The militant democracy

Dora Longo Bahia. Democracy (project for Avenida Paulista II), 2020 Acrylic, water-based pen and watercolor on paper 29.7 x 21 cm
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By PAULO SERGIO PINHEIRO*

After four years of preaching and neo-fascist practices, society and the State will have to define how militancy can be exercised in defense of democracy

One of the most accurate analyzes of the effective functioning of the Estado Novo regime in Brazil is in Brazil under Vargas (Russell and Russell, 1942), work of the German philosopher and political scientist Karl Loewenstein (1891-1973). It is at the conclusion of this book – by the way, dedicated to Thomas Mann and unfortunately still not translated into Portuguese – that an innovative concept is proposed, at the time, to characterize that dictatorship: “Reduced to the simplest terms of analysis, the regime of [ Getúlio] Vargas is not democratic, nor a “disciplined” democracy; he is not a totalitarian or a fascist; is an authoritarian dictatorship, for which French constitutional theory coined the term regime personnel”. Later, in 1975, at the International Conference on History and Social Sciences, at the State University of Campinas (Unicamp), the political scientist Juan Linz, from Yale University, returned to the concept of authoritarianism to characterize the regime of the military dictatorship of 1964.

But Karl Loewenstein, in addition to producing an influential work on constitutional law, in 1937, when Nazism was far from consolidated, created the term “militant democracy”. In two seminal articles, “Militant Democracy and Fundamental Rights” (Militant Democracy and Fundamental Rights) I and II, examines how constitutional democracy is able to protect civil and political liberties, through limitations of democratic institutions, to contain the fascism of the time. For Karl Loewenstein, “democracy and democratic tolerance are 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”.

He laments “the exaggerated formalism of the rule of law which, under the enchantment of formal equality, does not consider it appropriate to exclude from the game those parties that deny the existence of its rules”. He also warns that disobedience to constitutional authorities naturally tends to spill over into violence, violence becoming a new source of “disciplined emotionalism”, on which fascist regimes are based. And he cites a relevant example of how a democracy perished, precisely because it did not have this militant protection: “In the Weimar Republic [in Germany from 1919 to 1933], the lack of militancy against subversive movements, even though they were clearly recognized as such, was highlighted both as a dilemma of post-war democracy and as an illustration and warning”.

 

The present moment in Brazil

Why are Karl Loewenstein's reflections relevant to the present moment in Brazil? Contrary to what was proclaimed, the institutions of the Brazilian State did not work in the face of the extreme right-wing escalation with neo-fascist content, led by the President of the Republic. 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 was responsible, and the National Congress, especially the Chamber of Deputies, which ignored more than one hundreds of orders impeachment.

The situation is only not worse 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 and his release from the iniquitous prison , regaining his right to stand as a candidate – 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, by denying him access to a fair process and the presumption of innocence.

However, the ex post of the election leaves us with an unusual scenario of burning vehicles blocking roads and thousands of citizens praying for military intervention at the doors of the barracks. 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). He firmly countered attacks from the far right before, during and after the elections; defended the electronic voting machines, 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.

On December 12, with the inauguration of the president-elect, the president of the TSE will not tend to act as incisively as he did during the last quarter of 2022. In addition to the blockages, as Camila Rocha recalled (Folha de São Paulo, on 3.12.2022), there are records of vandalism, looting, fires, kidnappings, most of these cases in the states of Mato Grosso, Rondônia and Santa Catarina, organized and financed by wealthy businessmen who attacked democracy, covered by widespread impunity for part of state authorities.

After the election of Luís Inácio Lula da Silva as President of the Republic, crimes against the Law for the Defense of the Democratic State of Law (4.5.2021) followed and continue. Thus, 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.

After four years of neo-fascist preaching and practices, it is urgent to reflect: what to do so that, gradually, Brazilians who fell into this “military intervention” trap and believed in the bravado of Bolsonarism can become republican citizens again?

*Paulo Sergio Pinheiro he is a retired professor of political science at USP; former Minister of Human Rights; UN Special Rapporteur on Syria and member of the Arns Commission. Author, among other books, of Strategies of illusion: the world revolution and Brazil, 1922-1935 (Company of Letters).

 

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