Pardon signed by Bolsonaro revisits exemption from illegality clause blocked in Congress

The pardon was, for the first time, granted for law enforcement officers and military personnel

Presidential decree signed in June determined cessation of pay to 11 MNPCT experts (Photo: João Brito/Conectas)

The decree granting Christmas pardon signed on Monday, December 23, by President Jair Bolsonaro is, for the first time, for the benefit of law enforcement officers and military personnel convicted of disproportionate use of force while either on-duty or off-duty. The president implemented by decree part of the text of the so-called exemption from illegality clause that was rejected by the National Congress when it voted on the “Anti-Crime” Bill submitted by the Minister of Justice, Sérgio Moro.

The pardon is a prerogative of the President of the Republic that is conferred, but also limited, by the Constitution. Pardons are not permitted, for example, for people convicted of crimes of terrorism, torture, drug trafficking and similar acts considered heinous crimes.

The Christmas pardon has traditionally been granted as an indulgence for people in ill-health or as a policy of decarceration due to the poor and overcrowded conditions at Brazilian prisons. Over the years, important progress has been made in the use of the pardon, such as the application of rules for people convicted of small-scale drug trafficking – no longer considered a heinous crime by the Supreme Court – and for imprisoned mothers, people convicted of non-violent property crimes and women in general.

This year’s decree maintained the rules on indulgence for health motives, but excluded all the other possibilities related to criminal policy. Conectas Human Rights regrets that the president failed to consider the serious mass incarceration problem in the country when making use of this important constitutional prerogative, neglecting to pardon offenses that could help correct injustices caused by the decay of the country’s prison system.

We also regret that this tool has been used to include an issue already widely debated by society and by the National Congress and removed from the “Anti-Crime” Bill due to its potential to encourage the illegal use of force and the extermination of young people, namely the exemption from illegality clause, which was described as a license to kill during the legislative debate.

Any sign from the public authorities of a lack of accountability for arbitrary killings will encourage the already increasing numbers of killings by the police and have a negative impact primarily on the lives of black youth from the poor urban outskirts, the main victims of State violence in Brazil.