constitutional democracy

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By ALMIR MEGALI NETO & MARCELO ANDRADE CATTONI DE OLIVEIRA*

Considerations on a recent article by Paulo Sérgio Pinheiro

Paulo Sérgio Pinheiro published, on December 8, 2022, on the website the earth is round the article “Militant Democracy”. In it, Paulo Sérgio Pinheiro highlights the need for society and the Brazilian State to define how militancy in defense of democracy can be exercised after four years of preaching and neo-fascist practices.

A reflection, therefore, extremely important and pertinent. And, therefore, we would like to make some considerations, by way of contribution and dialogue.

Paulo Sérgio Pinheiro, to address the issue, begins his argument by resorting to the work of Karl Loewenstein, a German jurist of Jewish descent who went into exile in the United States after the rise of Nazism. However, the first work by Karl Loewenstein cited there is not the famous article, from 1937, divided into two parts and published by the Journal of the American Association of Political Science,[I] entitled "Militant Democracy and Fundamental Rights".[ii] But "Brazil under Vargas",[iii] a lengthy report commissioned by the US Government on the political situation in Brazil, especially in the face of World War II.

Relying on the conclusions of Karl Loewenstein, Paulo Sérgio Pinheiro classifies the Vargas government as an “authoritarian dictatorship”. At this point, it would be interesting to consider that the 1937 Charter was at the origin of that type of constitution that Karl Loewenstein would call “semantic”, from 1951 and 1952 onwards, precisely because it subverted the very guaranteeist sense of constitution.[iv]

Paulo Sérgio Pinheiro also cites the speech of Argentine political scientist Juan Linz, in a lecture given at the University of Campinas, in 1975, in which Juan Linz would have classified the military dictatorship of 1964 as an “authoritarian regime”. There is no allusion, however, to an important book by Karl Loewenstein, “Political Reconstruction”, as early as 1946.[v] And, in particular, no indication as to what Karl Loewenstein himself wrote about post-1964 Brazil, the influence of an authoritarian presidentialism, supposedly of French origin, Gaullist, as he himself calls it (with all the historical misconceptions about Brazil , say, committed there by him).[vi]

Nevertheless, it is from this point that Paulo Sérgio Pinheiro makes reference to the important article “Militant Democracy and Fundamental Rights”, by Karl Loewenstein, to highlight, briefly, what would be the German author's objective with the text. For him, Loewenstein “examines how constitutional democracy is able to protect civil and political liberties, through limitations of democratic institutions, to contain fascism”.

Thus, in two direct quotes, not referenced, to Karl Loewenstein's article, Paulo Sérgio Pinheiro highlights the “dilemma” the author would face: “democracy and democratic tolerance would be being used for their own destruction. Under the cover of fundamental rights and the rule of law, the anti-democratic machine can be legally built and set in motion”. Then, Pinheiro states that Loewenstein lamented “the exaggerated formalism of the rule of law which, under the enchantment of formal equality, does not deem appropriate to exclude from the game those parties that deny the existence of its rules”.

Further ahead, in light of the example of the Weimar Republic, Paulo Sérgio Pinheiro concludes that attachment to the formalities of the rule of law would have been the cause of the perishing of democracy in Germany from 1919 to 1933.[vii]

For Paulo Sérgio Pinheiro, rescuing Karl Loewenstein’s reflections would be relevant for Brazil today, since, from his perspective, “contrary to what was proclaimed, the institutions of the Brazilian State did not work in the face of the rise of the extreme right with neo-fascist content, led by the President of the Republic”. According to him, “this deconstruction of the rule of law had the complicity of the Armed Forces and the inertia of both the Attorney General's Office, to prosecute crimes for which the president is responsible, and the National Congress, especially the Chamber of Deputies, which ignored more than a hundred requests for impeachment".

Paulo Sérgio Pinheiro goes on to say that “the situation is not worse only because the presidential elections defeated the leader of the extreme right, thanks to the annulment, by the Federal Supreme Court (STF), of the criminal proceedings against the then former president Luís Inácio Lula da Silva. Silva and his release from iniquitous prison, regaining his right to run for office – a decision that was corroborated, in 2022, by the UN Human Rights Committee, which recognized the violation of the former president’s rights by the Brazilian State, for denying him access to a fair trial and the presumption of innocence”.

When analyzing the national political scenario after the presidential elections of October 2022, Paulo Sérgio Pinheiro highlights the “unusual scenario of burning vehicles interdicting roads and thousands of citizens praying for military intervention at the doors of the barracks”. And he also says that “the authority that most acted in the protection of the rule of law and in resistance to this coup movement was Minister Alexandre de Moraes, president of the Superior Electoral Court (TSE)”. Thus, in his opinion, Minister Alexandre de Moraes “repelled attacks from the extreme right before, during and after the elections; defended the electronic ballot boxes, courageously faced the coup litigation, articulated the action of the Military Police and the Federal Highway Police against roadblocks, imposing fines and freezing assets of financiers of the riots”.

After the election of Luiz Inácio Lula da Silva to the Presidency of the Republic, as well as in view of the enactment of the Law for the Defense of the Democratic State of Law, Paulo Sérgio Pinheiro moves towards the conclusion of the text stating that “society and the State will have to define, therefore, how militancy can be exercised, in defense of democracy, after the new era that will begin on January 1, 2023”. And, at the end of the text, he raises the following question, “after four years of preaching and neo-fascist practices, it is urgent to reflect: what to do so that, gradually, Brazilians who fell into this trap of 'military intervention' and believed in bravado of Bolsonarism can become republican citizens again?”.

Although the comparison of historical periods underlying Paulo Sérgio Pinheiro's argument may still be subject to criticism, it should be said that the diagnosis presented by Karl Loewenstein in “Militant Democracy and Fundamental Rights", as we said earlier,[viii] starts from a mistaken premise, that of the requirement of restriction or suspension of supposed fundamental rights in the name of the defense of democracy, even beyond hypotheses already foreseen by the constitution itself.

Contrary to what was stated by Karl Loewenstein, authoritarian practices do not constitute the regular exercise of rights, but abuse of rights, and therefore illegal acts, disapproved by the constitutional order. As precisely said by Professor Lenio Streck: “a responsible conception of law and democracy states that subverted rights are no longer rights. Whoever abuses a right in the abstract is no longer acting within the law and for the law, that is, acting democratically. Therefore, abuse of rights is no longer a right itself”.[ix] Otherwise, the end of every democratic regime could be authoritarianism. The project of building a constitutional democracy would be a struggle in vain. Once again, we help Lenio Streck to say that “constitutions are not suicide pacts. Democracy is not a suicide pact.”[X]

It would also be worth highlighting what could appear to be an internal contradiction in Paulo Sérgio Pinheiro's argument. It was said that, for him, the paralysis of the National Congress and the Attorney General's Office to prosecute the President of the Republic for the crimes of which he is accused would indicate that "the institutions of the Brazilian State did not work in the face of the escalation of the extreme right with neo-fascist content" . It so happens that, lines ahead, the author himself recognizes that the defeat of Jair Bolsonaro in the 2022 presidential elections was only possible thanks to the actions of the Federal Supreme Court, which annulled the convictions suffered by Luiz Inácio Lula da Silva, and the Superior Court Eleitoral, which through the actions of its President, Minister Alexandre de Moraes, managed to curb the coup adventures of the extreme right before, during and after the election.

Given this scenario, the questions remain: are the institutions of the Brazilian State working or not? And more: are they or are they not working in defense of fundamental rights and the rule of law? Was the annulment of the convictions unfairly suffered by Luiz Inácio Lula da Silva, which were handed down by an incompetent and biased judge, or was it not a reinforcement of the rule of law? Does the investigation of anti-democratic acts, as well as the accountability of their authors by electoral justice, reinforce the rule of law or not? However, instead of thinking in dichotomous terms, we consider that the question about the construction process, in time and space, of a democratic State of law is more complex, precisely because it goes through a process of social learning with the law and with politics, in the long term, which is subject to setbacks, setbacks and moments of inertia, but capable of self-correction.[xi]

It is also worth remembering that for Karl Loewenstein, it is not exactly up to the courts to play a role in the so-called militant democracy, but to democratic governments. Militant democracy would address political institutions, in the sense of exercising extraordinary powers, supposedly explicit or even implicit in the constitution. However, the Federal Supreme Court, when initiating the investigation of the fake news, and the Superior Electoral Court, by holding the perpetrators of anti-democratic acts accountable, are not using supposed exceptional powers, even in defense of democracy.

The defense of democratic regimes need not be treated as something exceptional. And thus, democracy need not be militant in the terms proposed by Karl Loewenstein to defend itself. It cannot intend to use authoritarian measures with authoritarianism, under the risk of transmuting itself into authoritarianism. It is enough for democracy, to defend itself, to be a constitutional democracy. [xii]

*Almir Megali Neto is a doctoral candidate at the Faculty of Law of the Federal University of Minas Gerais (UFMG).

*Marcelo Andrade Cattoni de Oliveira Professor of Constitutional Law at the Faculty of Law of UFMG.

Notes


[I] LOEWENSTEIN, Karl. Militant Democracy and Fundamental Rights, I. The American Political Science Review, vol. XXXI, No. 03, 1937, p. 417-432.

[ii] LOEWENSTEIN, Karl. Militant Democracy and Fundamental Rights, II. The American Political Science Review, vol. XXXI, No. 04, 1937, p. 638-658

[iii] LOEWENSTEIN, Karl. Brazil under Vargas. New York: The MacMillan Company, 1942.

[iv] LOEWENSTEIN, Karl. Reflections on the Value of Constitutions in Our Revolutionary Age in ZURCHER, Arnold J. (ed.). Constitutions and Constitutional Trends since World War II. An Examination of Significant Aspects of Postwar Public Law with Particular Reference to the New Constitutions of Western Europe. New York: New York University Press, 1951, p. 191-224. LOEWENSTEIN, Karl. Réflexions sur la valeur des Constitutions dans une époque révolutionnaire. Esquisse d'une ontologie des Constitutions. Revue Française de Science Politique, no. 1, 1952, p. 5-23. LOEWENSTEIN, Karl. Réflexions sur la valeur des Constitutions dans une époque révolutionnaire. Esquisse d'une ontologie des Constitutions (Fin). Revue Française de Science Politique, n. 2, 1952, p. 312-334. Although not directly quoted, see LOWEWENSTEIN, Karl. Theory of the Constitution, 2 ed. Trans. A. Gallego A. Barcelona: Ariel, 1976, p. 218-222.

[v] LOEWENSTEIN, Karl. Political Reconstruction. New York: MacMillian Company, 1946.

[vi] LOWEWENSTEIN, Karl. Theory of the Constitution, 2 ed. Trans. A. Gallego A. Barcelona: Ariel, 1976, p. 494-495.

[vii] This assertion, however, is unfounded. This is because, as an extensive bibliography shows, what actually happened was a coup d'état and not a mere abuse of legal instruments against the current law itself. Cf. For example, the classic FRAENKEL, Ernst The Dual State: a contribution to the theory of dictatorship. New Jersey: Lawbook, 2007, p. 4-6. About him, see LIMA, Martonio Mont'Alverne Barreto. Supreme Court: Prussia against Reich. São Paulo: Contracurrent, 2022, p. 87-111. CATTONI DE OLIVEIRA, Marcelo A. and LIMA, Martonio Mont'Alverne Barreto. Justice and politics – the past that still challenges the present. In: BERCOVICI, Gilberto (coord.). One hundred years of the Weimar Constitution (1919-2019). São Paulo: QuartierLatin, 2019, p. 641-656. And also PAUER-STUDER, Herlinde. Justifying Injustice: Legal Theory in Nazi Germany. Cambridge: University of Cambridge, 2020, p. 45-53; and p. 77-78.

[viii] MEGALI NETO, Almir; CATTONI DE OLIVEIRA, Marcelo Andrade. Constitutional democracy among militants against democracy and militant democracy. Emporium of Law, 2022. Available at: https://emporiododireito.com.br/leitura/a-democracia-constitucional-entre-militantes-contra-a-democracia-e-a-democracia-militante.

[ix] STRECK, Lenio. Gandra's criticisms of the STF and the story of the crocodile under the bed. Conjure, 2022. Available at: https://www.conjur.com.br/2022-dez-01/senso-incomum-criticas-gandra-historia-crocodilo-debaixo-cama.

[X] Ibid.

[xi]HABERMAS, Jürgen. Constitutional Democracy: a paradoxical union of contradictory principles? in SADURSKI, Wojciecl (ed). Constitutional Theory. Aldershot: Dartmouth, 2005, p. 69-84

[xii] LIMA, Martonio Mont'Alverne Barreto. “Democracy that defends itself”, The people, 13/12/2022, Available at https://mais.opovo.com.br/colunistas/martonio-montalverne/2022/12/13/a-democracia-que-defende-a-si-mesma.html.

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