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Legal scholars split over legality of pro-Bolsonaro lawmaker arrest

. Feb 18, 2021
Lawmaker Daniel Silveira fake news probe The Supreme Court ordered the arrest of Congressman Daniel Silveira. Photo: Luis Macedo/CD/ASCOM/CN

Brazilian law enforcement arrested pro-Bolsonaro lawmaker Daniel Silveira late on Tuesday night after he published a video online verbally threatening members of the Supreme Court and advocating anti-democratic measures. The case sparked an institutional crisis in Brazil, pitting the Legislative branch against the Judiciary in a conflict over free speech, parliamentary immunity, and the protection of democracy.

In the video, Mr. Silveira called for the return of Institutional Act Number 5 (AI-5), a decree issued by the military dictatorship in 1968 which allowed the government to dissolve Congress and suspend a series of constitutional guarantees, eventually leading to the institutionalization of state-sponsored torture against the regime’s opponents.

</p> <p>The <a href="https://brazilian.report/power/2020/06/04/growing-role-military-police-jair-bolsonaro-government/">former military police officer</a> and first-term member of Congress also launched a series of verbal insults at members of the Supreme Court. Mr. Silveira called Justice Edson Fachin a &#8220;bum, cretin, and bastard,&#8221; and said he was the &#8220;cream of the crap&#8221; of the country&#8217;s highest court.</p> <p>Supreme Court Justice Alexandre de Moraes was notified of the video on Tuesday and ordered the warrantless arrest of Mr. Silveira for threatening the safety of members of the Supreme Court and violating the democratic rule of law. However, legal scholars and criminalists are split over the validity of the decision.</p> <p>Among the leading members of the legal field, all agree that Mr. Silveira&#8217;s statements constitute a crime. As one of the most loyal lawmakers to far-right President Jair Bolsonaro, Mr. Silveira has attacked the Supreme Court in the past and <a href="https://brazilian.report/newsletters/brazil-weekly/2020/04/20/bolsonaro-crosses-the-line-again-by-joining-anti-democratic-rally/">called for the return of the military dictatorship</a>. He rose to prominence in 2018 when, at a public rally, he destroyed a placard honoring Rio de Janeiro City Councilor <a href="https://brazilian.report/power/2018/03/16/marielle-franco-black-woman-favela/">Marielle Franco</a> — who had been assassinated earlier that year.</p> <h2>Do the ends justify the means?</h2> <p>The difference of opinion among legal scholars revolves around the warrantless nature of Mr. Silveira&#8217;s arrest. Criminal lawyer Augusto de Arruda Botelho — cofounder of NGO <a href="https://www.fundobrasil.org.br/projeto/instituto-de-defesa-do-direito-de-defesa-iddd-sao-paulo/">Institute for Defense of the Right to Defense</a> (IDDD) and council member of Human Rights Watch — went as far as saying that the arrest order is illegal.</p> <p>&#8220;The grounds [for arrest] have no legal support. A person can only be arrested <em>in flagrante delicto</em> [without a warrant] when he/she is caught in the act committing a crime or fleeing from it. That is not the case. The congressman was arrested because of a video published online.”</p> <p>However, while classifying the warrantless arrest as illegal, Mr. Botelho stresses that Mr. Silveira committed a series of crimes in the video in question, and &#8220;must be exemplarily punished for them.&#8221;</p> <p>Indeed, the Supreme Court decided to uphold the arrest during a sitting on Wednesday afternoon, in a rare 11-0 decision.</p> <figure class="wp-block-image size-large"><img loading="lazy" width="1024" height="572" src="https://brazilian.report/wp-content/uploads/2020/04/ggg-13-1024x572.jpg" alt="Supreme Court Justice Alexandre de Moraes. Photo: Fabio Rodrigues Pozzebom/ABr" class="wp-image-37584" srcset="https://cdn-statics.brazilian.report/wp-content/uploads/2020/04/ggg-13-1024x572.jpg 1024w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/04/ggg-13-300x168.jpg 300w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/04/ggg-13-768x429.jpg 768w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/04/ggg-13-610x341.jpg 610w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/04/ggg-13.jpg 1140w" sizes="(max-width: 1024px) 100vw, 1024px" /><figcaption>Supreme Court Justice Alexandre de Moraes. Photo: Fabio Rodrigues Pozzebom/ABr</figcaption></figure> <p>In the view of University of São Paulo law professor Floriano de Azevedo Marques, while the decision was &#8220;undeniably challenging,&#8221; the warrantless arrest was the &#8220;correct and proportional&#8221; action in light of the crimes attributed to Mr. Silveira.</p> <p>&#8220;Freedom of speech is not a free pass to commit crimes. Parliamentary immunity does not allow one to offend,&#8221; he stressed.</p> <p>Daniella Meggiolaro, IDDD vice president and head of the Brazilian Bar Association&#8217;s Criminal Law Committee, believes the arrest of Daniel Silveira was not only legal, but necessary. In her view, the Supreme Court had to respond in a severe manner due to the severity of Mr. Silveira&#8217;s statements and the history of impunity in the House of Representatives.</p> <p>&#8220;He committed a series of crimes. In the current context of inefficiency from the House of Representatives and Prosecutor General to prevent and contain attacks against democracy, Justice Alexandre de Moraes&#8217; decision was appropriate.&#8221;</p> <h2>Lawmakers between a rock and a hard place</h2> <p>Now, it is up to the House of Representatives to vote on whether to ratify Congressman Silveira&#8217;s arrest or let him off the hook. Due to Brazil&#8217;s rules of parliamentary immunity, Congress gets the final word on whether to uphold the detention of any of its members.</p> <p>Lawmakers are facing a dilemma. Ratifying Mr. Silveira&#8217;s arrest would set a precedent for the Supreme Court to interfere in Congress and detain other members of parliament. However, they also do not want to create conflict with the Judiciary. Some 10 percent of lower house members are currently facing criminal prosecution, including charges of corruption.</p> <p>House of Representatives leaders initially leaned toward voting down Mr. Silveira&#8217;s arrest order, while Speaker Arthur Lira sought a compromise with the Supreme Court. His proposal was to dish out punishment to the pro-Bolsonaro lawmaker via the House&#8217;s Ethics Committee, which could end in Mr. Silveira&#8217;s impeachment.</p> <p>However, Mr. Lira and the government appear to have had a change of heart. In a meeting between the speaker and President Jair Bolsonaro on Thursday morning, the two concluded that conflict with the Supreme Court would cause delays to the government&#8217;s economic agenda in Congress.</p> <p>As reported by Folha de S. Paulo columnist Mônica Bergamo, the government is of the opinion that the country cannot come to a halt because of Daniel Silveira&#8217;s social media rant. Thus, the House is expected to uphold the congressman&#8217;s arrest in a vote later today.

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Renato Alves

Renato Alves is a Brazilian journalist who has worked for Correio Braziliense and Crusoé.

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