Even 30 years after the 1988 Constitution, the most democratic one in Brazilian history, the legacies of the military dictatorship still linger on – a fact that has been made amply evident by Bolsonaro’s policies and discourse concerning transitional justice. Based on this, the present text aims to show how transitional justice has been deficient in Brazil and then discuss how Bolsonaro’s government has made the situation even worse by dismantling the policies that were developed under former governments.
Four pillars of transitional justice
According to standard accounts in the literature, transitional justice is composed of four fundamental pillars: reparation, memory and truth, institutional reforms, and accountability. Reparation in its various forms (collective, individual, pecuniary or through the offer of some service, such as psychological assistance), aims to demonstrate that the State acknowledges its guilt in relation to the human rights violations perpetrated. The right to memory and truth is based on the recognition by the government, which collaborated with and effectively promoted gross human rights violations, of the abuses committed, as well as on the recognition of the role played by resistance movements. It requires the government neither to deny the authoritarian past, nor to minimize its consequences for all the victims and for society as a whole.
Institutional reforms regard the legacies left by authoritarian regimes in state structures and aim to rebuild institutional structures based on a democratic paradigm. They usually involve the dismissal of public officials responsible for gross human rights violations, but also require changes to structures of the government that led to the violations. The pillar of accountability relates to the prosecution of agents involved in the serious human rights violations that occurred during the dictatorial period. Considering the interplay of the four pillars, recent studies argue that, in order to have an effective transition, transitional mechanisms should be implemented holistically.
Transitional justice initiatives in Brazil
In Brazil, there has been an uneven development of the central pillars of the field. Some initiatives have been successful, notably reparations and, to some extent, initiatives related to memory and truth. Other initiatives, however, were not executed or encountered barriers in their execution: institutional reforms and accountability, as it will be discussed in the sequence.
One of the central drivers for the realization of transitional justice policies in Brazil was the Amnesty Commission, created in 2001, with the main purpose of implementing reparation policies for politically persecuted people. Besides structuring the pecuniary reparations granted to the victims of the Brazilian civil-military dictatorship, the Amnesty Commission became the main entity to promote memorialization policies in Brazil. In this sense, the creation of the “Amnesty Caravans” project stands out, which took the Commission’s trial sessions to all regions of the country. The Amnesty Commission thus had an important role regarding not just the pillar of reparation, but memory and truth as well. Nonetheless, after the coup suffered by President Dilma Rousseff in 2016, the operation of the Amnesty Commission became more precarious and political interference by the President, the Minister of Justice and the Minister of Women, Family and Human Rights in its works increased.
Another central element of the Brazilian transition was the establishment of the National Truth Commission (CNV) in 2012, with the purpose of investigating serious human rights violations that occurred between September 18th, 1946 and October 5th, 1988. The final report of the Truth Commission is considered to be modest, summarizing what had been investigated by other Commissions and institutions before, but still contributing to historic accountability and giving effect to the right of memory. This can also be seen as a compromise with the military forces, which retain a significant political role in Brazilian democracy.
Criminal accountability of the agents responsible for grave human rights violations, on the other hand, has been prevented by the Amnesty Law approved at the end of the dictatorship. Although the Inter-American Court of Human Rights had held that the Amnesty Law violated the American Convention on Human Rights, the Brazilian Supreme Court has upheld it against constitutional challenges, making it impossible to implement the pillar. There are civil cases that demand monetary compensation for the violence suffered, but criminal cases are generally not admitted in the first instance, or are suspended, due to the application of the amnesty, even in cases of crimes against humanity.
In the same vein, there has never been a strong policy on institutional reforms, which can be related to the absence of recognition of individual responsibility for the gross human rights violations. Military personnel, members of the judiciary and of the public administration as a whole remained largely the same after the re-democratization. For instance, the role of the military justice was narrowed after the re-democratization, but its ample jurisdiction was left broadly intact, and the members of the Supreme Court and the political elites, by the time of the re-democratization, remained on their posts and just left when retiring. And even if repressive institutions, such as the intelligence unit “DOI-CODI”, were dismantled, the authoritarian mentality remained with police agents, so that cases of torture, disappearances and executions are still recurrent.
These examples show that transitional justice policies in Brazil were to some extent limited, which narrowed their effectiveness in promoting a society that is strongly committed to human rights and democracy. This has become all the more evident during Bolsonaro’s government and its policies regarding transitional justice.
Bolsonaro against transitional justice
Even before his 2018 presidential campaign, Bolsonaro indicated that he was not committed to transitional justice policies as defined above. Among the many examples, Bolsonaro’s speech in Congress on the occasion of former President Dilma Rousseff’s impeachment stands out: When he casted his vote as a congressman in favor of her impeachment, Bolsonaro dedicated his vote to the military officer and known torturer Carlos Alberto Brilhante Ustra, who was the head of the infamous military intelligence unit DOI-CODI during the dictatorship. According to the National Truth Commission, Ustra was responsible for at least 45 deaths and disappearances and 502 cases of torture – including for torturing Dilma Rousseff herself. With all this background, while voting for Dilma Rousseff’s impeachment, Bolsonaro considered it adequate to say “In memory of Col. Carlos Alberto Brilhante Ustra, the dread of Dilma Rousseff!” After his election, Bolsonaro called Brilhante Ustra a „national hero“. Clearly this rhetoric is diametrically opposed to the right to memory and truth as crucial element of transitional justice, not by just ignoring the report of the National Truth Commission, but also by re-victimizing those who already suffered during the dictatorship.
Once in office, Bolsonaro adopted policies that represent a setback with respect to every pillar of transitional justice.
With regard to reparation, Bolsonaro continued to interfere with the ongoing work of the Amnesty Commission, a process that had already started during his pre-decessor government under President Temer. Under the Ministry of Women, Family and Human Rights, the Commission lost its autonomy and stopped its projects related to a broader education promoting human rights and democracy. Until 2016, the members of the Amnesty Commission were nominated based on their experience and were never dismissed because of their political views. One of the first decrees of then-president Temer dismissed most of the members of the Commission, and nominated people with no knowledge of or experience with transitional justice. Bolsonaro’s government continued this practice and since the Commission is under the Minister of Women, Family and Human Rights, the decisions on amnesty are agreed upon beforehand in administrative sessions, so that the commissioners do not freely form their opinion on the case and that their impartiality is compromised. Also during Bolsonaro’s government, projects like the „Caravans of Amnesty“, the „Clinics of Testimony“ (that aimed to offer psychological support to the victims of the dictatorship), the peer reviewed „Political Amnesty and Transitional Justice“ and further publications on the topic were canceled and there was no more budget allocation for such initiatives. More recently, the government is planning to discard the collection of books, CDs and peer reviews formerly produced by the Commission.
Moreover, the Commission actually created new standards for granting amnesties and reparations for victims of the military dictatorship and started to review previously granted ones. These reviews are related to members of air force who were dismissed, but assumably not as a result of political persecution. The Supreme Court affirmed that it was possible to review the amnesties in this case, as long as the due process would be respected, which however was not the case. As an example of amnesties that were denied under Bolsonaro is the case of former president Dilma Rousseff, who was imprisoned and tortured during the dictatorship. The denial was based on the argument that it would represent a financial impact for the government and that she had already been amnestied by a state truth commission — both arguments represent no legal standard for denying an amnesty according to Brazilian federal law.
With respect to memory and truth, Bolsonaro not only gave speeches glorifying torture, but also canceled the project of an Amnesty Memorial. This Memorial was planned to be built in Belo Horizonte and was developed by the Amnesty Commission, in partnership with the Federal University of Minas Gerais, the Belo Horizonte City Hall and the United Nations Development Program (UNDP). The goal was to construct a space of memory, dedicated to the theme of transitional justice, which would make the vast collection of documents built by the Commission available to the public. But according to Bolsonaro’s government, there were no resources available for the project. Moreover it is still worth mentioning how every year, Bolsonaro intended to celebrate the anniversary of the 1964 coup, with some wins and losses before the judiciary on this matter.
Considering accountability, the scenario is the same, as the amnesty law remains in force, due to the decision of the Supreme Court. However, now, it is even more unlikely that the Supreme Court will review its first decision upholding the Amnesty law to comply with the judgments of the Inter-American Court of Human Rights against self-amnesties. The Supreme Court is now also composed by judges nominated by Bolsonaro (Nunes Marques and André Mendonça), that stimulate more conservative decisions and are not friendly to a jurisprudence based on International Law.
Regarding institutional reforms, the movement has gone in the opposite direction as well: Bolsonaro’s government is composed of a higher number of military personnel than even during the civil-military dictatorship. The lack of institutional reforms in the armed forces means that many soldiers remain open to authoritarian discourses and willing to remain a political power in Brazil. Armed and police forces with a stronger education in human rights, and higher regard for democratic institutions, would be unlikely to support an authoritarian government like Bolsonaro’s in such numbers.
If it was already necessary to discuss the limitations of the transitional justice policies implemented in Brazil before Bolsonaro’s government, now not just the limitations but the setbacks should be on the agenda. We are faced with new questions, such as: How to deal with the reparations that were reviewed? How to make the documents produced and collected by the Amnesty Commission accessible to the public? How to separate the military functions from the political ones in the next government? These will be added to persisting questions, concerning for instance whether speeches glorifying torture should be protected by parliamentary immunity or whether the amnesty law can remain in force even though it violates international law.
It is important that the new government that will hopefully follow Bolsonaro’s properly addresses these questions, instead of pretending that they do not exist or that everything is solved just by the change of government. On the other hand, if Bolsonaro wins once more the elections, it is the opposition’s role to pay attention to the way transitional justice policies are handled (or not handled), because they can affect the development of Brazilian democracy in the long term. In the same sense, civil society and the international community should remain vigilant and push for a more international-law-conform posture with respect to transitional justice in Brazil.