Temer, PEC 55, and the Uncertain State of Transitional Justice in Brazil: An Interview with José Carlos Moreira da Silva Filho

Interview with José Carlos Moreira da Silva Filho, Professor in the Criminal Science Graduate Program at Pontifícia Universidade Católica do Rio Grande do Sul – PUCRS; Former Vice-President of the Commission on Amnesty in Brazil; Productivity in Research Scholarship Recipient from the CNPq. [josecarlosfilho@terra.com.br]. The interview was conducted on 26 November 2016 in Belo Horizonte by Cath Collins, Professor of Transitional Justice, Universidad Diego Portales, Chile  and Ulster University, Northern Ireland; founder member of the Latin American Transitional Justice Network. We thank José Carlos Moreira da Silva Filho and Cath Collins for their permission to publish the interview.


Q How has the aftermath of the impeachment [on 31 Aug 2016] of Brazilian president Dilma Rousseff (2011-2016) affected the environment for human rights issues in general?

The impeachment represented an institutional rupture that looms large over all subsequent human rights and transitional justice (TJ) debate in Brazil, because the motif of institutional rupture reminds everyone inevitably, and powerfully, of 1964 [the military takeover that initiated the 1964-85 military dictatorship]. It had become an article of faith after the 1985 recovery of democracy that the new institutions were robust, that electoral results would be respected, and so on. But then along came the 2014 elections … an aggressive campaign, with outright misogyny, the unleashing of accusations and counteraccusations without proof; betrayals, rumours. We saw the reappearance of some elements that were also around in ’64: a white elite with a powerfully conservative discourse in parliament, the press, and the judiciary; and the influence of the US on [a range of ongoing corruption investigations or scandals] – the lavajato investigation, the Petrobras case, and so on.

What we’re seeing now, some months on, is an illegitimate onslaught by the government against human rights issues and protections, wrapped up in the language of austerity. A recent bill [bill ‘PEC 55’, passed in the Senate in mid December 2016] completely freezes social spending, which has been the lynchpin of all the gains in health and education, ie in social rights, of recent years. But there’s no mention of any alternative ways to reduce public spending: reducing judicial or civil service salaries, for example. Human rights had been given a dedicated ministry, but in September 2016 that was all absorbed into the Justice Ministry and downgraded to sub-secretariat status only. Its human rights councils, whose members were mandated to travel round the country, had their travel budget withdrawn, which to all intents and purposes put an end to their work.

Q How have transitional justice issues, in particular, been affected?

The Amnesty Commission, which recognises former political prisoner status and extends symbolic and sometimes economic reparation to survivors on behalf of the state, should have been continuing with hearings, regional public assemblies (‘Caravans’) and so on. But all of that is on hold. The Minister responsible for it – now the Justice Minister – has powers to change all the senior administrative/ civil service staff, and also to unilaterally name or remove Commissioners. Previously, that was always done after consulting with human rights organisations and relatives’ associations. There had been a small amount of turnover of Commissioners, but always voluntary, and usually for family or professional reasons – it’s an unpaid role. But when the impeachment was confirmed, on 31 August 2016, six Commissioners had already resigned, in protest. The next day, the Minister removed, at a stroke, seven of the 16 who remained – including me, as vice-president. I found out through a notice in the official newspaper: that’s still the only official communication I’ve had or seen about it. The ones who were removed that day had mostly joined around the same time, around 2007, when Paulo Abrao [now General Secretary of the Inter-American Commission on Human Rights] was president of the Commission. Twenty new Commissioners have been named under the new president, to replace those seven who were removed, plus the six who had resigned earlier. Almost all of the new people have no background in human rights. Many of them are legal scholars, best known as associates or followers of a conservative jurist named Manoel Gonçalves Ferreira Filho, who supported the ’64 coup and held various official posts under the military regime. One of the new commissioners has even been strongly rumoured to have been an informer for the secret services during that period. The new commissioners were supposed to start work on 2 September 2016, but they haven’t held or scheduled any meetings yet [four months on]. What we know is that many of them are keen to ‘defend state coffers’, by, at the very least, reducing the amounts of economic reparations that the Commission awards to survivors in the cases that it acknowledges.

Q Has there been any reaction or resistance from within human rights circles?

Human rights groups have made their opposition known, but there’s been no response from the ministry. Specifically, there’s a ‘Committee of Friends’ that was set up to support the national Political Amnesty memorial that’s supposed to be being built, here in Belo Horizonte. Anyway, that Committee did manage to get a meeting with the new president of the Amnesty Commission, Almino Afonso. He’s one of the few remaining who do at least have a background in human rights. He had very little to say beyond vague assurances. He gave the impression, not in so many words, that the replacement of commissioners had had something to do with their attendance record… but that doesn’t actually stack up, in fact they were the ones who’d been most visible in the public eye protesting against the impeachment attempt.

Q how do you see the present situation?

One important thing that hasn’t been affected or interfered with, at least yet, is the search for the disappeared, and identification of exhumed remains, that’s going on in Sao Paulo state, at the Perus cemetery. I think that work is somewhat protected because of the symbolic importance of the issue, and because the state prosecution service is overseeing it. The new subsecretary of human rights did at least make mention of transitional justice in her inaugural speech. But the Political Amnesty memorial project – which had already been limbo, even before the impeachment, because the Ministry had stopped passing on funds to the contractor – doesn’t show any signs of restarting. The main signal of actual negative change is what they’ve done to the Amnesty Commission. It will be really important to keep the issue in the public eye, and for people outside to continue to ask about it.


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In the News…

Posted by Vanessa Castañeda

In 1990, Perus, the mass clandestine gravesite was identified as containing 1,049 skeletons. 25 years later, there is still little that has been done to safely uncover and identify the remains of potential political prisoners and victims of the dictatorship. Although the minister of Human Rights Ideli Salvatti has stated this project as a priority for 2015.

Dwellers in the Elisa Maria neighborhood, on the northern outskirts of São Paulo, have named their streets themselves; many take after the names of political prisoners and the disappeared during Brazil’s military regime. In an effort to keep the memory of those fighters alive, dwellers of Elisa Maria compare their lived realities as if the dictatorship were still in effect. They attribute much of the violence and more specifically the police brutality, to the fact that Brazil’s institutionalized violent past has not been adequately denounced nor have perpetrators been held accountable.

The National Truth Commission (CNV), that examined the dictatorial period of brazil, has inspired the Bar Association (OAB) to create the National Truth Commission for Slavery. The commission’s main objectives will focus on researching Brazilian slavery extensively and the ways contemporary racial inequalities are rooted from this past, with hopes to directly address existing racism.

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In the News…

Posted by Vanessa Castañeda

The final report disclosed the 377 names of agents responsible for tortures, disappearances and murders. The National Truth Commission stands in favor of punishing those directly or indirectly involved in human rights violations. But others, such as Minister of the High Military Court Marco Aurélio Mello, believe that the amnesty law should remain as is, which consequently makes accountability very difficult.

Military agents are refuting the final report’s claims. In particular, they find accusing deceased agents as former torturers unethical because they have no grounds to defend themselves.  General Sérgio Etchegoyen is the first active general to publicly denounce the final report as trivial. His father, General Leo Guedes Etchegoyen, was on the list of the 377 accused agents.

Although there are mixed opinions from family members of the disappeared, there is a strong consensus that the final report is the first step towards justice and accountability. Maria Cristina Vanucchi Leme (sister of a student that was killed in 1973 during Operation Bandeirantes) has stated, “Reconciliation is important but an even greater form of peacemaking is justice.”

Maria Elizabeth Rocha, the first woman to preside in the High Military Courts, has stated she is committed to providing transparency and alter “society’s tainted vision of the military court”. Additionally, Rocha has stated that the Armed Forces were not supporters of torture and other human rights violations and furthermore, the commission’s task is to provide clarity, not accuse who is and is not guilty.

Minister of Human Rights, Ideli Salvatti has informed the public that they have began implementing 12 of the 29 recommendations set forth by the Truth Commission’s final report. Such measures include preventing and combating torture, locating and returning disappeared family members, etc. The other 17 depend on collaboration among other ministries and governmental bodies.

For a timeline of important moments during the National Truth Commission’s years of research and information gathering, click here.


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In the News…

By Vanessa Castañeda

The final report, presented to President Dilma on 10 December 2014, consists of three volumes. The first provides a history, description and the goals of the National Truth Commission (CNV) . The second provides information regarding human rights violations from differing perspectives in various social sectors including militants, urban workers, indigenous, the LGBT community, professors and university students. The third and most extensive details the histories of the 434 killed and disappeared. These volumes do not represent the beginning nor the end of theses investigations.   For a timeline of some of the CNV’s landmarks and highlights, click here.

Now that the Final Report has been handed over to the President, Brazil has two options: to view the report as a historical registry or to serve as another step toward transitional justice. Given the vote from the commission (5-1), the latter was chosen. One of the commission’s next steps seeks to punish those involved in torturing and murdering political prisoners.

In that same vein, the CNV announced two identified bodies of the disappeared: students Joel Vasconcelos dos Santos e Paulo Torres Gonçalves. With the help of digital comparisons, both were recently identified. Joel has been disappeared since March 1971 and Paulo March 1969.

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Brazil’s National Truth Commission Releases its Final Report

By Nina Schneider

Nina Schneider is a Marie Curie fellow at the University of Konstanz, Germany and author of Brazilian Propaganda: Legitimizing a Regime (Florida UP, 2014) and several articles on reckoning with dictatorship in Brazil. For a recent interview she gave on the National Truth Commission (in Portuguese), see here.

The official release of the National Truth Commission’s Report—the handover to President Dilma Rousseff—took place at 9 o’clock in the morning in the Pálacio do Planalto. The ceremony consisted of a select group of fifty invited guests (this was a last minute change, since initially the President had decided the presentation of the final report would occur in a closed ceremony).The small room was crowded by family members of the killed and disappeared, members of selected local commissions, deputies, and journalists. The release of the report was timed to coincide with International Human Rights Day.

The ceremony opened with those present rising to sing the national anthem. The first speaker was the commission of the National Truth Commission (Comissão Nacional da Verdade, henceforth CNV), Pedro Dallari, a lawyer. In what may be described a very formal talk, he declared that the commission had fulfilled the tasks mandated by law (a statement that he repeated throughout the talk), and briefly explained the structure of the report (which is divided into 3 volumes). He acknowledged the material used by previous commissions including the Commission of the Killed and Disappeared (CEMDP), the Amnesty Commission, foreign advisers, and the local commissions. “This is just the beginning,” Dallari stated, “research is not over by releasing this report.” He made it very clear that the CNV only had two and a half-years time and that there is much more research to be done. In a highly diplomatic gesture, Dallari assured the audience and the press that the Defense Ministry—especially Defense Minister Celso Amorim, who was also sitting at the front table—supported the commission. Yet he also stated clearly that the working conditions of the CNV were “very difficult”, alluding to the lack of support of the three branches of the armed forces, who failed to deliver military documentation, namely files helping to clarify the whereabouts of the bodies of the disappeared in the Araguaia massacre. Dallari also emphasized the support of President Dilma, and the independence of the CNV.

Dallari’s remarks were followed by those of President Dilma Rousseff, whose statements closely resembled her speech during the inauguration ceremony of the commission in May 2012. Addressing the antagonists of the commission, particularly the armed forces, she emphasized that the commission’s aim was “national reconciliation”, that she “acknowledges and preserves political pacts” (alluding to the Amnesty Law), and she several times repeated the statement: “We believe in truth.” The climax of the speech, however, was when she acknowledged the suffering of the families and victims. She paused and tears welled up in her eyes. The audience reacted promptly—everyone stood up and applauded. The clapping went on for a while, when the President resumed her speech with a firm voice. She congratulated the commission, those persons involved in planning it (Paulo Sérgio Pinheiro and Paulo Vannuchi), and closed her remarks with the Human Rights motto “Never again!”

Pedro Dallari then handed over the report to the President, and the ceremony was officially concluded (lasting overall approximately 45 minutes). At the end, a group of students launched a protest in the ceremony room. One speaker read a text about freedon and repeated the stanza “It is necessary to be free of fear.” The students brandished a banner and demanded punishment for the state agents involved in human rights crimes. Several members of the audience applauded the call for punishment.

Commission coordinator Pedro Dallari presents final report to President Dilma Rousseff. (Photo courtesy of Nina Schneider)

Commission coordinator Pedro Dallari presents final report to President Dilma Rousseff. (Photo courtesy of Nina Schneider)

Student protesters raise a banner at the end of the ceremony for the release of the CNV's final report. (Photo courtesy of Nina Schneider)

Student protesters raise a banner at the end of the ceremony for the release of the CNV’s final report. (Photo courtesy of Nina Schneider)

Right after the official delivery of the report to President Dilma, the members of the truth commission gave a press conference in an adjoining room. Most questions revolved around the polemic question of punishment and the Amnesty Law. During the interview, the tension between individual members of the commission—an ongoing problem over the last two years—became apparent. While Rosa Cardoso clearly argued that the Amnesty Law does not apply for torturers, Paulo Sérgio Pinheiro disagreed, stating, “It is not our job to reinterpret the President.” José Gregori argued that the Amnesty Law does not need to be revoked but just reinterpreted. When a journalist asked what was the greatest difficulty for the commission, Pedro Dallari pointed to the lack of documents from the armed forces and the frustration felt, as a consequence, of not having clarified the circumstances of death and bodies of the disappeared.

After the interview, the commissioners proceeded to the headquarters of the OAB (Brazilian Bar Association) for a ceremony “addressing civil-society”—mainly for the families, victims, and staff of the CNV. The room was packed. After a welcoming address by the OAB Director, Dallari gave another speech, this time a less formal one, mostly thanking the victim families, assistants, and other state organs for their help. He declared that “We did the best we could” and described the report in more detail. A notable revelation was that all the names of the criminals are stated in the last section of the report with their full name and a description of their crimes. A number of speakers followed, but the climax of the event was the appearance of an uninvited speaker who turned out to be a military general. He was booed and almost attacked when he tried to leave the room. The previous day (12/9/2014) the press had reported that military clubs had even tried to prevent the report’s release.

Participants in the event sponsored by the Brazilian Bar Association to commemorate the release of the CNV's final report. (Photo courtesy of Nina Schneider)

Participants in the event sponsored by the Brazilian Bar Association to commemorate the release of the CNV’s final report. (Photo courtesy of Nina Schneider)

In the afternoon, the CNV presented the report to the Brazilian Senate and Congress, while in a parallel event the national human rights prize—the highest national decoration—was delivered.

Overall, the mood of the various events was formal yet largely festive. While some survivors and human rights groups had boycotted the festivities to express their contempt for the commission’s work, most people in the audience seemed to acknowledge the symbolic power and the overall importance of the truth commission’s efforts.

Editor’s note: The final report is freely available online and can be accessed here.


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In the News…

Posted by Vanessa Castañeda

The National Truth Commission (CNV) began their 31 month-long investigation with locating the dead and disappeared as one of its most pressing objectives. The CNV only found one body (Brasilia) and says the main reason they were unsuccessful was due to lack of collaboration from the Armed Forces.  However, the CNV is scheduled to turn in their final report this week and have approximately 300 names of state workers and representatives accused of human rights violations during the dictatorship.

On 10 December 2014, the International Day of Human Rights, President Dilma Rousseff will receive the Final Report in a private meeting with the members of the CNV. However, in an effort to bring more awareness to the completion of the Final Report and its implications for transitional justice and human rights, the Bar Association (OAB) will host a meeting with victims of repression from the dictatorship and representatives from state truth commissions.

On 11 December 2014, the Senate, various governmental institutions and civil society will participate in three events with National Congress to discuss the appropriate steps for the right to truth, memory and justice regarding the injustices and human rights violations from the military regime.  Additionally, the Final Report will spark a debate concerning the listed names of military and state personnel, and the Amnesty Law of 1979 will be at the very center of debate. President of the Bar Association (OAB), Marcus Vinicius Coêlho, says the CNV will be their basis for both revising the Amnesty Law and bringing military men to trial.


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In the News…

Posted by Vanessa Castañeda

On 27 November 2014, former President Fernando Henrique Cardoso gave his testimony to the National Truth Commission (CNV) about his life exiled during the military dictatorship. Additionally, although he was not tortured himself, he speaks against the systematic torture and other human rights violations that occurred during the military regime.

In light of the dôssies exposing collaboration amongst regimes in the Southern Cone during Operation Condor, Brazilian Public Attorney Rodrigo Janot has officially teamed with the Public Ministry of Argentina to create an international research group investigating the crimes committed by each state. Both countries are grappling with how to address human rights violations during their respective dictatorial regimes, therefore, Janot is confident in the group’s mission.

Federal Justice in São Paulo has changed their original ruling and has now sentenced former colonel Carlos Alberto Brilante Ustra (81) for hiding the cadaver of Hirohaki Torigoe during the military dictatorship. It is the first time that the Brazilian justice system changes a ruling without taking the Amnesty law into consideration.

The CNV’s Final Report, scheduled to be finished on 10 December 2014, was originally going to include a final chapter of investigations surrounding homophobic persecution during the military dictatorship. Brazilianist James Green (Brown University) and Renan Quinalha (researcher of the São Paulo state truth commission) have written a stand-alone text specifically addressing the human rights violations against homosexuals, women and children.

The Truth Commission for Rural Workers and Truth Commission for the Indigenous scheduled to independently release their respective reports of human rights violations during the military dictatorship. Both commissions also sent their findings to the CNV but claim that they have only been partially included in the Final Report.

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