Defending Democracy with Authoritarian Means

Brazilian Congress is currently discussing a legislative proposal to replace the current Law of National Security, enacted during the time of the military dictatorship in Brazil. The proposal was recently approved by the Chamber of Deputies and is now being deliberated by the Federal Senate. It revokes the current Law of National Security and introduces a new section to Brazil’s Criminal Code defining various crimes against democracy, such as political violence, the dissemination of fake news in electoral campaigns and sabotage against democratic institutions. In the media, it is being claimed that, if approved by the Senate, there is a risk that current President Bolsonaro would wield his veto power to prevent parts of the proposal from acquiring the force of law. Among other consequences, this could lead to the end of on-going criminal investigations in the Brazilian Supreme Court (STF) against some of the President’s political allies, which are based on the Law of National Security, a landmark heritage of the authoritarian regime in Brazil.

The proposal and its background

This discussion comes at a time in which there seems to be a strong urge in Brazil’s political world to invalidate the Law of National Security. Enacted in 1983, this law is a heritage of the authoritarian regime that marked the period of military dictatorship in Brazil. Since its first enactment, it has suffered various transformations and has been used in different moments of Brazil’s history for pursuing questionable political means, such as to persecute politicians and activists and to repress social movements. Despite its authoritarian origins, this law has never been revoked by Brazilian Congress, and the STF so far did not pass any judgment on its constitutionality.

After losing relevance with the promulgation of the 1988 democratic Constitution, this law is being used with more and more frequency in the last years. The federal government has recently revived it to trigger investigatory proceedings against some of its critics. The STF has also used it to justify an order of prison against a federal deputy for a series of insults levelled against the STF online and to trigger criminal investigations to verify the systematic dissemination of fake news about the Court’s members by allies of the President.

For expert voices, these opposing uses of the law can be explained by the fact that it contains a curious amalgam. The last version of this law was formulated during a period of democratic transition, but in which the military was still in control of the political agenda and of the government in Brazil. As a result, it contains both authoritarian provisions remnant from the dictatorship era, and provisions that might be compatible with the current 1988 Constitution. The current law is a much lighter version in comparison to the previous versions enacted in the 1960s, at the height of the military regime.

The revocation of this law and its replacement by a new one is viewed by many in Brazil as an essential step for the maintenance of democracy and to safeguard its institutions against anti-democratic forces. At the least, it could help to dissipate a remaining heritage of the authoritarian regime from Brazil’s constitutional imaginary, in a moment in which the country is under the threat of radical right-wing and populist politics.

The current legislative proposal revokes the old law and introduces a new section in Brazil’s Criminal Code defining various crimes against democracy. It includes a chapter on crimes against democratic institutions, as well as against the peaceful and free exercise of political rights, and the functioning of institutions during the electoral process. The proposal also excludes the articles of the old law that contain a more authoritarian twist, such as the ones that criminalize journalistic activity and prohibit the public criticism of constitutional powers. It also contains a crime of mass misleading communication, against the dissemination of fake news that can compromise the electoral process, as well as a crime against political violence.

Despite the resistance of the basis of support of the President, the proposal was approved in the Chamber of Deputies on 4 May and is now under analysis in the Senate.

Presidential veto? Legislative vacuum?

At the current moment, it is unclear what will happen in the Senate. In the media, it has been reported that, if the Senate approves the new law without consulting President Bolsonaro, there is a risk that some of its provisions will be subject to a presidential veto. This could create a dangerous legislative vacuum that may hamper the fight against anti-democratic acts in Brazil. An eventual presidential veto could lead to what is called “abolitio criminis”, which occurs whenever a conduct that is recognized as criminal ceases to have a criminal status in the relevant legal system, which might lead to its immediate decriminalization, also for past events. This could ultimately lead to the cessation of on-going criminal investigations triggered by the STF against some of Bolsonaro’s allies. Not long ago, in a controversial move, the STF used the Law of National Security to initiate investigations with the aim of verifying the participation of President’s political allies in a massive scheme of fake news dissemination, as well as in a number of recent anti-democratic acts in Brazil.

Legal experts are divided as to when the decriminalization would occur. Some claim that the presidential veto leads to an immediate decriminalization. Others argue that the decriminalization only takes place if Brazilian Congress does not overturn the presidential veto. According to the Brazilian Constitution, Congress can overturn presidential vetoes within 90 days after the proposal is approved by the Senate. Another hindrance is that the overturn of a presidential veto requires an absolute majority of the two Chambers of Congress, a much higher quorum than the simple majority required for the approval of ordinary legislation. Currently, it is unclear whether this majority could be achieved.

In the media, it has been reported that, given the situation, some members of the STF are currently initiating negotiations with deputies and senators in order to speed up the voting process. The possibility of a congressional overturn could prevent that President Bolsonaro stops in one single act the on-going investigations about fake news and the anti-democratic acts that are currently conducted in the STF, and which target some of his political allies.

Is the old law unconstitutional?

Some political parties have recently triggered four requests in the STF for declaring the Law of National Security unconstitutional. The STF did not judge these requests yet. Rumors are that the STF will first wait for the Senate’s response to the new legislative proposal before it passes judgment about the constitutionality of the old law. According to some voices, if this judgment happens at all, invalidating the entire law is unlikely, as this would bring the risk of not having the criminal types to criminalize the most radical of Bolsonaro’s allies, who defend the closure of Congress and the STF and call for the return of Institutional Act Number 5 (AI-5), the most authoritarian Act of the military dictatorship in Brazil. For many years, this Act was used as an instrument to promote political repression and to punish enemies of the regime. Three members of the Supreme Court were deposed at the time.

Next steps

There is no concrete deadline for when the Senate will reach a final decision on the current legislative proposal. Political attention is now strongly focused on an investigative commission initiated to assess the federal government’s conduct on the disastrous administration of the COVID-19 crisis in Brazil. Because of this, the Senate’s deliberations on the new law may not be fast. It will thus also take time until President Bolsonaro receives the approved proposal for signature, which is the moment in which he could exercise his power of veto. Given that the Constitution empowers him to exercise either a partial or a total veto, or no veto at all, it is hard to predict what will happen.

Ironically, in the time in-between, the current Law of National Security – a landmark of authoritarianism in Brazil’s legal system – may assist the current fight against the action of anti-democratic groups. Its revival comes at a time in which the 2022 presidential elections are approaching, and the risks of fake news, political polarization and political violence are looming large.