The invasion of the seats of Congress, the Planalto Palace and the Federal Supreme Court (STF), last Sunday (8) should give new impetus, within the Judiciary, to the defense of a theory known as “militant democracy”, also called “defensive democracy” by some authors.
This is an idea developed in 1937 by the German jurist of Jewish origin Karl Loewenstein (1891-1973). He proposed that democracy had to have mechanisms to protect itself from actors who could use its freedoms to destroy it.
It was a criticism of the Constitution of the Weimar Republic, which emerged in Germany in 1919, after the First War, and adopted a line of neutrality in relation to the various ideologies in dispute at the time, which favored the rise of Nazism and its suffocation in 1933.
The provocative phrase of Joseph Goebbels, Minister of Propaganda in Nazi Germany, became famous, that “it will always be one of the best jokes of democracy that it gives its mortal enemies the means to destroy itself”.
Since then, several democracies in Europe have adopted the theory to limit the formation of extremist parties and, in the case of Germany, to prohibit holocaust denial.
In Brazil, the theme has been gaining strength in recent years due to decisions of the Federal Supreme Court (STF), concentrated on Justice Alexandre de Moraes, which have restricted several fundamental rights – such as freedom of expression and, now also freedom of assembly for demonstrations – in the name of “protecting” the democratic regime.
Although he never used the term or made explicit reference to the theory, Moraes usually bases his decisions on this premise.
“The Federal Constitution does not allow the propagation of ideas contrary to the constitutional order and the Democratic State, nor the holding of demonstrations on social networks aimed at breaking the rule of law”, he wrote, for example, in February 2021, in the order of arrest of deputy Daniel Silveira (PTB-RJ), who had praised the impeachment of STF justices by AI-5 in 1964.
Moraes argued that freedom of expression could not serve to destroy republican institutions, notably the STF, which would ultimately be the guarantor of democracy and, consequently, of freedom of expression itself.
Last week, on the occasion of acts of vandalism in the headquarters buildings of the Three Powers, the minister began to impose severe restrictions on the right to assemble, for the same reason.
Understanding that the demonstration represented an attempt to abolish the Democratic State of Law, it prohibited the occupation of highways, spaces and public buildings, as well as ordered the arrest of anyone who tried to hold demonstrations in these places.
Days before, the minister had already ordered the arrest of demonstrators camped in front of Army barracks who asked for intervention by the Armed Forces. In this decision, he made reference to historical characters who fought Nazism.
“Brazilian democracy will no longer support the ignoble policy of appeasement, whose failure was amply demonstrated in the attempt to reach an agreement between the then English Prime Minister Neville Chamberlain and Adolf Hitler. Public agents (current and former) who continue to behave intentionally in this way, cowardly agreeing to the breakdown of democracy and the installation of a state of exception, will be held accountable, because, as Winston Churchill taught, ‘an appeaser is someone who feeds a crocodile waiting to be the last to be devoured’”, wrote the Justice.
But even before this evident demonstration of “militant democracy”, Moraes was already receiving praise from sectors of the intelligentsia and the academic community in the field of law, for his combative action against militants, supporters and politicians close to former president Jair Bolsonaro, from the assumption that he was a threat to democracy.
In November, in an article published on the legal website Conjur, the criminalist Sidney Duran Gonçalez, master and doctoral candidate in Criminal Law at the Universidad de Salamanca, wrote that the demonstrations in the barracks, for demanding an intervention by the Armed Forces against the Judiciary, especially regarding the Superior Electoral Court (TSE), which organized the elections, based on a misinterpretation of the Constitution, would deserve a reprimand based on the idea of self-protection of democracy.
“The demonstrations we have seen lately are clearly a projection of what he has been preaching for a long time, his biggest supporter, the President of the Republic, who was elected by popular vote in a democratic way, turns against the system and encourages mistrust about the elections, putting the whole system into disrepute,” he wrote.
In the same month, political scientist and former Minister of the State Secretariat for Human Rights Paulo Sérgio Pinheiro published an article defending the relevance of reflections of Loewenstein to Brazil.
It argued that the institutions were unable to contain an “extreme right-wing escalation with neo-fascist content, led by the President of the Republic”, and that a “deconstruction of the rule of law had the complicity of the Armed Forces” and “inertia” of the Public Prosecutor’s Office of the Republic and Congress for refusing to hold Bolsonaro accountable for alleged attacks on the constitutional order.
After the election and the defeat of the president, Pinheiro suggested the possibility of continuing measures to defend democracy in the face of acts against Lula’s election in front of the barracks.
THESIS IS CONTROVERSIAL FOR BEING ABLE TO FACILITATE ABUSE OF AUTHORITY
Before the invasion of powers, there were more criticisms or reservations to the application, in Brazil, of the theory of militant democracy.
“The doctrine is controversial, as malicious governments or co-opted courts can abuse their authority to impose limits on those who criticize and challenge them. The question of who guards the guardians always reappears when someone is given the power to censor or restrict rights”, wrote Oscar Vilhena Vieira in March 2020, in Folha de S.Paulo.
Even so, he noted that calls for protests against Congress and the STF should lead citizens and institutions to commit themselves to the task of imposing limits to contain “everything that conspires against democracy”.
In May 2021, the sociologist and doctor in human geography from USP Demétrio Magnoli spoke out more harshly against the idea of militant democracy when commenting on the text of the bill that would replace the former National Security Law, a norm also inspired by in Loewenstein’s theory.
He criticized, mainly, parts of the proposal that allowed criminalizing the defense of authoritarian ideas.
“[Daniel] Silveira has the right to praise the military regime and its laws, just as old-fashioned communists are covered by the principle of freedom of expression when proposing the replacement of Congress by the soviets. What is prohibited, for one as for the others, is crossing the line between word and action”, he wrote in the article, also published by Folha.
“We already have enough laws about the boundaries of free speech. The Law of the Democratic State must be limited to violent action against institutions. Our democracy does not militate”, he concluded.
An even more scathing critique of militant democracy was published in November 2022 by Insper professor Fernando Schüler, political scientist and Doctor of Philosophy.
In an article in Veja magazine, he recalled that, in the name of theory, the STF blocked Rodobens bank accounts, due to the fact that, in the past, it had granted a loan for the acquisition of trucks that were taken to Brasília to bolster the act in front of the Army HQ against Lula da Silva.
He also cited as exaggerated examples of the application of the theory, in Brazil, the suspension of accounts, on social networks, of the economist Marcos Cintra, who expressed doubts about the calculation of electronic ballot boxes; and also the businessman Luciano Hang, because of private conversations on WhatsApp.
His argument was that a theory used against Nazism could not be vulgarly applied in functioning democracies.
“Who would have the prerogative to decide who the existential enemy is and to whom should we hand over the power to act beyond the laws and the Constitution, once the ‘extremely exceptional’ situation has been defined? And more: what instruments would militant democracy give us to protect ourselves from itself? If a minister decides to censor and ban a deputy, even if the Constitution clearly says he cannot do that, what to do? What if a film is censored, when the laws say it cannot be done?”, he questioned.
With information from Gazeta do Povo