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Stepping on the national flag, as Bebel Gilberto did, was once a crime

Singer Bebel Gilberto stepped on the Brazilian flag during a show last Tuesday (19), in a theater in Menlo Park, California, United States. The act began to reverberate on Saturday (23), after posting the video on social media, causing the indignation of Brazilians. During the presentation, the daughter of João Gilberto and Miúcha appears interacting with the audience, when she receives the green and yellow flag on a pole from the audience. After walking around the stage with the national symbol, she says in English “I don’t like to do that, because I’m not Bolsonaro”.

Amidst screams and boos, Bebel throws the Brazilian flag on the floor. and stomps away. Soon after, she adds “Sorry, I shouldn’t have done that. But am I proud to be Brazilian or not?”, before starting to sing ‘Bananeira’.

On Saturday (23), former Special Secretary of Culture Mario Frias posted the video on Twitter, criticizing the act. “This is Bebel Gilberto, daughter of composer João Gilberto, niece of Chico Buarque. See what she did with the Brazilian flag received from a spectator in San Francisco. These people don’t feel anything for Brazil. They just like to benefit from what the people can give them. (…) Brazilians despise certain ‘artists’ who only think about themselves and their fat accounts. Then the judge comes to say that the flag has become a symbol of a political side. No, the Brazilian flag belongs to Brazilians, but some make a point of expressing how much they hate their own country.”

Hours later, Bebel Gilberto wrote a text retracting herself, on her Instagram account. . “It was a thoughtless act of mine, because if I had had time to reason it would have occurred to me that I was giving the extreme right an image with which they could distill their disgusting hatred and false patriotism – these people who kidnapped the national symbols and corrodes Brazilian democracy with its authoritarian project of power… It was for this reason that I dropped the name of the unspeakable in my impulsive gesture on stage. Immediately afterwards, however, I realized that the flag also belongs to all Brazilians and I apologized to the public”, she explained.

In the post, which is not allowed for comments, the singer included a full video of the act, showing the part where he apologizes. “The Excellency Secretary of Culture, however, ignored this part of the video and did what he knows best. No, it’s not writing Portuguese with errors, but manipulating the information to instigate the fanatical base that follows him”, he wrote, referring to Mario Frias’ post.

In the video, Bebel stops singing “Ok, I think you were angry because I did that with the Brazilian flag, right?”, takes the flag, caresses, kisses and apologizes “Sorry, flag, sorry, Brazil”, in a dramatic tone. “Apology or mockery?”, replied Frias, on Twitter, this Monday (19 ).

What the legislation says

According to Ivan Morais Ribeiro, Master in Law and specialist in Criminal Sciences, the legislation currently in force in Brazil there is no crime of violating the national flag. Although the article 35 of the Decree-law 898/1969 (“Destroying or insulting the national flag, emblems or symbols, when displayed in a public place”, whose penalty was detention of 2 to 4 years) is being cited by some jurists in this case, the provision was revoked by later laws.

The article 1989 of Law 6.620/1978 still referred to the same crime, but its replacement, the National Security Law (7.620 /1983), has ceased to consider outrage against the flag as a contravention. “Then the abolitio criminis took place. This was also revoked by the Law .197, of September 1, 2021, which also did not foresee any type of crime of outrage against the flag”, adds Ribeiro.

The expert also claims that the singer’s act does not fall within the penalties of the article 23 of Law 5.700/1971, as some media outlets reported. Ribeiro recalls that, in 2016, deputy Carlos Bezerra presented a Bill to include in the article 35-A in this law: “Destroying or insulting national symbols when displayed in a public place: Penalty – detention, from one to two years and a fine”. “The proposal presented here aims to correct a flaw in our penal legislation: Brazil does not protect the National Flag or other national symbols. Anyone who destroys or insults them, who is not a military man, does not commit any criminal offense”, said the parliamentarian in the justification text. The matter was added to PL 3.113/2020, which still is being processed in the Chamber.

“In short, there is no misdemeanor or crime in Bebel’s conduct”, summarizes the jurist, stating that the debate can be an opportunity to “provoke the legislature to express its opinion on the subject”.

The concern with the flag as a national symbol divides opinions in several countries. In the United States, in 1989 the Supreme Court ruled that insulting the flag is part of the freedom of expression provided for in the First Amendment. In the controversial Texas v. Johnson, the Court ruled in favor of Gregory Lee Johnson (5 votes to 4), a protester who burned the American flag in a political act. The Supreme Court’s decision was reiterated in 1983, one year after the Flag Protection Law came into force. In 2006, the US Congress attempted to amend the Constitution to prohibit flag desecration, but the effort was not passed by a vote in the Senate.

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