STF’s vague decision creates uncertainty about banning demonstrations

On January 11, following the news that some groups were organizing an event via social media with the title “Mega national demonstration for the resumption of power”, Minister Alexandre de Moraes, of the Federal Supreme Court (STF), prohibited any type of demonstrations in the country, including “attempts to occupy or block public roads or highways, as well as public spaces and buildings throughout the national territory”. In the text of the decision, Moraes made no explicit mention of the ban’s expiration date.

The decision has been criticized by jurists on several grounds, including its overly open nature and its interference with freedom of assembly, which is a fundamental right. By the Constitution, according to experts consulted by the People’s Gazettethe right to demonstrate could only be restricted in a context of a state of siege, which is decreed only by the President of the Republic with the consent of the other two powers and is valid for 30 days.

The text of Moraes’ decision, which has already been unanimously endorsed by the plenary of the Supreme Court, has raised controversy among jurists themselves due to its lack of clarity. For some specialists, the determination referred only to 1/11, when the demonstration mentioned in the decision was scheduled; others consider that the decision is completely open, remains in force and has no deadline to end unless the Supreme manifests itself again.

The confirmation of the measure by the plenary took place on 1/12, that is, a day after the date for which the social network groups predicted a new act, which reinforces the thesis of the absence of a deadline. In addition, nowhere in the decision is there any reference to the duration of the restrictions.

On the other hand, the petition that provoked Moraes’ decision, made by the Advocacy General of the Union (AGU), asks to specifically restrict the demonstrations that were being scheduled for the 11th, which gives some plausibility to the thesis that it was a question of punctual decision.

The report of People’s Gazette asked the STF to clarify whether or not the decision remains valid. This text will be updated in case of response.

Jurists differ when interpreting the text of the STF decision

Jurists consulted by People’s Gazette were questioned about the existence of an expiry date for the STF decision and disagreed on the interpretation of Moraes’ text.

“In my view, the decision was only for the specific case of the meeting on January 11, 2023, under the terms strictly required by the AGU”, says lawyer Edvaldo Nilo de Almeida, postdoctoral fellow in Democracy and Human Rights at the University of Coimbra. “Other meetings, to be held peacefully, without weapons, in places open to the public are constitutionally permitted and, at the same time, the right to assemble is a guarantee of the community and is independent of State authorization, always with respect for order and to public peace”, he adds.

Alessandro Chiarottino, professor of Constitutional Law and Doctor of Law from USP, disagrees. For him, it is not clear that the Supreme Court’s decision has a deadline, and in none of the alternatives would the decision have been opportune. “In a systematic interpretation, we could understand that this decision would refer to an emergency period, and should cease to be valid after the factual cessation of the emergency. However, we did not find this provision in the decision, which only adds to the uncertainty,” he says. “Such a ban is either absolutely unconstitutional, because it would be a ban ad eternal, or is ineffective. If it has a deadline, after the end of that deadline, the demonstrations return and there would have to be a new ban.”

The only form of restriction on freedom of assembly compatible with the Constitution, observes Chiarottino, would be the “decreation of a state of siege, with the participation of both the Executive and the Legislative Powers”, with a determined deadline. “The Constitution says in 30 days. If a new decree is necessary, a new approval by the authorities is required. This is the only way compatible with the Constitution”, explains the jurist.

“That is why this decision by the Supreme Court leaves so many uncertainties, leaves so many doubts. Perhaps, for this reason, Minister Alexandre de Moraes preferred to leave this question of duration blank, precisely so as not to come into direct conflict with the Constitution. there, while it did not clearly conflict with the Constitution, it ended up creating a situation of uncertainty that, from a legal and even practical point of view, could be even worse.”

Pedro Moreira, PhD in Philosophy of Law from the Universidad Autónoma de Madrid, considers that the STF’s decision to ban demonstrations has no deadline. “In general, these decisions have not been concerned with making the distinctions that any jurist should make. The matter is serious and, if there is a delimitation of the right of assembly, treatment should be much more careful”, he says.

As Moreira explains, one of the jurist’s duties is to make distinctions to provide rationality and predictability in order to order the community. And this type of decision, which, according to him, mixes situations that are clearly illegal with hypotheses that may be legal, contributes to disorder. “A scenario of permanent insecurity is created in which one does not know what is licit to say and how far it is licit to manifest. Furthermore, there seems to be a serious problem for local authorities, also subject to insecurity, because they end up acting exactly in compliance with the law, but in compliance with the order of a minister”, he observes.

“A decision that is so indeterminate, with an oscillating, mobile, flexible aspect that I can interpret for one side, but also for the other, deep down, it generates arbitrariness. The main effect is arbitrariness. And, over time, there is an atmosphere of silence, because people will not have the security to hold a demonstration, even a legitimate one, in a public space”, concludes Moreira.