Augusto Zimmermann
Indigenous people have special protection under Brazilian law. This was so at least until Dec. 12, when an indigenous leader was arrested by order of Justice Alexandre de Moraes [photo] of the Supreme Court of Brazil.
Cacique Serere (“Chief
Tserere”) of the Xavante Tribe dared to criticise the behaviour of top
electoral judges during
the recent presidential election in Brazil, so he suffered aggression and was arrested by a new kind of communist-style police operation ordered by
Moraes.
On the night of Dec. 13,
Moraes was denounced before the Inter-American Court of Human Rights for
violating several articles of the Pact of San José of Costa Rica, with the
arrest of Cacique Serere.
The complaint, signed by the
Latin American Journalism Council, requests, as a matter of urgency, a
precautionary measure for the International Court to make a recommendation for
the immediate release of the indigenous leader because, according to Law
6001/73, Brazilian Indians are considered unimputable.
“The arrest of an indigenous
person without due process of law and without respecting the status of
indigenous peoples constitutes a crime against indigenous peoples,” states the complaint.
There are numerous other
arbitrary arrests happening across the country. The Brazilian judiciary has now
moved on to a new phase, and the federal police keep carrying out the arrest of
people on political grounds.
In many cases, stated two U.S. journalists for The New York Times:
“Justice Moraes has acted unilaterally, emboldened by new powers the court
granted itself in 2019 that allows it to, in effect, act as an investigator,
prosecutor and judge all at once.”
Rights Guaranteed by Law
Freedom of speech is protected by Article 5, IV, of the Brazilian Constitution, which provides that “the manifestation of thought is free and protected.”
This right is further
guaranteed under Article 5, IX, according to which every expression of
intellectual, artistic, scientific communication is “free and immune to
censorship or license.”
What is more, free speech is
also guaranteed through Article 13 of the American Convention on Human Rights,
which has been turned into Brazilian law through Federal Decree No. 678 of
1992.
Apparently, however, nobody in
Brazil has been allowed to question the result of the recent presidential
election. Whoever dares to do so runs the risk of being immediately arrested
and prosecuted.
Indeed, Moraes says that anyone who shares any shred of doubt about
these electoral results, according to him, “will be treated like criminals.”
Amid allegations of massive
electoral fraud, Brazilians have been protesting in their millions over
hundreds of cities nationwide. These apparently are the biggest mass protests
ever in human history.
“The problem is that millions of Brazilians do not believe or trust the [top electoral court] and say the electoral high court is part of the electoral fraud scheme in this presidential election,” says Iolanda Fonseca, a journalist for The Rio Times.
Judicial Overreach
Moraes was appointed as president
of the nation’s top electoral court in August 2022. Prior to this, in April
2005, he was appointed by then President Lula da Silva to join the first
composition (biennium 2005–2007) of the National Council of Justice (CNJ).
From 2002 to 2005, he served
as the Secretary of Justice and Defense of Citizenship of São Paulo state under
the then Governor Geraldo Alckmin, the candidate for vice president on Lula’s
presidential ticket.
During this year’s
presidential election, Moraes issued numerous orders against alleged “fake
news.” He ordered social networks to remove thousands of posts and arrested
numerous supporters of the president without a trial for posts on social media
that he claims “attacked Brazil’s institutions,” namely his
own court.
In addition to sending some of
Bolsonaro’s supporters to jail, Moraes also ordered the confiscation of their
electronic devices and the freezing of their personal bank accounts.
Another example, on March 18,
Moraes ordered the nationwide suspension of Telegram.
President Jair Bolsonaro, who
sought re-election, relied on this messaging app to reach his voter base. He
has more than a million followers on the platform, and this proved crucial to
his electoral campaign.
The ruling came after Telegram
ignored an earlier order to block the account of Allan dos Santos, a supporter
of Bolsonaro accused of spreading “misinformation.”
Not only did he order the
shutdown of the messaging app nationwide, but he also ordered Apple and Google to introduce “technological
obstacles” to block Telegram on their operating systems and withdraw it from
their digital stores in Brazil.
After knowing all these
extraordinary things, who would dare say that these presidential elections in
Brazil were fair or transparent? Certainly not the millions of Brazilians
turning out to protest against the lack of transparency in this electoral
process.
Curiously, writing for The New
York Times on Sept. 26, U.S. journalists Jack Nicas and André Spigariol argued that these arbitrary rulings of activist judges
like Alexandre de Moraes “could have major implications for the winner of the
presidential vote.”
Augusto Zimmermann *, The Epoch Times, December 17, 2022
* was born in Brazil and emigrated to Australia in 2002. He is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association and served as a member of WA's law reform commission from 2012 to 2017. Zimmermann has authored numerous books, including "Direito Constitucional Brasileiro," "Western Legal Theory," and "Christian Foundations of the Common Law."
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