The National Security Law and the Defense of Democratic Institutions in Brazil

—Clèmerson Merlin Clève, Federal University of Paraná and UniBrasil.

“That anyone who possesses power has a tendency to abuse it is an eternal truth. They tend to go as far as the barriers will allow.”

Baron de Montesquieu

Brazil has been through, since the eighties, as of the enactment of the Constitution, a slow process of the reconstruction of democratic institutions. Although the country faced many changes that tested the strength of our democracy, such as in the case of the former President Collor’s impeachment, for example, the journey has been relatively victorious. The June 2013 movements, the 2014 presidential elections, the “Car Wash” operation (famous operation against corruption in Brazil, [Lava Jato] in Portuguese), former President Dilma’s impeachment, and the polarization of our politics has steered society towards radical division, weakening the trust in the country’s capability to build a long-lasting adequate institutional arrangement. This became clearer with President Bolsonaro, elected via an extreme right populist discourse. Nowadays, constitutional laws, fundamental rights, the press, the National Congress, and the Supreme Federal Court have been under periodic attacks, being tested on their capacity of endurance. Besides the continuous erosion of the country’s democratic foundations, twice, at least, the President considered the possibility of a coup in a classic sense, sadly well-known in our history. It is in this context that we find concern about an authoritarian legalism, characterized by an institutional defense from active advocacy against non-liberal practices of abusive constitutionalism.

The social networking use for the spread of fake news, neofascist digital activities, the continuous threat against disagreeing groups such as the opposition, lawyers, and journalists, has not been, however, sufficient. There is also a concern, in addition to the capture of horizontal control agencies, about the misuse of legal instruments to attack, punish, or intimidate whoever dares to criticize the President and his government. This strategy is well-known. It is about cooling and suppressing the free circulation of ideas, intimidating certain names as an exemplary procedure to refrain criticism, eroding, hence, not only civic virtues and the energy of a market of ideas but one of the pillars of the republic, which consists on the principle that no holder of any public office should ever be immune to scrutiny, no matter if it is tough or unjust, from the citizens occupying public space.

The National Security Law (Law n. 7.170/83) has been summoned as a powerful weapon for the purpose mentioned above. Enacted in 1983, during João Figueredo’s military government, already under the scope of a “slow opening, gradual, and safe”, which may be considered less tough, therefore, than the military regime rules that were issued before this period. Nevertheless, it violates the democratic and pluralistic philosophy that was only introduced by the 1988 Constitution. The frequency with which it has been applied, lately, is of an enormous concern. There are dozens of investigations, most of them initiated by the justice minister, the first cases with Sergio Moro, dozens of others with Andre Mendonca, putting in jeopardy our most important rights and principles; especially, freedom of speech, essential for the existence of a strong constitutional democracy. Due to that, several bills are being read by the National Congress to create a replacement to the National Security Law, too focused on the defense of a State understood from an old view of the military regime, for a normative instrument to defend the democratic institutions of a pluralist and inclusive society as the Fundamental Law has attempted to build. A valuable work front, hence, to those committed to democracy, is the fight for the enactment of a new law compatible with the Constitution. This, we must recognize, may take a while.

This is the reason why several political parties (PTB, PSB, PSDB and PT, PSOL and PCdoB) filed (four) claims for Judicial Review (ADPFs) before the Supreme Court to attack the National Security Law and warn society about its contrast with our constitutional order. Some of the ADPFs, such as that presented by the PSDB, request a declaration of total incompatibility or annulment (as happened with the press law, also the work from the military dictatorship), while another, brought by the PSB, challenges the most harmful provisions and asks for a new interpretation of others. This latter ADPF aims to keep some parts of the law in effect until a new law is enacted, to avoid the possibility of a legislative gap and to make provisions for the institutions of the republic to fight against organized antidemocratic actions of groups dominated by intolerance and an authoritarian worldview. This could be enough, during this grave moment in which the nation has been under, to improve the effectiveness of rights and guarantees, especially those vulnerable rights of the opposition and of expression, and thus to stop the arbitrary, continuous, and intimidating use of the law by agents of suppression,

Congress must fulfill its part. A new law is necessary to defend democracy against those that have been using the opportunities given by democracy aiming to diminish its virtues, destroy its principles, and undermine the institutions. I speak about the paradox of democracy following Popper’s ideas. The overcoming of a naive view must be summoned for the survival of civilization and the democratic Constitution. However, since Congress has to date abstained from taking action, it is important to wait for the Supreme Court to uncover provisions which violate the Fundamental Law, review some which might be still saved to prevent a gap within the judicial system and thus to safeguard essential articles to protect institutions. The simple and immediate complete invalidation of the National Security Law, in accordance with constitutional principles, does not seem to be the most adequate solution for today. As the rapporteur of the aforementioned cases is the experienced Justice Gilmar Mendes, we expect the Supreme Federal Court to decide the best path forward. One way or the other, fortunately, the end of the National Security Law, and its abusive utilization, can be seen on the horizon.

Suggested citation: Clèmerson Merlin Clève, The National Security Law and the Defense of Democratic Institutions in Brazil, Int’l J. Const. L. Blog, Apr. 21, 2021, at: http://www.iconnectblog.com/2021/04/the-national-security-law-and-the-defense-of-democratic-institutions-in-brazil/