What to do if democracy suffers turbulence

The preservation of democracy cannot be carried out, in the judicial sphere, without one of its most fundamental assumptions: due legal process, which is included in the country’s legal system and observes principles such as natural justice, the broad right of defense and strict adherence from effectively threatening, concrete and proven conduct to clear criminal types. This was the conclusion of the sixth and final panel of the congress “Freedom of Expression: the essential debate”, held on September 27th and 28th, in Brasília.

Organized by People’s Gazette and according to the Ranking of Politicians, the event had the support of the Liberal Institute, the Paraná Lawyers Institute and the National Federation of Lawyers Institutes (Fenia). Influential voices on the topic of freedom of expression in Brazil and around the world participated in six panels on the subject.

In the last debate of the congress, renowned jurists discussed the importance of due legal process in possible and exceptional restrictions on free expression. The case selected to illustrate the discussion was last year’s decision by Minister Alexandre de Moraes, of the Federal Supreme Court (STF), which authorized search and seizure and ordered the blocking of bank accounts of businesspeople who defended, in private WhatsApp conversations, some type of “coup” to prevent Luiz Inácio Lula da Silva (PT) from returning to the Presidency.

They also had their profiles suspended on social media and suffered a breach of telematic secrecy, so that all their communications could be investigated by the Federal Police.

The operation was launched based on a report that contained some leaked dialogues. On his own initiative, Moraes included businesspeople in the inquiry into “digital militias”, a by-product of the “fake news” inquiry aimed at curbing supposed threats and offenses against institutions and authorities on social media. A year after the decision, the minister withdrew the majority of businesspeople from the investigation, considering that “although they agreed with the fake news, they did not go beyond the limits of internal manifestation in the aforementioned group, without the externalization capable of causing influence on third parties as creators of opinion”.

First to speak on the panel, Professor Jónatas Machado, director of the Faculty of Law at the University of Coimbra, said that, in times of political turbulence, democracy must rely on strong structures, like an airplane, to get through bad weather.

“In times of uncertainty, insecurity, of unrest, it is good to live in a country with strong institutions, which resist trepidation, internal turbulence and external turbulence. When we travel by plane, we sometimes experience turbulence and if we feel like we are on a strong plane, we feel safe. That’s why we need to preserve institutions and also defend them. Therefore, it is natural that in criminal codes we have provisions classifying crimes that attack democracy. This is normal and healthy,” he said.

This, however, should not lead the Judiciary, when called to act, to dispense with elementary principles of the judicial process. He highlighted the submission of suspicious conduct to ordinary courts, whose decisions are made by a group of judges and eventually faced with appeals to higher courts – this was not the case with businesspeople, who were immediately investigated by a magistrate from the highest court in the country, whose act was not submitted to the other colleagues in the court.

Another elementary principle neglected in the case was the clear separation, in the process, between those who accuse and those who judge. Officially, Moraes accused the businessmen of suspicions of committing serious crimes against the Democratic Rule of Law. Finally, Jónatas Machado drew attention to the need to clarify precisely how conduct could be classified within the criminal types that seek to protect and preserve the democratic regime.

“Obviously, [é preciso] impartial and independent judges, and who in higher courts, with some distance, can be called upon to apply the law. Therefore, there is no concentration of everything in one person. That would be old-fashioned. And all interventions by the judge, restricting rights, are duly substantiated and can be challenged. It is important that the object of the investigation is clearly limited, not a nebulous entity, with infinite contours”, said the professor from Coimbra.

Professor at the Federal University of Paraná (UFPR), Luiz Guilherme Marinoni, a specialist in Civil and Constitutional Procedural Law, criticized preliminary decisions that do not give the affected party the right to speak out about the case.

“The right to react against a decision that interferes in the legal sphere is a right that consists of the counterpart that ensures the possibility of an immediate injunction in the name of the effectiveness of judicial protection. Which didn’t happen here. People did not have access to the records to be able to defend themselves. This is absurd, it’s like hitting a blind man,” he said.

Constitutionalist Fernando Toller, from the Austral University, in Buenos Aires, drew attention to the fragility of the elements that could indicate a real risk to democracy. “There is such a creative interpretation, in my opinion, arbitrary, to the common meaning of words, how norms should be interpreted and, moreover, extensive in criminal sanctioning matters”, he stated. He criticized the fact that the Public Ministry, holder of the criminal action and natural recipient of the investigations, was not consulted when launching the operation.

Lawyer Rodrigo Xavier Leonardo used the metaphor brought by Jónatas Machado to insist on the need to observe legal and procedural rules to investigate crimes against democracy. He drew attention to the fact that the new Law for the Defense of the Democratic Rule of Law does not contain criminal offenses that criminalize expressing an opinion against institutions.

“It is not there to express an opinion against the Democratic Rule of Law. The verb is to try, and not only that, but with the use of violence and serious threats, to abolish the Democratic Rule of Law, preventing or restricting the exercise of constitutional powers”, he pointed out.

For him, the messages from businesspeople are abject demonstrations against the Democratic Rule of Law. “But it doesn’t seem to me that they can be qualified as preventing or disturbing the election. They are just abject demonstrations against the electoral process.”

More than that. He drew attention to the fact that the law itself contains a provision that protects freedom of expression, by providing that “expression critical of constitutional powers does not constitute a crime, nor does journalistic activity or the demand for constitutional rights and guarantees through marches, meetings, strikes, gatherings or any other form of political demonstration with social purposes”.

“It seems to me that we have to have the serenity, in the face of turbulence like the one we are experiencing in Brazil with polarization, not to try to rebuild the aircraft engine mid-flight, but to look at the manual, which is the Constitution, and positive law”, he concluded.