—Juliano Zaiden Benvindo, University of Brasília
For a long time in Brazil, it has been taught that, in the final years of the dictatorship, during the presidency of General Ernesto Geisel (1974-1979) and General João Baptista Figueiredo (1979-1985), the repression and the human rights violations were gradually left aside in favor of a conciliatory discourse that would unleash the political openness, later culminating in the transition to democracy. In May, however, new bombastic revelations from a CIA Memorandum that the U.S. Department of State made public in 2015 and now revealed by Matias Spektor, a Professor of International Relations at the Getúlio Vargas Foundation and a columnist at Folha de S. Paulo, turned those assumptions upside down. They revealed how the high ranks of the military – and the presidents themselves – directly approved the summary execution of the adversaries of the regime. What at first seems just a revision of the past is, nonetheless, central for reassessing even further many interpretations of that period which, by focusing on the conciliatory argument, foster the forgetting of the atrocities of the regime. It has also sparked the debate over the need to reexamine the amnesty law deemed constitutional by the Brazilian Supreme Court in a controversial decision in 2010. Will Brazil finally expiate its sins?
There would be possibly no better timing for such revelations. As constitutional lawyers, political scientists and historians struggle to understand the recent political events in Brazil, one topic that is gaining importance more than ever in the country is how Brazilian society deals with its past and how dealing with its past matters for the resilience of its democracy. Brazil has long been one of the countries in the region where the support for democracy scores the lowest, and, along with the political system going downhill, it has reached a dangerous zone. In the last months, demonstrations clamoring for a military intervention have popped up here and there. Though these protests make more fuss than representing a real menace to the democratic order, they signal that the wounds of the past have not healed and that the collective memory of the tragedy of the authoritarian years has severely faded over the years.
The dictatorships that struck Latin America from the sixties to the eighties were a tragic experience in all of the region and the difficulties in coping with the past human violations and their perpetrators became a serious concern for the new civilian governments. The military used different strategies to keep many of their privileges and positions virtually untouched, while assuring that a general amnesty would apply to the members of those regimes. President Augusto Pinochet’s words, when he was leaving office in Chile, could not be more straightforward. “No one touches anyone… the day they touch one of my men, the rule of law ends.” No wonder that, when the civilians retook office, “acknowledgement became its polity.” In Argentina, where “the armed forces left power after a moral collapse” and there was a great demand for prosecution of those perpetrators of human rights violation, any conciliatory policy would suffer a serious social backlash. Yet, although punishment would be essential as a way to demonstrate that such acts would never again be tolerable, President Raúl Alfonsín acted very carefully and adopted procedures that transformed such a prosecution into a much more difficult endeavor. Brazil was no different. As elsewhere, the military and the conservative sectors which supported it attempted to control the transition, though, especially during the Constituent Assembly of 1987/1988, they were successfully challenged by many sectors of organized civil society.
One such attempts to control the transition was expressly inserted into the constitutional amendment (EC n. 26/85) that convened the Constituent Assembly of 1987/1988. In this amendment to the authoritarian Constitution of 1967/1969 lay the following clause: “Amnesty is granted to all civil public servants of the direct and indirect Administration and military, punished by exceptional, institutional or complementary acts.” It revealed practically the same mindset of the Amnesty Law published in 1979, but the need to mention it in that constitutional amendment was obviously not innocent. By placing it in the constitutional amendment that convened the Constituent Assembly, it aimed to bestow a constitutional status to a subject that could be eventually deemed unconstitutional under the new democratic order. It is no wonder that this general amnesty led to a very compelling debate over whether the secondary constituent power of the previous authoritarian Constitution could act as primary constituent power of the following democratic Constitution, or whether the primary constituent power of the new Constitution could be constrained by an amendment of the previous authoritarian regime. Constitutional theory clearly states that, even though the past naturally plays a role in any constitutional change, once the Constituent Assembly launches its works, it has all the powers to define the future. Such constraints, however, can easily defy theoretical assumptions, as it happened in Brazil in a controversial Supreme Court decision.
In 2010, the Brazilian Supreme Court examined the constitutionality of the Federal Law n. 6.683/79, which granted amnesty to everyone who committed political crimes in Brazil between September 2nd, 1961, and August 15th, 1979. The case was filed in the Supreme Court through a Claim of Non-Compliance with a Fundamental Precept (ADPF), an action of the abstract system of judicial review, by the Brazilian Bar Association. In a controversial ruling, Justice Eros Grau, the rapporteur, argued that it is not the judiciary’s but Congress’s authority to review such a political agreement. Striking, however, was the core argument of his decision: “the 1979 Amnesty Law was reaffirmed, in the Constitutional Amendment n. 26/85, by the Constituent Power of the 1988 Constitution…” Beneath such a stretch to the concept of primary constituent power lay, however, a general mindset of the transition to democracy: at that very moment, Brazilian society was all moving towards conciliation. Chief Justice Cezar Peluso’s opinion could not be in this regard more direct: “Only a great society is capable of forgiving. A society that is willing to fight its enemies with the same weapons is doomed to failure.” The dissenting opinion, led by Justice Carlos Ayres Britto, was also very straightforward: “The torturer is not an ideologue. He does not commit a speech crime; thus he does not commit a political crime. He is a monster, a nasty person, a pervert. There can be no complacency with a torturer.” A 7-2 majority ruled in favor of the constitutionality of the amnesty law in the end.
Yet widespread conciliation, besides the very concept of primary constituent power, is also a stretch for many of the memories of that past. More even so when such discourse of conciliation that gained strength in the final years of the dictatorship is challenged by impactful revelations involving exactly those presidents deemed the conciliators. Matias Spektor was very honest when he said that those CIA documents were the most disturbing documents he has ever read in his twenty years of research. Not only were the presidents aware of the massive executions against the so-called “dangerous subversives,” but directly authorized and determined that extra-legal methods should continue to be employed as a policy. “Openness is not the opposite of repression,” he said. True, it is not that historians did not already have elements pointing out to this same conclusion, but the shock caused by such a research may signal another pathology of Brazilian memory. As Carlos Fico, a professor of Brazilian history at the Federal University of Rio de Janeiro, said: “Brazilian society was very benevolent towards the military presidents who committed these serious human rights violations, though it is very rigorous towards the civil presidents of the recent democratic period.”
A weight presidential election looms with an apologist of the dictatorship, Jair Bolsonaro, leading the polls if Lula is deterred from running. It would come as a surprise for a country that until few years ago was an important model of democracy in the region, though Bolsonaro’s chances may dwindle once the campaign officially launches as his small party (Social Liberal Party) may not have the strength to compete with traditional ones. To reach such a scenario is, however, symptomatic of a country that has done little to expiate its sins and has chosen to forget rather than remember. After those revelations, sectors of society and the Federal Public Prosecution have sought a new Supreme Court ruling on the amnesty law by showing that, after so many years, Brazil is now the outlier in Latin America and is in direct violation of the precedents of the Inter-American Court of Human Rights. Chile and Argentina, for example, unlike the first years of their democracies, have since done much more to challenge their authoritarian pasts.
The French historian Pierre Nora once wrote “Memory is life, always carried by groups of living people, and thus it is in permanent evolution, open to the dialectics of memory and amnesia, unaware of its successive deformations, vulnerable to all kinds of uses and manipulations, susceptible to long latencies and sudden revitalizations.” In times of memories of those authoritarian years fading away in Brazil (and elsewhere!), we need, more than ever, historians and living people reminding us of the atrocities of those periods, so we can challenge the manipulations that are recurrently built to deny those very realities. In moments of crises, such memories are guardians of non-retrogression. They are a tool that makes us aware of where we stand to fend off that past in the building of our future. It is not a simple conciliation, though, as the ideology of a controlled transition strategically – and successfully – inscribed those moments in history. It should be rather a learning process that only a serious encounter with that past can move us away from general oblivion. True, as Marco Napolitano said, “unfortunately, it is not historical evidence, though important, that will change this authoritarian mindset.” In any case, in such turbulent times, this new evidence brings some new hope for remembering, however little it may be.
Suggested citation: Juliano Zaiden Benvindo, Memory and Forgetfulness in the Brazilian Dictatorship: Can New Revelations Help Brazil Expiate its Sins? Int’l J. Const. L. Blog, Jul. 4, 2018, at: http://www.iconnectblog.com/2018/07/memory-and-forgetfulness-in-the-brazilian-dictatorship-can-new-revelations-help-brazil-expiate-its-sins/
 STF, ADPF 153, DJU 30/04/2010.
 See Tina Rosenberg, Overcoming the Legacies of Dictatorship, 74 Foreign Affairs 134 (1995).
 Jorge Correa S. Dealing with Past Human Rights Violations: The Chilean Case after Dictatorship, 67 Notre Dame L . R. 1457 (1992)
 See Emilio Fermin Mignone; Cynthia L. Estlund; Samuel Issacharoff, Dictatorship on Trial: Prosecution of Human Rights Violations in Argentina, 10 Yale J. Int’l L. 118, 119 (1984)
 Id. at 119.
 Id. at 119.
 See Juliano Zaiden Benvindo, ‘The Forgotten People in Brazilian Constitutionalism: Revisiting Behavior Strategic Analyses of Regime Transitions’ (2017) 15 International Journal of Constitutional Law 332, 332-57.
 Artigo 4º, Emenda Constitucional nº 26, de 27 de novembro de 1985, DOU 28.11.1985
 Lei nº 6.683, de 28 de Agosto de 1979, DOU 28.08.1979
 See Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press 2017) 105
 Lei nº 6.683, de 28 de Agosto de 1979, DOU 28.08.1979
 STF, ADPF 153, DJU 30/04/2010 (Justice Eros Graus’ opinion).
 See Juliano Zaiden Benvindo, The Rule of Law in Brazil: A Conceptual Challenge, Int’l J. Const. L. Blog, May 2, 2018, at: http://www.iconnectblog.com/2018/05/the-rule-of-law-in-brazil-a-conceptual-challenge/
 See Christine A.E. Bakker; ‘A Full Stop to Amnesty in Argentina: The Simón Case,’ 3 Journal of International Criminal Justice 1106-1120 (2005). In Chile, see Requa MA, ‘A Human Rights Triumph: Dictatorship-Era Crimes and the Chilean Supreme Court.’ 12(1) (2012) Hum Rts L Rev 79
 Pierre NORA, Introduction : Entre Mémoire et Histoire, in Pierre NORA (ed.), Les lieux de mémoire. Tome 1: La République, Paris : Gallimard, p. XIX (1984). (La mémoire est la vie, toujours portée par des groups vivants et à ce titre, elle est en evolution permanente, ouverte à la dialectique due souvenir et de l’amnésie, inconsciente de ses déformations successives, vulnérable à toutes les utilisations et manipulations, susceptible de longues latences et de soudaines revitalisations…)