By Leonardo Desideri
Justice Alexandre de Moraes, of the Federal Supreme Court (STF), decided on Wednesday (11) to prohibit, without temporal delimitation, any demonstration that occupies or blocks roads, highways, spaces and public buildings throughout the national territory.
Moraes’ decision was confirmed by the majority of the Court this Thursday (12). For two jurists consulted by Gazeta do Povo, the decision is, on several levels, an affront to the Constitution.
The problem, according to them, begins with the lack of competence of the Judiciary to make such a decision.
Alessandro Chiarottino, professor of Constitutional Law and Doctor of Law at USP, says that “the restriction on the right to demonstrate, if it is generalized throughout the country, necessarily requires the decree of a state of siege”, which can only be done by the president of the Republic and requires the consent of the other two powers.
“A state of siege is created by court decision – which per se is unconstitutional – and, even more, it is a state of siege that will be supervised by whom? By the Judiciary itself?” asks Chiarottino.
The jurist Adriano Soares da Costa, former judge and specialist in Electoral Law, states that “we are living in a very anomalous situation, without constitutional provision and with severe risks for the exercise of citizenship itself”.
“It is a power of a Court without any constitutional provisions and precedents in democracy, as journalist Glenn Greenwald said”, he comments, in reference to tweets by Greenwald that were the target of criticism from the left on social networks.
For him, the decision “ends up creating the police of the regime”, for having an excessively open character and not specifying what type of demonstration should be prohibited. “It’s such an open decision that it gives the corner guard the power to arrest anyone,” he criticizes.
“What demonstrations are prohibited? With what content? Any and all demonstrations? The big problem is that we are not clear about the extent of the decision itself, especially for who will comply with it. There may even be arrests. It is a decision of an open extension, and whoever executes the decision will have carte blanche.”
Jurists also see the lack of temporal delimitation of the decision as a problem. “The state of siege instrument itself has a fixed period, which is a maximum of 30 days. If an extension is necessary, it would have to be approved by the National Congress”, comments Chiarottino.
“The prohibition cannot be ad aeternum. There has to be a time limit, as this is an exceptional measure”, says Soares da Costa.
In the request that gave rise to the decision, the Advocacy General of the Union (AGU) requests the restriction of the right to demonstrate “occasionally and momentarily, given the situation of absolute exceptionality”.
But, in his decision, Moraes does not establish the duration of the restrictions.
The attorney general and professor of Constitutional Law André Uliano, columnist for Gazeta do Povo, agrees with the determinations made by Moraes.
In his view, the text of the decision is “within a specific context”, dealing with a post that circulates on social networks with the title “MEGA NATIONAL MANIFESTATION – FOR THE RETURN OF POWER”.
“Within the current context, it can be concluded that a demonstration for the ‘retake of power’, a few days after Sunday’s events, has illicit contours and deserves special attention,” he says.
“The electoral result no longer has any institutional mechanism available for contestation, and requests for action by the Armed Forces to reverse it are illicit, in accordance with art. 286, sole paragraph, of the Penal Code. This crime does not require violence or serious threat [to merit punishment],” he adds.
DECISION ON DEMONSTRATION INVENTS CRIMES AND SANCTIONS AND PROHIBITS WHAT IS ALREADY PROHIBITED, SAYS JURIST
In Chiarottino’s view, it is unconstitutional to establish in a court sentence punishments for infractions and crimes that do not even exist or whose penalties are already determined by law.
There are already sanctions provided for in the Brazilian Traffic Code for those who block public roads, and detention for disobedience or resistance to arrest is already provided for in the Penal Code.
Moraes’ decision establishes fines different from those provided for in the Brazilian Traffic Code for roadblocks.
In addition, in the text, the minister determines the arrest in flagrante delicto “of those who, in disobedience to the measures adopted to comply with this decision, occupy or obstruct urban roads and highways”.
It is unclear whether the arrest in flagrante delicto will only occur in case of contempt of the order to clear the roads – which the law already provides for – or if the blockade will motivate the arrest without a prior dialogue with the authority – which would go beyond the law.
“You cannot, by sentence, invent new crimes. Neither the state of siege or defense mechanism allows this. The crimes are those foreseen in our Penal Codeal and extravagant legislation,” says Chiarottino.
“Now, let’s remember: the right to demonstrate is not the right to block public roads, unless specific legislation exists for this. For example, for Avenida Paulista, there is a municipal law that allows demonstrations, with some limitations.
“But the rule is that the right to demonstrate does not allow people to occupy public roads.”
“It makes it possible to occupy public places or places accessible to the public, such as squares, parks, open spaces… These are the typical places”, he emphasizes.
By Moraes’ decision, it is worth remembering, even protests in public spaces are prohibited.
Soares da Costa highlights a paradox of recent Moraes decisions in the name of defending democracy: it is no longer possible to protest against them without suffering some kind of sanction.
“Eventually, for example, the protest about the arrest of 1,200 people also becomes the object of sanctions? This is the big problem. This decision imposes limitations on citizenship, on free demonstration, on freedom of expression… And it creates a political environment that we don’t know in democracy”.
Read the main part of Moraes’ decision in full:
I FULLY GRANT THE REQUESTS FORMULATED BY THE ATTORNEY GENERAL (PET 792/2023, doc. 3627), for:
(a) ORDER Public Authorities at all federative levels, in particular public safety agencies, to adopt the necessary measures to PREVENT ANY ATTEMPTS TO OCCUPY OR BLOCK PUBLIC ROADS OR HIGHWAYS, as well as public spaces and buildings throughout the country national territory, notably — but not only — in the places indicated in the post “MEGA NATIONAL DEMONSTRATION — FOR THE RETURN OF POWER”, reproduced in the AGU application (e-doc. 3.627);
(b) DETERMINE THE PROHIBITION OF INTERRUPTION OR OBLIGATION TO THE FREEDOM OF TRAFFIC THROUGHOUT THE NATIONAL TERRITORY, as well as access to public buildings, under penalty of IMMEDIATE APPLICATION, BY LOCAL AUTHORITIES, OF AN HOURLY FINE IN THE AMOUNT OF R$20,000.00 (twenty thousand reais) FOR INDIVIDUALS AND R$100,000.00 (one hundred thousand reais) FOR LEGAL ENTITIES that fail to comply with this prohibition through direct participation in anti-democratic acts, by incitement (including electronic means) or by providing material support (logistical and financial) to the practice of these acts;
(c) DETERMINE to local authorities, in particular agents of federal and state public security agencies, that they must, under penalty of personal responsibility, EXECUTE THE ARREST IN FLAGRANT DELICT of those who, in disobedience to the measures adopted for the fulfillment of this decision, occupy or obstruct urban roads and highways, including adjacent ones, as well as invade public buildings;
(d) DETERMINE to the local authorities the IDENTIFICATION OF ALL VEHICLES USED IN THE PERFORMANCE OF THESE ACTS, WITH THE QUALIFICATION OF THE RESPECTIVE OWNERS, AS WELL AS THE UNAVAILABILITY OF THESE VEHICLES, with the immediate registration of this encumbrance with the local transit agency;
(e) DETERMINE the dispatch of an official letter to the company Telegram, so that, within a period of 2 (two) hours, it proceeds to BLOCK the channels/profiles/accounts described in e-doc 3.627, as well as any groups that are managed by users identified below, under penalty of a daily fine of BRL 100,000.00 (one hundred thousand reais), with the provision of their registration data to this SUPREME COURT and the full preservation of its content.
With information from Gazeta do Povo