third-generation democratic rule of law

Image: Juan Carlos Garcés Castro
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By VINÍCIO CARRILHO MARTINEZ*

Case study: a constitutional estimate between Brazil and Peru

Explanatory note on the method employed in this conjuncture analysis: Parallelisms are methodological resources; by approximation and distancing, a better understanding of facts, cases is sought, without there being such a clear understanding and explanations. Parallels can reveal nuances, remove the dirt and opacity that the present forcibly imposes on conjuncture analysis. The care here is not to create typical models, especially when there are no ideals – no ideals to share. In any case, it is a useful resource, when we do not become victims of the rush of “first readings”.

Are there possible parallels between Brazil (2016) and Peru, 2022? Yes and no. If we look at it through the historical lens, which goes back to Venezuela, Honduras, Paraguay and others, then, everything follows the flowing and extremely polluted river, with absolutely oppressive banks – as Bertold Brecht would say.

Pragmatically, possibly, the greatest parallel to be verified would be in the present and future effects, from the incidence of the Coup d'Etat that deposed President Dilma Rousseff and the State of Exception filed by Pedro Castillo: disorganization and social misery.

Hopefully not, but the effects can be shared – and that is what political history, in action at this very moment, will tell us. Will Peru be entering some prototype of postmodern fascism, just as we entered 2016 and, from January 2023, XNUMX, we expect to start removing to the rubble of history?

Will Peru see a lunar module of fascism, as we came to verify with leftovers in post-2016 Brazil? Perhaps there are similarities regarding the interposed fascism, in terms of imposition, duration and effects.

Apparently, based on massive popular mobilizations and voluminous protests, it is possible to say no – and in this they would have a different experience from ours, since they do not seem to believe in miraculous guava trees or pray for flat tires – despite the many deaths registered and the imposition of a state of emergency.

On the other hand, the functioning, the rhythm, the generation (a part of the motivation), the rites, the processes, the authorship and their consequences, are absurdly divergent. The background has connections, it can be the same; however, the plot, the core of the story, the acts, the stage (far beyond the actors), are disconnected from each other.

Against both, Dilma Rousseff and Pedro Castillo, the power defenestration mechanism called impeachment (impediment), however, the motivation, the start, for both it is the opposite, precisely the opposite: against Dilma Rousseff it was imposed through a coup and, against Pedro Castillo, the mechanism was triggered by a counter-coup.

 

The democratic rule of law

From Peru, we have a trail that does not benefit any country in Latin America, especially in South America, and serves us (to Brazil) as an example of “what not to do”. With all the problems faced by Pedro Castillo, which were not few, from the left to the right of the political spectrum, until the present moment, there is a path of deconstitution of the institutions that would even guarantee his governability – and that, without this minimally paved path , resulted in his dismissal and imprisonment. As is already known in the news and in general, a State of Emergency is now in force. But how did it come to this?

Briefly, the path is this: self-coup = decree of the State of Exception = curfew = counter-coup = dismissal (prison) = State of Emergency. With the social mobilizations, popular demonstrations, the outcome reached more serious contours, because, if the clashes with the security forces go up a notch, we could see something like the imposition of Martial Law. In this case, Military Law and its encumbrances would be in effect, such as ordinary execution.

Our learning will depend on having accepted the popular theorem that alerts us to the logical obligation of applying a simple rule: for similar situations, the understanding that “for a weight, there can be two measures” is not valid.

And so we ask, preliminarily, what should be regular, safe and legitimate, in Brazil and Peru in the State of Exception (and State of Emergency), of 2022?

Generally speaking, the answer is simple: we should fully respect the Constitutional State, and, in its genre, the 3rd Generation Democratic Rule of Law. It is a constitutional design in which the guidelines of the Rule of Law (1st generation) are ensured, such as the division of powers, the legality and institutionality of the Public Power. In the same way, the Democratic Principle (CANOTILHO, 1990) became the mainspring of the second generation of this Constitutional Order – already with the prediction of crimes against democracy. In the current phase of the Constitutional State, the 3rd generation compels us to international law, environmental rights, the defense of the rights of Humanity, leads us precisely to the thesis of the Right to have rights and, in this regard, conditions us to receive, comply with and defend integral part of human rights. Even more objectively: “for the same weight, one measure”.

But, what would be the summary of everything? It is precisely a matter of granting (Force of Law) the Constitutional Text (HESSE, 1991), that is, what is required, in any case, is compliance with the Constitution, in view of the rigor that was instituted as a Force Rules of the Constitution – and for this purpose, the use of regulatory physical force by the Public Power (“police power”) is also valid. This is the origin, base and beacon of the Constitutional State; without this, there is no Constitution that does not leave the paper (LASSAlle, 1985). This deadweight Constitution only interests one type of ruler: the despot, enlightened or not.

Therefore, before claiming to be a dilettante academic exercise – seeking new concepts –, it is necessary to know that the 3rd Generation Democratic Rule of Law is designed in the 1988 Federal Constitution. sporadically), or not respecting the Constitution, this only informs our understanding and perspective about the country, the very “expectation of law” and also, in some situations, reveals our total lack of commitment to the Law itself, which should be liquid and certain.

It is obvious that all this says a lot about ourselves, as a people and as a nation. We have reached a point where we accuse the concept to camouflage reality. Whether as irony, mockery, or in the form of simple denial and refusal, it seems that we are always apt to attack principles (as an act of complaining about life), instead of acting for a substantial change in reality.

People seem to forget that principles do not walk alone (after all, “the law does not help those who sleep”) and that conceptual configurations reflect a stage of thought (civilizing process) and serve us as a “guide”, specifically, to “measure” reality, assess how much we lack for some objective to be shared collectively, with that famous “southern clarity”.

In the case of law, in particular, we can still think that the principles carry guarantees, that is, rules and effective ways (legally) so that they are respected and fulfilled: from the right to come and go to the habeas corpus, there is the preliminary example, as much as the right of free expression must move towards the classification of crimes committed against the Democratic State of Law. In the first case, the guarantee rests on individual rights, in the second moment the guarantee is directed to the Federal Constitution itself – the configuration of the democratic State of law being inherent to it. It is obvious, therefore, that the problem does not lie in “coming and going”, but in the abuse of this right, especially when it threatens the integrity and rights of the other.

Likewise, it is possible to state that no right will be so fundamental as to threaten the observance of other rights: freedom does not include the preaching of hatred and social chaos, even less is it expected to legitimize the threat to social integrity, coexistence democracy, the rule of law. Also, as an obvious consequence, it is always necessary to understand that the freedom of one will never regularize actions against the moral and social integrity of the people, through threats, attacks and effective actions against the constitutional order. Under this broad criterion, there are certain similarities between Brazil, since 2016, accentuating between 2017-2022, and Peru, with the last decree of the State of Exception.

These are similar situations because criticizing the context or some constitutional contents is something quite different (legally) than denying the constitutional order or simply trampling negatively on its devices. This denial action can be individual, as an imminent despotic action, by groups armed with hatred or lethal ammunition (there is a crime provided for in the Federal Constitution of 1988), or even by misinterpretation, coup plotter or opportunism by judges or courts: Lava Jato extended records of disturbing examples to Brazil.

 

The cost of blows to the Constitution

Striking the Democratic Constitution (legitimate, by preambular definition) brings countless consequences, whether moral, social, political, economic, or institutional. The societal consequences of the various coups against the Federal Constitution of 1988 are seen in unemployment, hunger, and the assumption of Fascism to power. Likewise, institutional consequences are present in the denial of democracy, within the State, in the rigging of institutions that should serve the Republic, but that act in accordance with the project of scorched earth, with a clear interest in the dismantling of the social State and in the bankruptcy total of the main public policies – of a relevant social nature.

In Peru, the constitutional clause (badly worded, by the way) was simply not observed, which describes the “only” plausible situation for congressional dissolution and the “willingness to interpose a transitional and exceptional government”. Without the opposition having formally filed the two requests for a “no confidence vote” – and having been defeated, in turn, by the situation –, there would not have been the legal fact that would authorize the dissolution of the legislature.

In practice, the Constitution was violated to impose the state of exception. If we do not understand that the regularities and institutionalities must be followed, as a security reserve of the constitutional order itself, in a direct way, we will be authorizing the same commission of criminal action against the democratic State of law – here or in Peru. In Brazil, comparatively, the attempt to implement a type of State of exception, for some time, was more subtle: article 142 of the Federal Constitution of 1988 was read very badly, with the aim of distorting the constitutional meaning deposited there in order to create the “narrative” that there would be an intention to authorize a “moderating military power”; in practice, intervenor.

In itself, without major considerations about the absurdity, it is absurd (aberration in legis), as it is enough for us to recover the broad sense that unfolds under the democratic rule of law: principle of constitutionality (constitutional uniqueness); democratic principle; principle of legality and legal certainty; division of powers; republican system of checks and balances; system of fundamental rights (individual, collective, diffuse, social), principle of social justice. In short – after the impeachment, in which ex-president Pedro Castillo did not even receive a vote of confidence from his party (Peru Livre is a Marxist-Leninist) – any permissiveness aimed at the constitutional wrongdoing practiced in Peru, on our part, would be equivalent to authorization, voluntary or involuntary (conscious or alienated), for art. 142 would have the same coup effect, imposing a real “moderating State of Exception”.

For those who have always fought for the purposeful broadening of constitutional margins, for the deepening of fundamental rights – notably social rights –, it is extremely perplexing to have to defend theses and guidelines of constitutional positivism. However, given the level of lack of knowledge and moral, social, cognitive setback that we have reached today, today, again, we defend truisms. More precisely, we defend constitutional positivism, in the strict sense that one must obey the constitutional order – even more so against yesterday's positivists who today have become denialists or opportunists.

With this experience in Peru, and let it serve as a lesson, we must learn, internalize, actions and motions in defense of the Federal Constitution of 1988, especially, on the eve of inauguration on January 1, 2023. May we be able to reject any coup action , that we have the lucidity and strength to face (and profoundly change) the missteps the country has taken in the post-2016 period.

In the process of impeachment 2016, contrary to what many think, we did not follow all the so-called institutionalities. What we saw in progress was the rite being observed, however, it is disregarded (many still) that the procedural premise is false – and for two reasons that are directly communicated:

The impeachment process is an unusual process, as it follows a legal and political guideline (the judges are parliamentarians and not judges). In 2016, unlike Collor's impeachment, the initiative was political and not legal. The impediment does not begin without the triggering event consummated in evidence, as a legal act (in Peru, the legal act is the Decree of the State of Exception itself). Impeachment, in short, as a procedural act, must be strictly followed in this sense: from the legal to the political. Otherwise, it becomes a coup.

Immediately linked to the false rite is the fact that there was no crime of responsibility committed – the TCU itself at the time had ex-president Dilma Rousseff acquitted. Without the crime, that is, without the criminal materiality, there is no authorship, and that means that former president Dilma Rousseff was not the author of any crime of responsibility. Therefore, with non-existent authorship and materiality, the process did not follow the minimally required procedural rites. Hence the second reason for setting it up as a Coup d'Etat (MARTINEZ, 2019).

Unlike Peru, where the Presidential Decree acts as the legal act itself, contrary to the Constitution, the 2016 coup is absolutely unconstitutional and without any support in the minimally expected procedural rite. In this way, we see that it is not just subtle differences that separate the two moments of political history that we do not want to repeat. However, it is important to repeat: at no time did Dilma Rousseff attempt a self-coup or commit any offense that could fuel crimes of responsibility (see TCU) – and here there is no parallel with Peru.

The 2016 Coup d'Etat destroyed the human dignity of the people, the republican institutions and the slightest possibility of democratic coexistence, since we started to “do politics” between enemies – and no longer opponents. Probably, the result of everything that has been happening in Peru will bring similar or worse effects than those we have seen in Brazil: the loss of institutionalities functioning as a trigger and force for the aggravation of social misery, popular disillusionment, and the chaos that sponsored Fascism. The containment of all this will depend, as always, on popular resistance and the strength of institutions.

*Vinicio Carrilho Martinez He is a professor at the Department of Education at UFSCar.

References


CANOTILHO, José Joaquim Gomes. Constitutional Law and Theory of the Constitution. Lisbon, Almedina, 1990.

HESS, Konrad. The Normative Force of the Constitution. Porto Alegre, Sergio Antonio Fabris Editor, 1991.

LASSALLE, Ferdinand. What is a Constitution. São Paulo: Kairós, 1985.

MARTINEZ, Vinicius Carrilho. Theories of the State - Unconstitutional Dictatorship: 2016 coup d'état, State-form, Typologies of the State of Exception, nomology of the unconstitutional dictatorship. Curitiba, Editora CRV, 2019.

 

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