When a supreme court, bowing to the fiscal fury of the Executive, in one blow
knocks down two of the three fundamental institutions of democracyvested
rights and perfect judicial actsmade scared by the Constitution, in
democracy we no longer live.
If the Constitution can
be smeared by seven ministers, nothing is in the way of new violations. Cultural
ingredients for such already exist. Last year, a reporter from the newspaper
O Estado de S. Paulo spoke of "vested rights, perfect judicial
acts, res judicata (matters given a final judgment, which cannot suffer
any further revision), and other clichés."
When a purportedly liberal
newspaper doesn't terminate writers of such gibberish, the climate appears
ripe for any form of totalitarian regime.
According to the August
20 edition of newspaper Folha de S. Paulo, the government considers
a milestone the ruling by the Supreme Court that authorizes the taxation of
non-active federal employees, which puts an end to "the myth of the vested
right cláusula pétrea" (stone clause, a constitutional
clause that prohibits any bill seeking alterations).
To my knowledge, never
in Brazil has such enormous legal absurdity been committed. The institutional
acts by the post-1964 military regime violated the Constitution, but never
did anyone pretend that we were in a democracy.
The 1988 Constitution
created this exotic figure called "Stone Clauses", untouchable as
the deities on Mount Olympus. Only a new Constitution could annul them. Now,
another Constitution is no longer necessary.
"The law will not
affect vested rights, perfect judicial acts, and res judicata,"
stated article 5th, paragraph XXXVI, of the 1988 Constitution.
It so stated and still does. It took measly seven courtiers appointed by the
Executive to make of this guarantee dead letter.
The newspapers insist
on the vested right issue. The offense was a bit more serious. The real harm,
as one jurist observed, was done to the perfect judicial act of retirement,
from which, secondarily, vested rights of non-active employees derive.
If the ruling on August
18 was a milestone, which marked the end of the vested right "stone clause"
myth, as sources close to President Lula allege, then the door is now open
to do away with other stupid myths, such as private property, inheritance
rights, 13th salary (a mandatory annual year-end additional monthly
salary), paid vacation, and other truisms.
However, by milestone
always presume a new beginning. With this announcement, the government clearly
signals that in the near future other myths are to be eliminated.
Changing the Constitution
The next one has already
been made public. Last July 15, very discreetly, Statute no. 10.910 was enacted.
Its article 4th establishes GIFA (Gratificação
de Incremento da Fiscalização e da Arrecadação,
or Inspectorate and Tax Collector Incremental Bonus) payable to those in career
posts as Internal Revenue Services Auditors, Social Security Fiscal Inspectors,
and Labor Fiscal Inspectors, to the rate of 45 percent on top of the highest
base-salary of each career post.
Further down, article
10, paragraph 1st says, "For retirement pays or pensions that
come into effect prior to the elapsed period referred to in the introduction
of this article, the GIFA rate of 30 percent is applied to the maximum value
to which the government worker would be eligible were he in activity."
In a very casual way,
in a strike of pen, the Legislator knocked out another one of those inconvenient
myths, in this case, the parity between active and non-active employees.
Since non-active workers
don't have bargaining power, let it play out: either die early under living
conditions allowed by the salary, or die later on, in disgraceful old age.
And bring on the ADINS
(Ações Diretas de Inscontitucionabilidade, or Constitutional
Violation Law Suits), class action suits, and appeals to Congress or to the
Because six gentlemen
who attribute themselves constitutional powers is all that's needed to eradicate
myths, the government will not have much difficulty to reach into the pockets
of the poor old timers.
Besides, since the post-1964
"retroactive heroes" were incapable of ruining the country, they
must now find somewhere in the shadows of the nation a source for their fat
pensions, tax free, by the way.
One day before the notorious
ruling by the Supreme Court, president Luiz Inácio Lula da Silva said
in meeting with Abel Pacheco, president of Costa Rica, that he is learning
the art of staying in power many years.
"I have just visited
Gabon to find out how it is that a President manages to stay 37 years in power
and still run for re-election," said Lula, citing his recent trip to
Well, there is no mysterious
formula. All you need is a one party system, or yet, consenting to the existence
of other parties but always defrauding the elections.
Silencing the Oposition
It is recommended to keep
the people in misery, so that their preoccupations are never greater than
finding the next meal. As to the press, silence any opposing voice. In honesty,
no need to travel that far to meet a guru. His dear friend, Fidel Ruiz Castro,
the dean of all dictators on the planet, could afford some advice.
Furthermore, any library
offers one biography or another on Stalin, Mao Tse Tung, Envers Hodja, Nicolai
Ceaucescu, Muamar Kadafi, or Mobutu Sese Seko, these admirable leaders, who
intoxicated by the affection for their people, never allowed another principal
Fascinated by the extraordinary
political path of Omar Bongo, President Lula is taking further actions to
build a career as brilliant and lasting. He has already proposed the Federal
Council of Journalism, to get a better grip on those "coward journalists"in
his wordswho don't have the guts to back projects from his administration.
The prototype, for comparison
purposes, is the Ethics National Commission
from Cuba. Also, on the
table is a proposal for a National Agency for Cinema and Audiovisual, to influence
the major portion of the nation's illiterate; after all, each illiterate represents
To rescue a high level
government official accused of corruption, a new ministry has been created.
And, with the campaign to disarm the population, any attempt to resist to
the authoritarian regime has been foiled.
One of the Supreme Court
Justices, Eros Grau, recently sworn inand not by chancereleased
an opinion to a teachers association, prior to taking his bench on the Supreme
Court, for which he charged approximately US$ 11,000 to position himself against
taxing non-active federal employees.
Once a Supreme Court Justice,
he voted for the taxation. According to journalist Jânio de Freitas,
justice Eros Grau, this month, will be receiving half as much his legal opinions.
"Justice Grau's services,
in fact, have become much cheaper," says Freitas. I disagree. The US$
11,000 was the fee for a random opinion. It is another thing to make half
of thatfor the rest of your lifeto endorse what the Executive
wants and requests.
For Bandeira de Mello,
Law Professor at PUC-SP (Pontific Catholic UniversitySão Paulo),
the decision to tax non-active employees "eliminates legal safety measures.
If the Supreme Court can do this, the State of Law is bankrupt."
I don't know if you noticed
but the dictatorship has already begun. Worse yet: With the backing
from the Judiciary.
Janer Cristaldohe holds a PhD from University of Paris, Sorbonneis
an author, translator, lawyer, philosopher and journalist and lives in São
Paulo. His e-mail address is firstname.lastname@example.org.
from the Portuguese by Eduardo Assumpção de Queiroz. He is
a freelance translator, with a degree in Business and almost 20 years of
experience working in the fields of economics, communications, social and
political sciences, and sports. He lives in Boca Raton, FL. His email: email@example.com.