Architecture of omission – 06/02/2021 – Conrado Hübner Mendes

Augusto Aras decided to intimidate a teacher who calls him a negligent. Even lawyers and colleagues have been reporting their collaborationist ethos for months. But it was an uninspired pun that knocked the PGR off balance. He didn’t want to defend himself in public or explain why the general assessment of his disreputable performance would be wrong. He went into criminal proceedings and asked for jail. From the teacher.

His petition does two things: half expose a biography of an unusual man, a sort of “you know who you’re talking to” bachelor’s version; another half assert that attributing omission to this outstanding man is not just a crime against his honor, but false news.

Aras claims to work harder than all previous PGRs. He pulled out a magic number to prove his industrious life: he allegedly opened 78 “preliminary investigations” against the government, whose filings, until now, would have all been “accepted by the STF”.

Beware of the illusionism embedded in legal verbiage. He doesn’t say what he does, nor does he do what he says. Just as there can be authoritarianism disguised as democracy, violence painted as freedom, quackery sold as a cure, and genocide as incompetence, there can be omission dressed in action. In fact, it is not for lack of work that institutional omissions of this magnitude are leading.

There is a lot of sweating and screaming behind doing nothing against the “let me die” policy. The devil lives in procedural and rhetorical tricks. In this case, in such “preliminary findings”.

They usually work like this: crime news presented to the PGR can be summarily filed or become preliminary findings; as summary filings were growing, actors started to present criminal news to the STF, which has the duty to forward it to the PGR; this alternative route created additional constraints on the PGR.

In this case, Aras usually initiates preliminary investigations, a name that exudes an impression of diligence (but may be no more than a stalled procedure); can expect public pressure to dilute and file them at any time; unlike filings made by prosecutors in general, PGR filings do not accept appeal, only “reconsideration request” to the PGR, which they can ignore (and have ignored). There is no internal affairs.

Managing archiving time when the pressure of the spotlight retracts has been his art. And when he says that the “STF welcomed it”, he insinuates that the STF agreed. However, the STF has no power to reject. This is how the division of labor between the Public Ministry and the Judiciary works in the accusatory system.

Of the 78 procedures, there is news of only three becoming inquiries: interference in the Federal Police, demonstrations for military intervention and collapse in Manaus. Interestingly, the latter two excluded protagonist Bolsonaro from the investigation.

Preliminary findings only became an inquiry in the face of unavoidable public pressure. They can also be filed by the PGR, but at least they leave it more exposed, as they are under the supervision of the STF. Unless the STF changes its jurisprudence, neither the pastor can reverse the PGR’s monocratic filing.

The search and seizure operation against Ricardo Salles was ordered by the STF without the consent of the PGR, Alexandre de Moraes’ unorthodox departure. It doesn’t take a lot of imagination to decipher why. Damares Alves, Eduardo Bolsonaro and General Heleno, who benefited from preliminary filings, had no such bad luck. The accusations were serious.

If Aras made the 78 procedures more transparent, we would have an informed discussion. But as it decreed the secrecy of many, under irrevocable justification, it evades public inspection. Nobody knows what happened to them.

There is no monocratic body with this degree of non-appealability in the Brazilian justice system. Neither the president of the Republic nor the minister of the STF enjoy such protection.

The Constitution was not prepared to neutralize coordinated action between the PGR and the president. It made a perfect coup possible through the combination of three characteristics of the PGR position: free appointment by the president (who can ignore the triple list); free of control (“unappealable”); free for immediate promotion (without quarantine) to the STF.

A pair of Aras and Bolsonaro’s lineage, when operating in concert, extracts the most from this architecture of omission and cooptation. This and other republican deficits in Brazilian democracy call for urgent constitutional reform.

Aras can understand preliminary findings, destined for the drawer and the file, as proof of serious dedication to his role. It just cannot prevent so many observers, and even STF ministers, from seeing something worse.

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