The left and the paradox Alexandre de Moraes

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By EDUARDO BORGES*

Alexandre de Moraes will always be an agent of the bourgeois State acting circumstantially within the interests of this same State

I am aware that in the current situation this article has the potential to generate heated and controversial debates, but I will remain reluctant in the name of the good fight of ideas. In the XNUMXth century, François Pierre Guillaume Guizot, a liberal French politician, but with a rather moderate tendency, said: “When politics enters the precincts of the Courts, Justice withdraws through some door”.

Since Penal Action 470, known as “mensalão”, this phrase has become the order of the day in Brazil. The saga of celebrity judges began from there. Then came “doctor” Sérgio Moro and his trained attorneys, politically instrumentalizing Operation Lava Jato under the approval of the corporate media and a whole range of liberals and reactionaries, including some who today complain about the alleged activism of Minister Alexandre de Moraes. Sérgio Moro shamefully played politics and mocked all of us. Guizot's phrase continued to cast doubt on our beliefs in the true blind virtue of justice.

In 2018 Bolsonarism realized that there was an alternative way to circumvent democracy to win an election, it was enough to create lies (also known as fake news) and repeat them to exhaustion. They hit the nail on the head, won the election and found themselves facing the challenge of sustaining for four years (preparing four more) a mock government that clearly opted for debauchery as a strategy for political action. Fake news gained its institutionality.

Brazil has turned into a big arena with a mediocre clown playing the role of president based on the permanent threat to the democratic rule of law. You didn't need to be very smart to realize that the coup came to power with Jair Bolsonaro. We flirted daily with speeches and actions that distorted the democratic and institutional game. In a political environment as vulnerable as that created by Bolsonarism, it would be necessary for agents in the institutional political field to act vigorously in defense of democracy and the balance between the three powers. It would be necessary for the system of checks and balances to work in order to remove any risk of institutional rupture from the Republic.

However, what I understand and intend to reflect on in the following lines is that we failed in this endeavor to maintain the balance between powers and institutional stability. In the last four years, we have become a “no man's land”, with an angry and coup-mongering president, a congress hostage to secret budgets and a judiciary with vigorous tests of initiatives that flirted with both personal vanity and authoritarianism. This recipe would certainly not make a good cake.

In recent years, a Supreme Court judge has become a central figure in Brazilian society. For some he is a "dictator's pup", for others, a "national hero". I am referring to Minister Alexandre de Moraes. Seeking an analysis as neutral as possible (if that is really possible) I invite the reader to join me in the challenge of seeking to establish a narrative about Alexandre de Moraes and his role in the current situation of the Brazilian Republic.

When a supreme court judge starts to become famous for overacting (without passing judgment on them) something is wrong. Judge getting famous is not good under any circumstances. A very active judge is dangerous because we run the risk of naturalizing a possible imbalance between the three powers. The political field is already occupied by the legislative and executive powers, therefore, common sense dictates that the judiciary act sparingly when having to flirt with actions in the political field.

But would Alexandre de Moraes really be acting like a small dictator as preached by the former president and his supporters? Would he be extrapolating the legal field and entering into political issues that do not concern the STF? Let's start with a basic question: is a constitutional court an eminently legal court or also a political court? As much as one would like to deny it, a constitutional court is also a political body. And what's the best argument for that? Our own Constitution. By providing for the possibility of broad sectors of society being able to appeal to the STF, our Magna Carta transformed the Supreme Court into an ultimate instance of appeal with the function of responding to political and criminal demands both from members of the National Congress, as well as from security forces and government oversight bodies.

As for Jair Bolsonaro supporters, who complain about the excessive judicialization of political issues in Brazil, they need to be reminded that the STF only acts when provoked. Minister Luiz Fux rightly commented on this: “I am increasingly aware that the judicialization of politics and social issues is an absolutely wrong expression. Because jurisdiction is not a function that can be exercised ex officio, it is a provoked function”.

That is, the STF does not act ex officio, only when provoked. And who has provoked the STF in recent years? The parliamentarians, whose political issues were elected to resolve internally in their respective legislative houses, if they don't do it, someone has to do it. In recent years, several decisions by Minister Alexandre de Moraes were taken based on provocations from parliamentarians, the Federal Police and the AGU, OAB or PGR. Regardless of what his decision was, he was far from acting as a “dictator” as Bolsonaristas want to believe.

During the COVID-19 pandemic, Alexandre de Moraes took a series of measures that were essential to improve the social chaos caused by the virus. It was at the request of the Federal Council of the Brazilian Bar Association that he lifted restrictions on the Access to Information Law. In pandemic times, it is necessary to clarify the population as much as possible about the facts. Still linked to the pandemic, Alexandre de Moraes, at the request of President Jair Bolsonaro himself, granted a Precautionary Measure to remove the requirement of the Fiscal Responsibility Law during Covid-19. This certainly helped the federal government decisively and there was no Bolsonarist calling him a “dictator”.

Responding to a request that came from several governors, Alexandre de Moraes suspended the debts of several states with the Union for six months. Consequently, the resources that states failed to use to pay debts were allocated to actions to combat the spread of the new coronavirus. The Federal Council of the OAB entered the field again acting together with the STF in defense of society. Faced with the challenges posed against the pandemic, the autonomy of States would be necessary to act more rigorously in relation to social isolation. The following is an excerpt from Alexandre de Moraes' decision, demonstrating a clear concern with respect for the balance between powers:

“In times of severe crisis, the strengthening of the union and the expansion of cooperation between the three powers, within the scope of all federative entities, are essential and essential instruments to be used by the various leaders in defense of the public interest, always with the absolute respect for the constitutional mechanisms of institutional balance and maintenance of harmony and independence between the powers, which must be increasingly valued, avoiding the exacerbation of any harmful personalities in the conduct of public policies essential to combating the COVID-19 pandemic”.

However, regardless of the actions taken during the pandemic, a 2019 Survey, known as the “Survey of Fake News”, with Alexandre de Moraes as rapporteur, had the potential to extrapolate the legal field and place itself on the balance sheet of the fierce political dispute that was consolidated in Brazil with the rise of Jair Bolsonaro and his followers. This is the great fact that, until today, puts the minister on trial by leftists, liberal rightists and Bolsonarists. The behavior of the minister at the head of the aforementioned inquiry has rightly given rise to a profound reflection not only on the Brazilian legal system, but also on how powers are equivalent and respected in the name of democratic balance and the defense of the State itself. Not to mention the door that opened for the almost eschatological debate around the limits of freedom of expression in Brazil.

Used by Bolsonaristas and by Jair Bolsonaro himself as the main reason for his coup-like actions, the fake news Inquiry has also served to place sectors of the left before the paradox of naturalizing the judicialization of politics by an eminent representative of the bourgeois State and its ruling elite.

Inquérito 4.781 (of fake news) features an investigation filed by Minister Dias Toffoli (at the time president of the STF) as a result of denunciations of false and slanderous news against members of the Supreme Court. By appointing the recently sworn-in Alexandre de Moraes as rapporteur, Dias Toffoli committed, from the outset, two inconsistencies with the potential to contaminate the entire process, namely: (i) the Inquiry was opened ex officio, contrary to the normal rite that the STF, in cases like these must be filed by bodies such as the Attorney General's Office or the Federal Police, which have the prerogative to initiate investigations; (ii) By appointing Alexandre de Moraes, Dias Toffoli broke another protocol when the rapporteurship should be the result of a lottery among the magistrates.

As for the fact that the Public Ministry or the Federal Police did not take the initiative to investigate the threats to the Court, would this not have been an omission by these bodies that would justify the ex officio act on the part of Dias Toffoli? Ministers and their families were really threatened by allies of President Jair Bolsonaro, should the Supreme Court, due to the lack of initiative by the PGR and the PF, not act? Realize that the debate on the subject is much more complex than Bolsonarist intrigues make us see.

Dias Toffoli justified the opening of the ex-officio inquiry based on article 43 of the Internal Regime of the STF. Here is the text: “Art. 43. In the event of an infringement of criminal law at the seat or dependency of the Court, the President will initiate an investigation, if it involves an authority or person subject to his jurisdiction, or will delegate this attribution to another Minister”.

We already have here a small polemic of legal interpretation. Wouldn't he have forced the minister a bit in his interpretation of the article by equating "offenses with fake news against ministers of the STF” with “infringement on the premises of the court itself”? With the word the interpreters of law.

Certainly, something that starts with this degree of instability runs the risk of having to deal, over time, with criticism from its future defendants. In an interview with the newspaper Folha de S. Paul attorney Fábio George Cruz da Nóbrega, clarifying what he called the “original defect” of the Inquiry of Fake News, said: “Ministers cannot concentrate different roles, of victim, investigator and judge, because this breaks the impartiality of the trial”.[I] I see no exaggeration in the prosecutor's statement. However, in defense of Minister Dias Tofolli, it is worth remembering that the Federal Council of the OAB, the Association of Federal Judges of Brazil (Ajufe), the Association of Brazilian Magistrates (AMB) and the National Association of Magistrates of Justice have expressed support for the investigation. of work (Anamatra).

Therefore, regardless of this “original vice”, would there be room and need in the current Brazilian political situation for opening an investigation like this? I think so. Therefore, the problem is not in the content, but in the way in which the inquiry started and is being conducted. Faced with the avalanche of fake news used in the 2018 election race (from gay kit to bottle of dick) it is undeniable that the Brazilian political and electoral system was put to the test, suffered serious setbacks and needed to be protected in the 2022 election. disinformation was put into operation, without precedent, in Brazil and what we saw was the naturalization of slogans against the Democratic State of Law and democratic institutions.

A parliamentarian, son of the President of the Republic, stated the following: “If you want to close the STF, do you know what you do? Not even a jeep. Send a soldier and a corporal.” In an interview, this same parliamentarian stated that the government's response to an alleged radicalization of the left would be answered "via a new AI-5". When this type of phrase comes naturally from the mouth of an agent so close to power, it's good to turn on the yellow light.

But how to deal with it respecting the norms of the legal system and due process of law, ensuring the broad and unrestricted defense of the accused? This is the big question to be debated: In defense of the State and the personal security of its agents, can a legal "anything goes" be used? After all, wasn't that how agents of the bourgeois (or aristocratic) State had always acted since colonial times? Was it not in the name of defending the State or an anachronistic “principle of State Reason” that the dictatorship established in 1964 arrested, tortured and killed? The fact that it did not have the support of the Public Prosecutor's Office, a body that, incidentally, requested the archiving of the records more than once, would no longer be an issue that falls within the so-called "defect of origin" on the part of the Inquiry of Fake News?

Minister Edson Fachin was very careful on the subject when he proposed some restrictions on the inquiry in his vote. According to him, the investigation could only investigate manifestations that, “denoting an effective risk to the independence of the Judiciary, by threatening the members of the Federal Supreme Court and their families, thus attacking the instituted powers, against the rule of law. and against democracy”. In addition, according to Fachin, it is necessary that the investigation “observe the protection of freedom of expression and of the press, under the terms of the Constitution”. In this case, “journalistic articles and posts, shares or other manifestations, including personal ones, on the internet, made anonymously or not, as long as they do not integrate financing schemes and mass dissemination on social networks” should be excluded.

Edson Fachin sought to avoid conflicts that would lead to controversies such as those on Rádio Jovem Pan and on youtuber monarch. Even the famous North American journalist Glenn Greenwald entered the story with a little boy and when defending Monark he stated that “Brazil would be rapidly moving towards authoritarianism”. Glenn Greenwald tries to reproduce in Brazil an American legal logic that is not supported by the tradition that was imposed after the 1988 Charter. In Brazil, the ideas that circulate in society are mediated by values ​​present in that same society. Democracies are also built around civilizing consensus and not just around an imaginary hyper freedom of expression.

We have, in these cited cases, the great paradox to be faced by progressives. In essence, freedom of expression must be one of the basic pillars of any society that proposes to be democratic. But what is the limit of this freedom? Should we be tolerant of speeches that incite violence or jeopardize democracy? For this, the Austrian philosopher Karl Popper presented us with the so-called “paradox of tolerance”. For him, when we accept the intolerant (in the name of a supreme freedom of expression) we run the risk of destroying the tolerant society.

Unlimited tolerance makes societies vulnerable to attacks that can effectively destroy them. When subjects use spaces with a wide public reach to spew a volume of information that is known to be wrong and scientifically ineffective, confusing vulnerable sectors of the population, they must be properly restrained. We cannot, however, confuse some bravado and outrage on social networks, which do not have the potential to endanger the constitutional order, with crimes against the State. The line can even be tenuous between one thing and another, there is a penal code for those who feel offended, but it is not positive to flirt with a society in constant condition of legal uncertainty.

In this case, I do not deny that there have been certain exaggerations on the part of Alexandre de Moraes in conducting the investigation of the Fake News. I understand that coercive measures without listening to the interested party cannot be naturalized as happened in some cases. As an agent of the law, Moraes cannot offend the fundamental rights of full defense and due process of law, provided for in article 5, items LIV and LV of the Constitution. I have no reason to doubt the complaint of some lawyers who claim that they have not seen or had access to the complete files of the cases suffered by their clients for a long time.

Finally, the question arises: Do we really have to be condescending towards individuals who openly preach the coup d'état? What is the civilizing limit that balances the necessary freedom of expression with the dissemination of speeches that incite hatred and violence against institutional powers? At that moment, and rightly so to a certain extent, Alexandre de Moraes has been playing an important role in defending the Democratic State of Law and the fairness of our electoral system. In recent days, the unfolding of facts in real life, such as the attempt to explode bombs, the invasion and destruction of the buildings of the three powers (incidentally, Bolsonarism proving to be barbaric and fascist in its pure state) and the coup draft of the former -Minister Anderson Torres, confirm that the actions of Minister Moraes, despite some legal filigrees (which must be avoided), proved to be essential for the maintenance of our democracy.

If we had an active Public Prosecutor's Office and a Parliament that would leave aside its atavistic corrupt physiology and act incessantly in defense of democracy and the electoral system, we wouldn't need an Alexandre de Moraes exercising so much power in the Republic. If we didn't have a mediocre and pathologically coup-like ex-president, who constantly flirted with institutional rupture and who civilly accepted the election result, we wouldn't need an Alexandre de Moraes exercising so much power in the Republic. What Minister Moraes is doing is just occupying a space left by the incompetence of the other two powers.

As for Bolsonaristas who today rage against their “freedom of expression”, either in front of the barracks calling for the military dictatorship or supporting coup projects behind the scenes, the new Law No. was created precisely to deal with crimes that threaten the democratic rule of law. According to the law, the penalty for anyone who publicly incites a military coup and military intervention is imprisonment from three to six months, or a fine. The same goes for anyone who publicly incites animosity between the Armed Forces, or their animosity against constitutional powers, civil institutions or society.

When Bolsonarist groups took to the streets to protest against the election result, the Federal Public Ministry (MPF) sent the Federal Highway Police (PRF) and the Military Police (PM) letters with guidance on possible crimes committed in cases of interdiction of public spaces .[ii] What we saw were the security forces, including the Armed Forces (they have never been so active since 1964), in collusion with the coup plotters. If we had an active and republican police force, we would certainly not have reached the acts of January 8th, nor would we have been hostage to the decisions of a STF minister. Therefore, the power currently wielded by Alexandre de Moraes is mainly a symptom of the fragility imposed on our democracy by the four years of coup d'état and authoritarian misrule.

For the Brazilian left, the great challenge is not to fall into the trap of occasional opportunism. Let us not forget, Alexandre de Moraes will always be an agent of the bourgeois State acting circumstantially within the interests of this same State. It is not a question, therefore, of turning him into a villain or a hero, but of realizing that there is a paradox behind the minister's actions that must be followed by the left with due distrust of those who traditionally act as a window in the context of relations power of bourgeois and capitalist society.

It is not a question, for the left and progressives in Brazil, of rooting as in a Fla-Flu (or Ba-Vi) for or against a minister of the Supreme Court. He is not necessarily an ally just because he is an adversary of our adversary. The issue is much more complex. It is knowing what we failed to do in recent years that allowed us to reach this situation in which a Supreme Court justice can (or needs to) exercise so much power in the Republic. We have four years ahead of us to reflect on the necessary reforms that effectively consolidate a solid, egalitarian and popular democracy.

*Edward Borges He is a professor of history at the State University of Bahia. Author, among other books, of Coup: the coup as a political method of the Brazilian elite (Cutter).

Notes


[I] https://www1.folha.uol.com.br/poder/2020/06/inquerito-das-fake-news-no-stf-tem-vicio-de-origem-e-provas-contaminadas-diz-representante-de-procuradores.shtml

[ii] https://auniao.pb.gov.br/noticias/caderno_paraiba/mpf-emite-orientacao-para-prf-e-pm-sobre-apuracao#:~:text=Incita%C3%A7%C3%A3o%20ao%20crime&text=A%20incita%C3%A7%C3%A3o%20ao%20golpe%20militar,a%20seis%20meses%2C%20ou%20multa

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