STF succeeds in defending democracy, says Oscar Vilhena – 09/05/2023 – Politics

Oscar Vilhena is in an unusual situation: he is relaunching a book published in 1999 that sounds more current today than it did 24 years ago.

“The Constitution and its Justice Reserve”, now republished, analyzes how far it is possible to reform the Brazilian Magna Carta and how democracy can defend itself against attacks made from within the system itself.

At the turn of the century, this was only a theoretical problem in Brazil: “There was optimism in relation to the stabilization of Brazilian democracy”, says the professor and director of FGV Direito SP. “Today we face the beast head-on; back then, it was a hypothetical beast,” he adds.

The STF (Federal Supreme Court) took the forefront of defending democracy, not always with the applause of the legal community and almost always under boos from former president Jair Bolsonaro (PL) and his allies.

For Vilhena, who is a columnist for Sheetit is possible to point out occasional exaggerations, but, in general, he approves of the STF’s performance within the concept of “militant democracy”, which he explains in the following interview.

This Thursday (11), Vilhena will participate in the book launch debate at the FGV Direito auditorium (Rua Rocha, 233, Bela Vista, in São Paulo). The event will be from 5 pm to 8 pm. Admission is free, with registration on the college website (direitosp.fgv.br/eventos).

What was it like to realize that this book, originally published in 1999, sounds much more current today than it did back then? At that moment, there was optimism regarding the stabilization of Brazilian democracy. Fears of regression to an authoritarian regime were not on the horizon.

With the experience of instability that emerged in Brazil in 2013, culminating in the election of Bolsonaro, we began to see that democracy could suffer a process of erosion from within.

And the book is about that. The Weimar example was on my mind [referência o período de 1919 a 1933 na Alemanha, conhecido como República de Weimar, quando a Constituição passou por reformas que favoreceram a ascensão do nazismo]. What we have experienced since 2018 has led my colleague Dimitri Dimoulis to say: “This book cannot go without a reprint, because it demonstrates how important it is for democracy to create self-defense mechanisms”.

As the examples of Venezuela, Hungary, Turkey and India show, one of the forms of erosion is what is today called abusive constitutionalism: changing central clauses of the Constitution so that power tames the constitutional order. Today we face the beast head on; at that time, it was a hypothetical beast.

In the book, Mr. it also analyzes the case of the American Constitution, generally considered as an example of stability. The American case demonstrates how the hyper-rigidity of the Constitution can lead to crises. In Germany, it was a flexible system in which there were no tools to stop the process of constitutional change set in motion. In the United States, it is the opposite: constitutional hyper-rigidity prevented the end of slavery, and this conflict ended up being resolved by a war.

The Brazilian constituent may have found an unconventional solution, but quite effective: hyper-rigidity on the core and flexibility on the periphery of the Constitution.

A very current discussion, but one that already appeared in these historical cases, concerns the power of the supreme courts. What justifies that STF ministers can bar the will of congressmen, who represent the population as a whole? Democracy and Constitution are not about the same thing. Democracy is primarily about majority voting. The Constitution, since the end of the medieval period, is seen as a form of containment of power.

The coexistence between democracy and the Constitution has always been tense, and some American authors began to realize that a robust justification was needed for an unelected group of judges to exercise control over the democratic will.

What this book seeks is a solution to the problem. And the most relevant authors for me were Stephen Holmes and John Hart Ely. They say that it is possible to make this reconciliation [entre democracia e Constituição]as long as what the Supreme Court limits is what is indispensable for democracy to survive.

That is why I speak of enabling limitations: as long as I limit myself to restricting majority decisions that may jeopardize the continuity of democracy itself or the preconditions for democracy to function well, judicial review has no contradiction with democracy.

In Brazil, the criminal area is another source of questioning the performance of the STF. The PT has already voiced many of these criticisms, but today the main complaints come from the Bolsonarist camp, especially in relation to Minister Alexandre de Moraes. As mr. evaluate his actions? In 1937, the theory of militant democracy, of [alemão Karl] Loewenstein. The name is bad, because the word “militant” is very ambiguous. But militant democracy is not just a toolbox of self-defense but also an institutional posture of self-defence.

In other words, it is not just a matter of having an ironclad clause [na Constituição], law for the defense of democracy and a series of restriction authorizations, including freedom of expression. It is also about repositioning those who inhabit the institutions – they have to be willing to defend them militantly.

What seems to me to have happened in Brazil was a perception, on the part of the Supreme Court, that there was a very real risk of attacking the court. That is what gave rise to that first survey, 4,781, which caused perplexity in the legal community. They went looking for a very strange rule of thumb that had never been applied, but the rule was there.

A few months later, the Network questions the case. And the Supreme, when judging this process [arguição de descumprimento de preceito fundamental 572]in June 2020, established its doctrine of militant democracy.

What she say? the minister [Edson] Fachin, who was the rapporteur for this process, pointed out a few things. First, that democracy cannot be left without defense. Second, he detects that there is a real risk – and says that, in the presence of a real risk, the Supreme Court can take the necessary measures to protect democracy.

Third, he says that the prosecution system, the investigation system and the control system did not work. That is, the Federal Police is not investigating, Abin is not bringing the information, the Attorney General’s Office is not prosecuting.

The question, then, is how to proceed under these circumstances. In this situation, the Supreme has to take responsibility. Of the 11 ministers, 10 endorsed the thesis. Only Minister Marco Aurélio was against it.

And Minister Fachin created a series of conditions for the action of the Supreme Court. The question is whether every act of Minister Alexandre is in line with this.

It is? I think the Supreme Court acted correctly. This is my judgment on the fact that the Supreme Court has assumed the responsibility of investigating anti-democratic acts. But there are acts within these processes that exorbitate.

For example, why did governor Ibaneis [Rocha] when there was already an intervention in the Federal District? It doesn’t seem right to me. Why keep people locked up for so long? It is the same criticism that was leveled at the [Sergio] I live [na Lava Jato]of maintenance of prisons to see if I could get some kind of prize-giving.

There are several decisions that I think are inappropriate and that should be corrected by the plenary. But that doesn’t mean, in any way, that I don’t see how very positive the Supreme Court took responsibility for barring extremist groups that wanted to appropriate Brazilian democracy.

Can this type of action not appear to be partisan and undermine the credibility of the STF? It can generate credibility risk, yes. But I don’t see the fact that some ministers took a militant position as partisan. Defend the “core” [essencial] Democracy is not partisanship, although that is how extreme right-wing groups put it, just as left-wing groups put it after condemning the monthly allowance.

Another source of criticism of the Supreme Court is the appointment of ministers. There is currently a discussion about Cristiano Zanin, President Lula’s personal lawyer. Does the appointment of someone closely aligned with the president affect the credibility of the court? Of all the cases I studied, in all presidential regimes it is the president who chooses the minister. And the selection criteria are more or less the same: unblemished reputation and notorious knowledge. The Brazilian system does not differ from other presidential systems; politicization in the appointment of ministers I would also say that it is very similar all over the world.

What seems to me more complicated in Brazil is the Senate’s failure to properly control the nominations. This is a serious problem due to the fact that senators are judged by the Supreme Court. In other words, what disposition does a senator have to expel a candidate who will later judge his case?

Now, it is clear that the president choosing people close to him violates article 37 of the Constitution, the principle of impersonality. The president appointing his personal lawyer seems inappropriate to me.

Many sectors defend that Lula nominate a black woman. Bolsonaro has appointed a “terribly evangelical” minister, in his words. What is his opinion on these criteria? A constitutional court must have a certain identity with society. Even because they are points of view that are aggregated. This is interesting in any work environment: in the editorial office of a newspaper, in a law school or in the Federal Supreme Court.

But that is provided that the criteria of notorious knowledge and unblemished reputation are met. And the unblemished reputation is even about the mission that the person will have to fulfill. In the case of André Mendonça, he was Minister of Justice for Bolsonaro, a government very hostile to the Constitution. That was the problem.

Mr. took an active part in the act for democracy on August 11 of last year and in the post-January 8. After the turmoil, has the Committee for the Defense of Democracy fulfilled its function? The immediate risk to democracy today is smaller. But what remains for the Committee for the Defense of Democracy or for the Arns Commission is the fact that many of the conditions that led to resentment with Brazilian democracy are still present, which are the inequality or even the inefficiency of the State.

When a democracy does not keep its promises, it creates strong resentment against it. So one of our missions is to criticize this situation and seek solutions for unfulfilled promises.

In addition, far-right groups and radicals will remain. Of course, without the support of the President of the Republic, the severity is much less. So the other mission is to have an institutional discussion to solve the holes that we noticed during the crisis. For example, you cannot have an attorney general who has monocratic control over the defense of democracy.

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X-RAY | Oscar Vilhena, 57

Founding professor and director of FGV Direito SP, master in law from Columbia University (USA) and doctor in political science from USP. Author of “Constitution and its Reserve of Justice” (Martins Fontes, 2023)