Brazil’s O Globo newspaper reported on Monday that leftists in the nation’s Congress are planning to seek ways to limit conservative President Jair Bolsonaro’s pardon powers after he used them to free lawmaker Daniel Silveira, who the nation’s top court sentenced to eight years in prison last week for political comments broadcast on Youtube.
Silveira – a first-term member of the Chamber of Deputies, the lower house of the Brazilian Congress – published a video on the platform last year condemning the members of the Supreme Federal Tribunal (STF), the country’s equivalent of the Supreme Court, personally insulting them and calling for their replacement on the bench. STF Minister Alexandre de Moraes (STF judges are referred to as “ministers”) ordered his arrest on the grounds that the video threatened him and others on the bench, launching a protracted legal proceeding that concluded last week with de Moraes proclaiming that “the Constitution does not guarantee freedom of expression as a protective shield for … speech against institutions” and expelling Silveira from Congress.
Bolsonaro overturned Silveira’s conviction on Friday, preventing the STF from forcing him to serve his eight years and nine months in prison and paying a large fine for criticizing it. It also should allow him to speak on social media again, which the STF ruled he should not legally be allowed to use. Bolsonaro also theoretically restored Silveira’s right to run for office.
Silveira has not commented on the conviction or Bolsonaro’s pardon at press time, aside from a post on Twitter reading, simply, “testing,” which STF rules do not allow Brazilian nationals to see.
Bolsonaro’s pardon – not the conviction of someone with legislative immunity to nearly a decade in prison for political speech – outraged Brazilian leftists. O Globo reported on Monday that Congress has repeatedly proposed bills to contain prior president’s pardon powers that could now be revived to strip Bolsonaro of his executive powers. Leftist lawmakers, it claimed, are working “behind the scenes” to declaw presidential pardon powers.
At least one lawmaker, Senate President Rodrigo Pacheco of the Social Democrat Party (PSD), has openly discussed limiting presidential pardon powers.
“Certainly, this situation, in these circumstances, generates a feeling of impunity and weakens the country’s criminal justice system,” Pacheco said in an interview on Friday, calling the pardon “unprecedented and unusual.” Pacheco responded to an inquiry on potential Congressional action to stop similar pardons in the future by saying, “there will certainly be initiatives in this direction” and proclaiming lawmakers need “to establish better criteria for the president to use this institution.”
He nonetheless admitted that Bolsonaro acted with “constitutional legitimacy” in freeing Silveira.
“I cannot deny that there is constitutional legitimacy and the existence of this institution [the pardon] in the Constitution, based on this legitimacy of the president of the Republic,” Pacheco conceded. “Now, is it fair, reasonable, balanced in this specific case? In fact, maybe not.”
O Globo noted that, predictably, the STF – which already enjoys sweeping powers way beyond those of the U.S. Supreme Court, such as being able to order violent police raids on citizens accused of “fake news,” which is not a crime in Brazil, and hosting first-stage trials of criminal cases against individuals – would “welcome” limiting Bolsonaro’s pardon power. The newspaper claimed that STF members felt that fully overturning pardon powers would be “falling into a trap” and causing too much civil unrest, so it is instead supporting legislative avenues to “establish stricter rules.”
The newspaper noted that “at least 19 bills in the House and Senate” currently tabled could be used against Bolsonaro.
“According to a survey carried out by GLOBO, five of them would affect or prohibit the pardon granted by Bolsonaro to Daniel Silveira, if they had already become law,” the outlet reported, noting that some specifically would ban using a pardon for a president’s ally. Silveira is a conservative and vocal Bolsonaro supporter.
The STF formally convicted Silveira of “intent to impede the free exercise of [judicial] powers” and “judicial coercion,” as well as informally accusing him of inciting violence against the court. Silveira was first arrested in February 2021 and spent 11 months in prison despite possessing legislative immunity, which in theory should protect his political speech beyond that of an ordinary citizen. His crime consisted of a profanity-laced tirade posted on Youtube calling out various STF ministers by name, including Alexandre de Moraes, for being “not good for shit for this country” and calling for the removal of all 11 ministers from the bench. In a segment that the STF repeatedly highlighted as the most offensive in the video, Silveira said he was imagining one of the ministers “taking a beating,” but insisted he was “just imagining” and not “fomenting violence.”
De Moraes insisted in his ruling last week that Brazilian law only protects “freedom of expression with responsibility,” granting the STF sweeping power to decide what is or is not “responsible” speech. Criticizing the STF proved “irresponsible” for the court.
“Freedom of expression exists for the manifestation of opposing opinions, jokes, satires, for wrong opinions, but not for criminal opinions, hate speech, an attack on the democratic state of law,” de Moraes, who ordered a violent raid on a Youtube comedian for reportedly supporting Bolsonaro, said last week.
“This Court and the world in general agree that freedom of expression is not an absolute right and must be balanced with other values and constitutional rights,” another STF minister, Luís Roberto Barroso, said during the Silveira ruling.
In contrast, Bolsonaro wrote in his presidential decree pardoning Silveira that “freedom of expression is an essential pillar of society in all its manifestations.”
“It is very easy to say, ‘Daniel Silveira, take care of your own business. I am not going to say that,” Bolsonaro said during a live online broadcast to announce the pardon. “I was a Congressman for 28 years and, in that House, with all its possible defects, that is where the essence of democracy is, too.”
The STF has the power to review the constitutionality of Bolsonaro’s decree against its own ruling and is expected to do so.
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