BARROS BASTO

ASSEMBLY OF THE PORTUGUESE REPUBLIC


(translation by mlopesazevedo@yahoo.com)


COMMITTEE ON CONSTITUTIONAL AFFAIRS, RIGHTS, LIBERTIES AND GUARANTEES


OPINION
(português em baixo)

Petition No. 63/XII/1. Request for reinstatement in the Army of Infantry Captain Arthur Carlos Barros Basto, who was the target of political and religious segregation in 1937


1.Introductory note

Isabel Maria de Barros Teixeira Lopes da Silva Ferreira presented a Petition to Her Excellency, President of the Assembly of the Republic (Speaker of the House), asking for "reintegration into the Army of Infantry Captain Arthur Carlos Barros Basto, who was the target of political and religious segregation in 1937," identified as Petition No. No 63/XII/1.


2.Antecedentes - the military disciplinary proceedings

Captain Arthur Carlos Barros Basto was born in Amarante, on December 18, 1887, into a Christian family but of Crypto-Jewish ancestry. His grandfather even practiced Jewish religious rites, a fact that Arthur Barros Basto only became aware of in early adolescence.

Carlos Arthur Barros Basto was a distinguished Portuguese military officer, having commanded a battalion of the Portuguese Expeditionary Corps in Flanders during the First World War. He was honored with military decorations for bravery, including the War Cross. Previously, in 1910, shortly after he attended the War College, Barros Basto had become famous for his role in the implantation of the Republic and for being the soldier who raised the flag of the rebels in the city of Porto.

Notwithstanding, his existential journey was marked by the conversion to the religion of his ancestors, a fact that only took place after World War I, and his efforts in rescuing the Crypto-Jews; as well as those who considered themselves descendants of ancient Portuguese Jews forcibly converted centuries ago, and for the freedom of religious worship and the consequent assumption of faith and Jewish religious rituals.

Having adopted the Hebrew name of Abraham Israel Ben-Rosh, Barros Basto began a tenacious national and international campaign to search and convert the descendants of Portuguese Jewish Marranos, known as the "Work of Redemption of the Marranos." He did it with with such commitment and conviction that the English historian, Cecil Roth, called him the "Apostle of the Marranos."

From 1921, in Porto, Barros Basto began a profound revitalization of the local Jewish community, building the synagogue of Porto, Mekor Haim, founding the newspaper Ha-Lapid and a theological institute, (Yeshivah). He established new communities across the North of Portugal, creating the synagogue of Braganza. He manifested a very active proselytization of Judaism that although was within the paradigm of religious freedom of the 1911 Constitution, did not sit well with the new regime after the coup of May 28, 1926.

With the change of regime, the "Work of Redemption" and the new Jewish converts began to find it increasingly difficult. Even Arthur Barros Basto was subjected to personal and professional restrictions that leave no doubt about the trouble resulting from his behavior: in 1928 he was relieved from the board of directors of the Military prison, in 1931, he was required to live at a fixed residence with a curfew, and in 1932, there was an attempt to expel him from the Porto and re-locate him to Évora (such re-location never took place) .

The military disciplinary proceedings n. No. 6/1937 which resulted in his expulsion from the Portuguese Army probably had its origin in two anonymous letters, dated 1934 and 1935, which accused the Captain of practice of homosexuality. Thus, on June 12, 1937, the Supreme Council of Military Discipline, despite having acquitted Arthur Barros Basto on the counts on which the allegations of homosexual behavior were based, (the Council) unanimously found that Barros Basto performed "the operation of circumcision on several students ", of the Theological Institute of Porto, and treated them with, " exaggerated intimacy, kissing them and caressing them often ".

Based on that evidence, the Supreme Council of Military Discipline considered it demonstrated on count 5, almost as a way of concluding, that Captain Barros Basto had proceeded "in a manner affecting his respectability" and "military decorum."

This inference is repeated in count 7, which deprecates the fact that Barros Basto had not used any "violent" attitude - which the Supreme Council of Military Discipline considered justified - to "vindicate and discharge his honor and dignity which had been so rudely attacked”. The said Council even stated that the omission of the Captain to use brutality as a means of redeeming his " honor "as well as the delay in complaining against his detractors had affected his " military dignity and decorum”.

It is these considerations, inferences and suspicions, on which the Supreme Council of Military Discipline bases its final decision, reached unanimously, to declare Arthur Barros Basto devoid of the "capacity for moral prestige of his official duty and propriety of his uniform," applying the penalty of "separation of service" provided for in art. 178. of the Rules of Military Discipline then in force - Decree 16963 of June 15, 1929. The decision ends with the Ministerial Decree dated 06/21/1937: "Excute it", signed the minister Santos Costa. And so it was done.


3.Antecedentes - the application of the widow of 07/03/1975

Arthur Barros Basto was definitively separated from his military career. He saw his life and rescue mission of the Portuguese Marranos fatally subjected to the decision of the Supreme Council of Military Discipline and the Minister Santos Costa. He died in 1961 without ever having been able to reverse the effects of his conviction.

After the revolution of April 25, 1974, on the following day, the Junta of National Salvation, assuming the legislative powers of government, adopted Decree-Law no. 173/74, April 26, which, in article 2., No. 1, directed the reintegration, "in their functions, if they request it, the servants of the state, military and civilian, who have been dismissed, retired, pensioned or compulsorily moved to the reserves, and separated from service for reasons of political nature. "

It is within this political and legal historical context, that the widow of Arthur Barros Basto, Lea Monteiro Barros Basto Azancot on 03/07/1975, made a request addressed to the President of the Republic, General Costa Gomes, asking him to do justice to the memory of her deceased husband "to promote social rehabilitation and reintegration, nullifying the deplorable case which had been organized and the sentence of separation so iniquitously ordered complied with by the minister Santos Costa".

The answer was negative and sustained in an opinion which concluded that the application should be refused as "the case does not fall within the scope of Decree-Law no. 173/74." The opinion / decision restricts the application logic to an application for financial benefits. It is based on the assumption that the penalty imposed on Barros Basto in 1937 was based on homosexual practices with students of the Theological Institute of Porto, which, as we have stated , is entirely denied in the very disciplinary decision of the Supreme Council of Military Justice.

That is, the opinion and the rejection of the 1975 application of the widow of Barros Basto, although seemingly in accordance with the condemning decision of 1937, is totally and integrally at variance with that decision!

Strictly speaking, thirty-eight years later, there are facts which are now given as proven, that the Supreme Council of Military Discipline in 1937, decided were not proven "unanimously".

The opinion / decision of 1975 is a strange reinterpretation of events, leaving aside the very condemnatory decision which sanctioned Arthur Barros Basto, although formally wanting to support it, reinventing charges, circumstances and motivations.

More than a confirmation of the first sentence, the opinion / decision of 1975 hoists itself to a level of a second condemnation in an impossible parallel with the first. It wants to judge Barros Basto ab initio, sentencing the former Portuguese military officer in absentia by mortis causa –while it kicked out with stunning swiftness a cluster of important legal and logical principles, among which is highlighted the always salutary non bis in idem (the double jeapordy principle) ...

The case of Arthur Barros Basto, above all the delay and the various gags that have obstructed his rehabilitation, never ceased to cause disquiet inside and outside Portugal. Already in the 1975 application of Azancot Lea Monteiro Barros Basto, 1975, the case refers to the fact that he had become known as the "Portuguese Dreyfus".

In fact, he is. Referring only to the last few years, it is verified that the non-resolution of the case of Barros Basto has awakened increasing interest in Portuguese and international media through articles and petitions. The image of Portugal has been questioned by the fact that among the many thousands situations of religious segregation and anti-Semitism which unfortunately occurred in the thirties and forties of last century, the case of Arthur Barros Basto is one of the few that remain without a just resolution in countries under the rule of law and democratic freedom.


4. Opinion of the “Relator” (the writer of the opinion of the Committee of the Assembly.)



1.The decision of the military disciplinary proceedings, 1937

The sanctionative decision of the Supreme Council of Military Justice in military disciplinary proceedings n. No. 6/1937 is clear in its cognitive and evaluative methods which underlie it.

Without factual basis in order to achieve a conviction based on charges of homosexual practices, raised by anonymous missives, it tries to subsume the established facts in a similar juridical involucrum, aiming to achieve a pre-defined sanctionative result.

In this way, it overstates the relevance of Barros Basto's comportment with his students of the Theological Institute, "exaggerated intimacy, kissing them and caressing them often" - starting with that fact known and proven, the sanctionative decision erupts to a an unknown conclusion and necessarily disjointed, that the Captain decorated for bravery in World War I would not have the "capacity for moral prestige of his official function and decorum of his uniform."

Even more serious and far more revealing in the sanctionative decision of 1937, is the elevation of count 4, which was given as a fact, and which assures that Barros Basto carried out "the circumcision operation on several students, according to a precept of the Israelite religion that he professes". This fact also cements the conclusion of lower, "capacity for moral prestige of his official function and decorum of his uniform", for which Barros Basto was condemned.

Although it is explicitly recognized that such a practice derives from a religious ritual, the explanatory circumstances were not robust enough to remove it from subjective immorality in which the decision of the Supreme Council of Military Justice puts it forcefully and deviously. Hence, one cannot fail to understand that the proof of the practice of that religious precept, as such, was taken and considered as an act capable of affecting the morality of a Portuguese officer, as well as the "prestige" and "the decorum of his uniform ".

Thus far, the elucidation of the full condemnation of 1937 becomes inherent? (inafastável):


Arthur Barros Basto was "separated from the Army" due to a general atmosphere of animosity against him motivated by the fact of being Jewish, not covering it up, and instead exhibiting an energetic proselytism, converting Portuguese Jewish Marranos and their descendants. In a historical era colored by anti-Semitic sentiment, in which the most abject theories about superior and inferior races pullated across Europe, Portugal was not totally immune to these ideas, as no other European country of that time was. The sentence that victimized Arthur Barros Basto is the most lamentable and clear proof of that.


2. The opinion / decision of 1975

The 1975 decision is legally untenable and morally chilling. It contradicts the evidentiary material acquired in military disciplinary proceedings n. 6/1937 which sentenced Barros Basto. It extrapolates freely, invents facts, draws conclusions that are not certified and reaches a second posthumous condemnation directed at Arthur Barros Basto without any factual or legal foundation.

The significance of that decision, and, concomitantly, the opinion that supports it, constitutes a legal opinion that is likely to cause the greatest perplexities.

First, it reduces the claim of the widow of Arthur Barros Basto, from 03.07.1975, to a mere "request for benefits resulting from reintegration, concerning a deceased military." It ignores and avoids all the logic of the argument made to President Costa Gomes, above all, the clarity of the expression "moral rehabilitation" which the widow used twice in that document, always immediately subsequent to the term "reintegration”.

Part of the premise, apparently disregarded ( insindicavel) by the author of the opinion / decision that the claim of the widow of Barros Basto was motivated by purely financial reasons, in a futile thirst for "benefits", distancing himself from the necessary ponderance of the moral redress of a deceased military officer who had been discredited during the twenty-four years that passed between the sentence that dictated the separation from the Portuguese Army, and his death in 1961; as well as the indispensability of the desire for justice and restoration of truth and good name of his family who suffered with him before and after his death on account of a disgraceful decision.

Then even more surprising, the opinion which led to the decision rejecting the request of the widow, supposedly uncovers a discrepancy between the facts alleged and what happened in 1937, expressly stating that, "the problem the petitioner focused on (insert in the spirit of Decree Law no. 173774, of cases of political and religious segregation, especially when occurring at a time when, as is generally known, anti-Semitism raged in Europe) have much interest in being discussed –it is not the circumstance that the facts would completely refute such a claim.”

And then, in section 4 of the same opinion, it is clarified to what extent the decision of the Supreme Council of Military Discipline of 1937 had been substantiated by facts different from those in the application of Azancot Lea Monteiro Barros Basto,

"the facts justifying the decision, which came to be approved by ministerial decree, render themselves into homosexual practices with several students of the Israeli Theological Institute of Porto, of which he was the director, which practices were maintained for a long time - over two years and less five - which have nothing to do with the ceremonies prescribed by the Semitic religion. "

It should be noted that this decision of 1975 was not elaborated in the same context of anti-Semitic hatred that characterized the thirties of the twentieth century in most of Europe (although such an environment can never serve as a mitigating factor), but in a period of post revolution after April 25th 1974 in which Portugal woke up to freedom and respect for fundamental rights, values ​​which today color our rule of law, makes this decision a historical and legal paradox very difficult to understand.

The author of the opinion / decision of 1975 wanted to avoid the issue of political and religious segregation, perhaps realizing that it spilled over to the decision of the Supreme Council of Military Justice, 1937. He exerted all his argumentative strength in the sense that he circumscribed it to the factual plane of homosexual practices, abjuring, expressly and irrevocably illegitimate, all evidence taken in 1937 by the competent body. He distorted the facts and remade them as he thought best to defeat the petition of the widow of Barros Basto. As already stated, the opinion / decision constitutes a second conviction, much more than a confirmation of the first and in an impossible parallel with it.


3.Human rights and fundamental rights affected


The classical distinction between human rights and fundamental results from the different legal and historical perspective into which these two categories fall. The freedom of religion is present in either of these dimensions.

The conviction of Arthur Barros Basto by the decision of the Supreme Council of Military Justice in military disciplinary proceedings n. 6/1937 is factually justified and evaluatively motivated by religious intolerance and by a truly unmistakable preconceived anti-semetism in the analysis of the case process.

In turn, the opinion / decision rejecting the claim of the widow Lea Azancot Monteiro Barros Basto, dated 1975, deceptively tries to compose that anti-Semitic motivation and engenders a travesty of facts that had been given as unproven in 1937, trying, in vain to convey some suitability to a previously defined decision, but distracting from the facts, falling hopelessly in another prejudice, homophobia.


Both decisions inevitably fatally collide with the materiality of the precepts that underpin freedom of religion, be it under human rights or fundamental rights.

The answer to Petition no. º 63/XII/1.a - "Application for reinstatement in the Army of Infantry Captain Arthur Barros Basto, who was the target of political and religious segregation in 1937" – for however much that can ( and should) be done to fight for the limitless spatial and temporal protection of human rights, it should be evaluated, taking into account the object of the application: a posthumous rehabilitation of a soldier seriously wronged seventy-five years ago whose legal status should be remitted to the regime of fundamental rights currently existing under the Constitution.

In this framework, the rehabilitation of Arthur Barros Basto seems to be inevitable.

The petition sub judice should be evaluated according to the law currently in force, ie; the legal-constitutional framework existing at the time of filing of this Petition addressed to the President of the National Assembly by the granddaughter of Arthur Barros Basto, Isabel Maria de Barros Teixeira da Silva Ferreira Lopes.

And in that context, this Petition can not fail to obtain approval.



4. Beyond the law

All nations, volitionally or not, have forgotten pages in their history, made from non endearing past events, more or less vanquished, but few want to see want to see them evoked in the present that considers itself emancipated from earlier traumas.The long centuries of anti-Semitism in Portugal cannot be denied, nor the persecution of those who assumed their Jewish religion, or even directed at Catholics who were presumed to be descendants of the Hebrew people. The assumption of these traumas reveals itself more painful the less remote are the times of their occurrence. However, its still rather difficult to admit when similar conduct only dates back a few decades ago.

The application for reinstatement of Arthur Barros Basto is not limited to rehabilitation and reintegration into the Portuguese army of a soldier wronged seventy-five years ago. It is much more than that. After the long and oblique ways that the case took before and after the implementation of political freedom and democracy in Portugal, the remedying of this case translates into repairing the moral dignity of our own country, a nation deeply respectful of the integrity of fundamental rights, the cornerstone of the materiality of our rule of law.

Rehabilitating Arthur Barros Basto is to recognize a tragic mistake made more than seven decades ago, thus regenerating the present and future of the Portuguese who want free, democratic and tolerant. With the posthumous rehabilitation of Barros Basto, all Portuguese will be acquitted of an injustice done to a man that turned out to tarnish an entire collective.

The posthumous restitution of honor to Carlos Arthur Barros Basto and his moral rehabilitation will make the most perfect justice, the undoing of an injustice.

As such, all of us, Portuguese, men and women will be freer and more dignified.

Given the above, the Commission for Constitutional Affairs, Rights, Freedoms and Guarantees is of the opinion:

1.That, by force of the direct applicability established in art. 18th., No. 1, of the Constitution of the Portuguese Republic, and in the face of blatant violation of freedom of religion and worship that was perpetrated against Carlos Arthur Barros Basto and that is guaranteed by Art. 41., No. 1, of the same constitutional law, that in accordance with Art. 16th., No. 2 of the same constitutional text should be interpreted and integrated in harmony with the art. 18. of the Universal Declaration of Human Rights, as well as by the conditions laid in art. 10.*, No. 1, of the Charter of Fundamental Rights of the European Union, and also the application of art. 2*., no* 1 of Decree-Law no. 173/74, of April 26, the Portuguese state has the indeclinable duty to grant the application embedded in Petition no. º ª 63/XII/1, restoring posthumously in the Portuguese Army Captain Arthur Carlos de Barros Basto.

2.This opinion should be sent for all intents and purposes to the National Defence Committee.

3.That the petitioner should be made aware of this opinion.



Palace of Sao Bento, February 28, 2012

The Deputy “Relator”

Commission President

(Carlos Abreu Amorim) (Fernando Negrão)