitution and, each within the limits of its possibilities, was shoulder to shoulder with the Judiciary in a resistance that allowed the country to come out of chaos and breathe. It was a tough time, in which there seemed to be a wall erected in the middle of a dense toxic cloud that took away our vision and air. A wall that separated the limits of rationality and civilizing precepts, prioritizing barbarism, violence and hatred. A society in which humanistic principles were solemnly despised and imbecility took on an air of unparalleled importance. The division of the people was a power strategy. And ignorance was greeted among Bolsonaristas with a boast that was frightening. The pride of being shallow, imbecile and uncivilized was noticeable in the slightest gestures of petulance and arrogance. And, as Nelson Rodrigues taught us, they ended up imposing themselves, because there were so many of them.
With the defeat of fascism at the polls and the inauguration of President Lula, the country breathed. The resistance of institutions and society to the January 8th coup seems to have consolidated our young Democracy. There is still a lot to strengthen so that we have real stability, as fascism has set its claws in a considerable part of the country. There is a kind of sect that insists on sinking its teeth into an unwary, uncultured mass eager to be guided, even if it goes into the abyss. They are blind, deaf and only use their voices to spread the blow to the democratic rule of law.
But the prompt response to the day of infamy, when democratic rupture was attempted, made each of us even more responsible for maintaining stability. Just as we were on the side of the Supreme Court, criticizing part of the National Congress and facing the Executive head on, it is imperative to point out, now, more than ever, the undemocratic consolidated excesses in any of the powers.
Hence the pressing need to return to the topic of the Guarantee Judge.
When the Bolsonarism errand boy took over as Minister of Justice, as a reward for taking Lula out of the 2018 presidential race, he presented the so-called Anti-Crime Package. A heap of punitive and misaligned proposals that have not been submitted for discussion within society, academia or specialists. He judged the former judge to be able to do whatever he wanted, accustomed to his superpowers in a certain court in Curitiba. He sinned by ignorance, arrogance and lack of knowledge of how the Powers work in a Democracy. He was arrogant with the then President of the Chamber, Rodrigo Maia, who did not bow to the impolite and even aggressive way in which he was treated. And his response was institutional: on March 18, 2019, the creation of a study group to analyze the so-called Anti-Crime Package was made official in the Chamber of Deputies. With an initial term of 90 days, the group ended up lasting 230 days, with 4 extensions, until it approved, on 10.30.2019, an alternative project.
A good part of this group formed by Rodrigo Maia met, during the 230 days, at least once a week in my house, in Brasília, to discuss the most diverse themes. There were approximately 10 or 12 deputies and 5 or 7 criminal lawyers. One of the most important issues for the group was the institution of the Juiz de Garantias. For me, the greatest achievement in the criminal area and that would prevent, or make it very difficult, the presence of biased judges, coup plotters, avengers and politicians like the former judge and former Minister of Justice and his followers.
The idea was, first, widely debated in the work group and in society. Numerous public hearings were held with experts in the House and Senate. The fruitful and mature discussion led to the Project being approved on 12.4.2019 in the Chamber of Deputies, and on December 11 of the same year in the Federal Senate. As the matter had been exhaustively faced, the approvals in both Houses came with expressive votes. It was, we thought, the strengthening of Democracy, the force emanating from the popular will. Big mistake.
As at the end of 2019 the former minister had already fallen out of favor with the then President Bolsonaro, the Project was not vetoed, as was the wish of the former judge who saw his Anti-Crime Project be completely disfigured. On 24.12. 2019, the President of the Republic sanctioned it. The Anti-Crime Law would come into force on January 23, 2020, according to the popular will represented by the votes in the National Congress. This is how the democratic rule of law is strengthened. Especially in cases where both Houses, the Chamber and the Senate, have the grandeur to hold public hearings to hear specialists.
One day before the law came into force, on 22.01. 2020, a minister of the Federal Supreme Court, in a monocratic decision, alone, suspended the effectiveness of the implementation of the Judge of Guarantees. A decision that prevented the entry into force of a law voted by both Houses of Congress. It seems evident that the Supreme Court, in extremely exceptional situations, can grant an injunction of this size. Because, it was a ad referendum decision
of the Plenary.
It turns out that 1,135 days have passed and the monocratic decision is still in force without having been submitted to the Plenary of the Court. A real slap in the face of the National Congress. In this case, we have a typical example of an order that revoked the popular will and silenced the Chamber and the Senate. And that it hurts the balance between the Powers and that it would demand from the deputies and senators a response to the height. In a self-respecting Democracy, democrats have a duty to support each of the Powers when they are entitled to support. But they have an obligation to point the finger at abuses, omissions and the lack of institutional vision of any representative of the Three Powers.
The Supreme has already moved and recently approved Article 240 of the Internal Regulations, which establishes that the injunction will be in force for a period of 90 days, extended for another thirty days, if the accumulation of service justifies it. It’s been a long time, but it’s already progress. We will monitor compliance with the Rules and collect. Congress remains silent without respect. If the Legislative Houses do not even guarantee compliance with the laws they pass, it is because Democracy is so fragile that it opens gaps for attempts to break institutionality, as occurred on January 8th.
“The Federal Supreme Court can do a lot, but it cannot do everything, because no power can do everything.”
Phrase spoken by me, from the Tribune of the Plenary of the Supreme Court, during the judgment of the Presumption of Innocence.
Antonio Carlos de Almeida Castro, Kakay