May 25, 2021
Former Minister of Health Eduardo Pazuello was heard by the CPI of COVID on May 19, 2021. However, his appearance for the deposition did not happen without raising controversies, even without considering the content of his statements. First, the date of the hearing was postponed for almost two weeks because Pazuello claimed to be in quarantine because he had contact with a person who had tested positive for COVID-19. However, before the completion of the 15 days required and recommended by health authorities, Pazuello was caught in several meetings, including with President Jair Bolsonaro, which raised suspicions regarding the veracity of what the former minister claimed to Senators to postpone his testimony at the CPI.
But among so many controversies, the one that generated the most controversy was the habeas corpus to the STF (Supreme Court) prepared by the AGU (Advocacia Geral da União) in which the Minister asked to be allowed to remain silent at the CPI, in addition to preventing him from being arrested for not telling facts that could incriminate him, and should only stick to objective questions related to the period he served as Minister of Health.
Pazuello’s testimony is considered fundamental for the CPI (Parliamentary Inquiry Commission) to fully understand the federal government’s role in the fight against the pandemic caused by the Coronavirus. This is because he was the Minister of Health who remained in charge of the portfolio for the longest time during the pandemic, totaling 10 months. Moreover, during his tenure at the Health Ministry alone, more than 270,000 thousand Brazilians died from COVID-19. For these reasons, the general’s legal action to the STF was systematically questioned in the media and by politicians as a strategy that would compromise the success of the CPI and exempt him from providing the information he has about the disastrous conduct of the pandemic in Brazil, which has already accumulated more than 450,000 deaths, a large part of them preventable. It could be seen, therefore, that in these questionings there was a pronounced punitivist appeal, ignoring the constitutional rights that made the granting of the HC to Pazuello an expected measure
In view of all the controversies surrounding Pazuello’s testimony, the questions about the STF’s decision on his right to remain silent gained momentum. After all, what were the grounds for the decision?
On the evening of May 14, Justice Ricardo Lewandowski decided to grant habeas corpus to former Minister Pazuello, which guaranteed him the right to remain silent at the CPI. However, it is worth noting that the STF’s decision on the habeas corpus filed by the Attorney General’s Office exempted Pazuello only from providing information that would incriminate him personally, since the former minister is already facing a criminal investigation conducted by the Public Ministry (MP) related to his performance as Health Minister in the fight against the pandemic.
That said, Lewandowski’s decision to grant the HC in the terms in which it was prepared strictly followed the jurisprudence of the Court itself: it correctly guaranteed Pazuello his constitutionally enshrined procedural rights and guarantees while highlighting the former minister’s obligation to provide information about third parties, thus not being able to remain silent on all issues. Thus, Pazuello could even enjoy his right to remain silent, but it could not be invoked indiscriminately, since he could not evade answering objective questions about the management of the pandemic by his ministry, nor could he protect third parties, such as President Bolsonaro himself.
But, after all, why should Pazuello testify in this CPI and what is the basis of his right to silence?
The Parliamentary Inquiry Commission (CPI) is a legal-political institute – provided for in art. 58, § 3 of the Constitution of 1988 (CR/88) and in Law 1.579/1952 – that establishes an investigative procedure by the Legislative Branch. Its purpose is to investigate a certain phenomenon or fact for a previously defined period of time.
According to the legislation, for a CPI to be established, there are some basic requirements that must be met, such as the existence of a defined object, the number of signatures corresponding to 27 senators, and a specific time frame (art. 58, § 3 of the 1988 Constitution). Once these prerequisites are met, it is the prerogative of the parliamentary minority to open a Parliamentary Commission of Inquiry.
The petition to open the Covid-19 CPI was authored by Senator Randolfe Rodrigues (Rede – AP), and was filled by 31 senators, or more than ⅓ of the Senate. The object of investigation of the CPI is the actions and omissions of the Federal Government in confronting the COVID-19 pandemic, and the timeframe was set from April 27, 2021 to August 9, 2021.
It is interesting to note that there was a political dispute within the Federal Senate. While Senator Randolfe Rodrigues (Rede – AP) presented the proposal focused on the federal government’s conduct, Senator Eduardo Girão (Podemos-CE) presented the proposal with powers to investigate the conduct of the states and municipalities. Senator Girão’s strategy was an affront to the principle of the federative pact, or cooperative federalism, in an attempt to remove the focus from the conduct and omissions of the federal level.
It was resolved by the president of the Senate, Rodrigo Pacheco, that the investigation would be about the omissions of the federal government and the lack of oxygen in Manaus. However, an addendum must be made. The reading of the CPI request – the conduct that makes the opening of the CPI official – was made following the judicial determination of the STF. This is because Pacheco, elected in February to the presidency of the Senate with the support of the government and a congressman aligned to Bolsonarism, delayed for months the opening of the CPI, even though the criteria expressed in the legislation had been met – Senator Randolfe Rodrigues’ request was filed in February, but the Committee was only opened in April.
The STF’s decision at this point was, therefore, to reaffirm that, once the constitutional requirements for the installation of a CPI were met, it was the obligation of the President of the Senate – who has the prerogative to open Parliamentary Committees of Inquiry – to do so. The rapporteur, Justice Barroso, was clear in reiterating the subjective public right of parliamentary minorities to inspect public power. This position presents consolidated jurisprudence – Injunction no. 24.831/2005 and 24.845/2005 – and is not a point of divergence in the doctrinaire field.
The description of the purpose of the CPI of the Pandemic is clear when describing that the investigations carried out are limited to the Union’s transfers to the other federal entities related to the fight against the Covid-19 virus. Excluded were matters under the competence of the States, Municipalities, or the Federal District.
The work of the CPI, following its work plan, is being developed in a semi-presential way, with the presidency of Senator Omar Aziz (PSD-AM), vice-presidency of Senator Radolfe Rodrigues (REDE-AP) and the rapporteur of Senator Renan Calheiros (MDB-AL).
After Justice Ricardo Lewandowski correctly granted habeas corpus so that Pazuello could keep quiet about questions that could incriminate him, the members of the Covid 19 CPI and civil society in general began to hope that the former minister would keep quiet about most of the questions asked by the Senators, thus making use of the right guaranteed to him by the STF. This is because in the face of Pazuello’s controversial management, the result of which is several victims of Covid-19, he would have much to fear before the CPI.
However, what happened was just the opposite. The day before his testimony, information circulated in the press that Pazuello would not repeat the evasive and cowardly behavior of former Foreign Minister Ernesto Araújo, who had testified that day. As Veja magazine revealed, Pazuello denied training to answer the questions and said he would not shy away from answering any of them, despite his HC. The Minister also said that day that he would appear before the Commission in uniform, in a clear appeal to the Armed Forces’ historically intimidating image of civilian power. This idea, however, did not prosper (the high-ranking members of the Armed Forces were against the proposal, since it could compromise their image before civil society) and Pazuello attended the deposition wearing a suit.
Pazuello’s deposition lasted two days. In it, the active duty General made a point, as already advanced by the press, of answering all the questions asked by the Senators, but with a very important detail: the former minister blatantly lied, in successive distortions of facts and documents produced by the Ministry of Health itself, in addition to videos and images in which Pazuello appeared doing the exact opposite of what he told the Senators in the CPI. According to Senator Renan Calheiros, rapporteur of the CPI, the former Health Minister lied at least 14 times, a number that should be underestimated.
Given this fact, the president of the Covid CPI, Senator Omar Aziz, argues, along with other members of the Commission, that Pazuello would have used his HC to lie to the CPI and protect President Jair Bolsonaro, trying to change the facts and create a favorable version to the federal government of its management of the pandemic. In this way, the former minister used his immunity from arrest and his constitutional right to remain silent not to protect himself and avoid incriminating himself, but precisely to do the opposite: instead of omitting himself, he exaggerated. Instead of avoiding incriminating himself, he incriminated himself and President Bolsonaro – art. 4, II of Law 1.579/1952.
It follows that, as already advanced by Omar Aziz, Pazuello should be recalled to the CPI to clarify his lies and answer the questions that arose after his first testimony. This need became even clearer among the members of the CPI after Pazuello appeared, without masks and causing crowds, to the act held by Bolsonaro on May 23 in Rio de Janeiro, which contradicted his posture before the senators at the time of his testimony.
Although the CPI of the Pandemic is presenting important results about the conduct of the COVID-19 pandemic and represents an important act for the maintenance of the Democratic State of Law, it is evident how Pazuello’s posture is not consistent with the truth. His lies declare that his positioning in the public space is not of integrity and honesty as a tool for liberation and dealing with the public thing. It can be seen, therefore, that Pazuello refused the prerogative of silence and used denial to continue the necropolitics of the federal government. Thus, making it difficult to elucidate the potential crimes of the Bolsonaro government in the management of the health crisis in Brazil.
By Jessica Holl , Bruno Braga , Lucas de Souza Prates .
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 PhD candidate in Law at Goethe Universität, Frankfurt am Main. Master in Law from UFMG. Legal Coordinator of Associação Visibilidade Feminina. Researcher associated with CJT – UFMG.
 Graduating in Law from the Federal University of Minas Gerais. Researcher and extensionist associated to CJT/UFMG.
 Graduate student in Law from the Federal University of Ouro Preto. Researcher associated with International Law without Borders (DisF) and the Center for Transitional Justice Studies (CJT/UFMG).