The subpoena by the Federal Police of 80 military personnel, including the highest ranking ones, in the investigation of 8/1 breaks a paradigm on Military Justice. It is expected that there would be the stage for any investigation involving military personnel in service. Aguirre Talento’s report on UOL informs exclusively that this will not happen.
There are 80 subpoenas already issued, including generals who commanded the Presidential Guard Battalion and the Institutional Security Office. The general who headed the Planalto Military Command is one of those subpoenaed, something unthinkable until a few months ago.
There is, in the legal environment, a discussion about the structure of the Military Justice itself. Unlike what many people think, it is not a legacy of the military dictatorship or a jabuticaba tree. Courts martial exist in many of the major democracies, and that makes sense.
Military have very particular structures of hierarchy, discipline, rules and ethics. They also have a very specific job, which involves rights and duties that are profoundly different from those of ordinary citizens.
The Armed Forces and military police are the armed arm of the State, they are licensed to apply violence in compliance with this obligation. In theory, it is a specific dynamic that needs to be analyzed by those who really dominate this reality in cases of criminal trials for acts committed in the exercise of the function.
Cases involving abuse of military police officers in action are the best known to the population and are usually the focus of discussions on the structure of Military Justice itself. There are sectors that complain about corporatism and favoritism, about milder penalties because the entire system is controlled by the military themselves. Rumorous cases of criminal deaths and massacres dominate this debate.
One hypothesis is that taking everything to the common court would bring penalties closer to those that society craves, since there would be no corporatism. The Jury Court, in which citizens are judged by their peers, is often cited as the most appropriate forum for penalties consistent with the wishes of the population.
It makes sense in theory, it remains to be seen how it would be in practice. Would ordinary citizens be willing to vote for strong convictions of military police and members of the Armed Forces or would they fear retaliation? To what extent would the reasoning that “a good criminal is a dead criminal”, present in society, have an impact on these judgments? We do not know.
The judgment of former President Jair Bolsonaro is also frequently cited, especially after the publication of the book “O cadete e o Capitão”, by the late journalist Luiz Maklouf de Carvalho. He had unprecedented access to the recordings of the trial and says that the press was judged more than the defendant.
Jair Bolsonaro’s lawsuits for insubordination and terrorist threat were against the backdrop of publications by Veja magazine. It was contaminated by friction between the military and the press at the end of the dictatorship. We already know the outcome, acquittal by 9 votes to 4.
At that time, insubordination already earned fame, even among the highest ranks, something that seemed unthinkable. Today, in the age of social media, police and military insubordination often pays political dividends. We have a crop of deputies who were regulars at disciplinary courts.
It seems that the Military Justice still cannot solve this knot. One expectation now is that the entry of the Federal Police into the investigation of military personnel on 1/8 will change this equation. It would be a way to avoid corporatism and interrupt the process of politicization of State functions.
We still don’t know how this will play out. The Federal Police may find it easier and freer to investigate, but we will only be sure at the end of the investigations. Civil courts may have less politicized penalties, but we will only know if this will happen at the end of the process.
All this movement will inevitably be captured by another discussion of the Judiciary, the very existence of Military Justice. The principle of economy is often cited in this debate, it would be a monumental cost reduction.
It is a crucial moment for the Brazilian judiciary. Having or not having courts-martial is a strategic decision for the State, with long-term impacts. The structure, scope and form of action of these courts as well. This discussion will inevitably be captured by the immediate political debate, polarized in an absolutely toxic way.
It remains to be hoped that we will be able, in the midst of all this, to use our brains more than our livers.
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