John Lennon, who needs no introduction, in 1971, together with Yoko Ono, composed the beautiful song Happy Xmas (Was Is Over). The song was adapted and translated into Portuguese, becoming a huge hit in the voice of the immortal Simone¹.
Dr. Bady Curi
Note: this article sheds light on events in Brazil, the excesses of the supreme court of the Brazilian judiciary.
In reality, what few people know is that the song wasn’t composed for the Christmas holidays; on the contrary, it was a protest song, composed by Lennon and his wife in protest at the Vietnam War and the participation of the USA. As he sang, Lennon uttered the famous “It’s Christmas” and said “The War Is Over”.
Unfortunately, although hope is renewed every Christmas and New Year, in my opinion we have little to celebrate, at least as lawyers and defenders of the Democratic Rule of Law in recent years, unless we do as the translator of John Lennon and Yoko Ono’s song did, changing the meaning of the lyrics, in this case the Constitution and the Democratic Rule of Law.
Our country’s highest court, in a burst of exacerbated judicial activism, seems to be translating the articles of our Magna Carta, removing their true meaning, and deciding according to their convenience and what they believe is important for Brazil, through the subjectivity of its members, forgetting that power emanates from the people and not from the judge.
By setting themselves up as champions of morality and good customs, they assume a power that does not belong to them, usurping the functions of other powers and institutions of the Republic. As a result of these excesses or these interpretations that are divorced from the express meaning of the Constitutional norms, we are experiencing, just to give an example:
1 – Prior censorship of the social networks of several citizens, which is forbidden in the Federal Constitution in two passages: in article 5, item XI, of the Magna Carta, which states that the expression of intellectual, artistic, scientific and communication activity is free, regardless of censorship or license, and in §2 of article 220, in which any kind of censorship of a political, ideological and artistic nature is prohibited.
According to jurist César Dario Mariano da Silva, “From these two provisions it is clear that any kind of prior censorship, typical of totalitarian countries where there is no freedom of expression and much less a free press, is not possible. If there has been an excess of language and the boundary between freedom of expression and the commission of an infraction, including of a criminal nature, the punishment is subsequent. No one can foresee the commission of an offence and silence anyone, which is arbitrary.”
2 – Investigations of parliamentarians (representatives of the people) by the Federal Police, including the conviction of a Federal Deputy, who have exercised and must exercise their right to express themselves, being inviolable, civilly and criminally, for any of their words, opinions and votes (article 53 of the CF/88).
3 – Invasion of the competence of the Legislative Branch, as if the highest court of the Judiciary instead of being the guardian of the Federal Constitution had the attribution of a complementary Legislative Branch, we can mention the decriminalization of abortion and the use of drugs (marijuana).
4 – Endless inquiries with various outcomes presided over by the Supreme Court, dubbed by Justice Marco Aurelio de Mello as the Inquiry at the End of the World, with questionable competence.
And finally, so as not to make the article too long and tedious, the trial of hundreds of demonstrators and several troublemakers on January 8th, depriving the defendants of the legitimate right to be tried by the natural judge, which would allow for the possibility of appeals, certain that the STF’s jurisdiction is strict law.
Justice Marco Aurélio de Mello said, verbatim: “I am critical of this extended jurisdiction and, for me, it is a jurisdiction that cannot be sustained, not even if we already had deputies and senators involved in the criminal proceedings, because the Supreme Court’s jurisdiction is strict law. That’s what’s in the Federal Constitution, exhaustively.”
Furthermore, in my opinion, in the wake of several renowned jurists, including Ives Gandra Martins, what happened in the sad episode of January 8 was a riotous movement, with the invasion and destruction of public property at the headquarters of the three branches of government, but never an attempt at a coup d’état.
It’s hard to believe, not to say impossible, that a coup d’état or a threat to democracy could be carried out without weapons, without the effective participation of the Armed Forces, with a few slingshots and some lipstick.
As the jurist Ives Gandra rightly observed, “There were no weapons. They found a knife with one of them, but there was no military movement that could justify a coup movement.”
The result of all this is that hundreds of Brazilians are locked up in penitentiaries, away from their families, serving sentences that don’t match the reality of the acts committed.
I echo the words of Justice Marco Aurélio: “We have the imposition of unimaginable sentences. If we go to the Penal Code, the maximum, if memory serves, is four years, and we see people being sentenced to 17 years, potentiating what would be a violent act against democracy, when we had a popular movement with rioters who went on a rampage. So this is not good, because we learn from an early age that the example comes from above.”
The translation of John Lennon’s song, even if it removes its true meaning, can be interpreted as art. The interpretation of the law divorced from its meaning, in addition to revealing legal insecurity, can harm the lives of hundreds of people, as in the case of the trials of the protesters and troublemakers on January 8th.
May the Christmas spirit reach our parliamentarians so that they pardon these Brazilians and that our Judiciary apply the laws and not interpret them as if they were making a translation by changing the meaning of the rule.
I say!
Bady Curi Neto, founding lawyer of Bady Curi Advocacia Empresarial, former judge of the Regional Electoral Court of Minas Gerais (TRE-MG) and university professor
¹Simone is a renowned Brazilian singer, best known for her remarkable interpretation of Brazilian popular music (MPB). Born on December 25, 1949, in Salvador, Bahia, Simone Bittencourt de Oliveira has built a successful career over several decades, becoming one of Brazil’s most iconic voices.