Yesterday, June 08, 2020, the Ministry of Women, Family and Human Rights published in the Official Gazette of the Union a series of ordinances annulling previous ordinances declaring political amnesty.
The important thing to understand this situation is to answer the question: is Ordinance 1.104/GM3/1964 an act of exception or not?
What is Ordinance 1.104/64? It is basically the restriction for engagement and re-engagement in the military career, limiting the career of corporals to eight years of service.
When the Amnesty Commission was created, in August 2001, countless requests of the so-called former FAB personnel were filed for consideration by the Commission. To standardize the judgments, the then President of the Commission submitted the matter to the Plenary in 2002, and from that consensus the Administrative Precedent no. 2002.07.0003 was promulgated, which classified Ordinance 1.104/64 as an act of exception. From that moment on, all applicants who demonstrated that they had been dismissed from the Armed Forces in application of Administrative Rule 1040/64 had their request for political amnesty granted.
It so happens that the Ministry of Defense never admitted that this understanding prevailed. From 2003 on, a series of debates and opinions within the Federal Public Administration began to discuss the matter. The position of the Ministry of Defense and the General Counsel of the Union has always been that Ordinance 1.104/64 was not an act of exception, but only an administrative act of reorganization of the military career. Until then, the Amnesty Commission’s position was that it had been an act of exception, and anyone who had been reached by it should be granted amnesty.
As of 2004, the then Minister of Justice, Márcio Thomaz Bastos, ordered the institution of 495 proceedings for annulment of political amnesty decrees, since the Amnesty Commission itself had consolidated the understanding that only those who had entered the Armed Forces before the enactment of Decree 1.Those who joined the force after the decree could not claim that they had been affected by an act of exception because when they entered the force they were already subject to the restrictions created by the decree, i.e. the rule limiting military service to eight years was already in effect. Thus, nearly 500 ordinances were annulled and, from then on, the understanding was that if the person had entered before the Ordinance, he/she would have amnesty, and if he/she had entered afterwards, he/she would only have a declaration of political amnesty if he/she could prove political persecution other than the mere effectiveness of Ordinance 1.104/64.
But this understanding was still not sufficient for the Ministry of Defense and other organs of the Public Administration, and the debate continued. In 2006, the CGU issued a Note recommending that this understanding be set aside, without success. The different compositions of the Amnesty Commission over the years ended up relativizing this understanding, which became only a majority one, i.e. depending on the composition of the judgment panels, the Counselors understood that the Ordinance was or was not an act of exception. Between 2010 and 2011, the AGU, TCU and CGU pushed for the annulment of the amnesties granted exclusively based on the application of Ordinance 104, but this did not happen. Then in 2011, an Interministerial Review Working Group was created, composed of members of the Ministry of Justice and the CGU. The WGi decided on the annulments, but ran into the legal impediment of statute of limitations, i.e., the Federal Government would no longer have the right to annul those amnesties after so many years because more than five years had passed since the first payment. There were decisions of the STJ, recognizing the statute of limitations, and GTi was suspended.
In 2017, with a new composition of the Amnesty Commission, due to ministerial changes and with Justice Minister Torquato Jardim as Minister of Justice, an administrative session of the Commission revoked the 2002 Precedent, which stated that Ordinance 1,104 was an act of exception. This revocation was motivated by the Commission’s increasingly conflicting decisions, since depending on who was hearing the cases, either the Commission’s jurisprudence prevailed, or the understanding that without further evidence of persecution there was no reason for political amnesty.
The STF had already ruled on the issue of former FAB personnel to correct a career classification of those who had been granted amnesty, and it followed the Amnesty Commission’s understanding as to the time frame of entering the FAB, whether before (with the right to amnesty) or after (without the right to amnesty) Ordinance 104. The two Panels of the STF also held that the Public Administration could not review the amnesty of former FAB personnel after the statute of limitations had expired.
This understanding prevailed until October 2019, when the Plenary of the STF judged an extraordinary appeal with general repercussion, in which the statute of limitations was ruled out, by understanding, in a very tight 6×5 score, that the Ordinance was not an act of exception, and therefore, the granting of amnesty would be unconstitutional. It is curious to note that the Rapporteur of this case, Minister Dias Toffoli, had in his advisory staff the current Minister of Defense and that the public agendas of the Justices of the STF show that the magistrates who voted against the amnesty received this Minister of Defense and other military personnel to deal with this trial.
It should also be noted that since the beginning of 2019, a new Amnesty Commission was already configured, now no longer under the Ministry of Justice, but under the Ministry of Women, Family and Human Rights. Since the beginning of its activities, this new Amnesty Commission understood that the Ordinance was not an act of exception. In fact, it understood and still understands that there was no state of exception in Brazil and that the terrorists (as they are often called during the examination of the requests) who plead for the declaration of political amnesty are rarely right.
It is worth adding that, by ruling out the statute of limitations, the STF decided that the Public Administration could review the acts granting amnesty, provided that the due process of law and the full defense were respected. As was to be expected, due process and ample defense were disobeyed by the Administration. In fact, the Ministry of Women, Family and Human Rights only issued a generic note, opening a ten-day period for an equally generic defense. There was no prior indication of the reasons that would rule out the status of political amnesty sufficient to authorize the revision of the act, nor was the opportunity given for the production of evidence and even less was the rite of the law on administrative procedure respected.
The annulments that are now taking place were made possible, in part, by the decision of the STF, which removed the previous obstacle of decadence. But they only happened because the current Amnesty Commission, which has become a government commission and not a state commission, understands that there was no state of exception and, consequently, no acts of exception.