By EDUARDO BORGES*

The dilemmas of the bourgeois state and liberal democracy

In the contemporary world, which as some unwary people want is not postmodern to the point of giving us the unsettling feeling of “stopping being contemporary with ourselves” ^[I] as Sergio Paulo Rouanet taught us, at most it can be neomodern, since the past has not been transformed, but adapted to the new times. It is precisely in this neomodern world that the left in Brazil has experienced the profound dilemma of how to deal with the defense of liberal democracy using the instruments made available by liberal democracy itself.

In recent years, perhaps since the time of Ação Penal 470 known as “Mensalão” (I am always very squeamish about using a term coined by an individual with Roberto Jeferson’s running record), Brazilians have come to deal with new lexicons linked to the so-called Democratic state. Prior to this Criminal Action that led to the trial of members of various parties, mainly the Workers' Party (PT), for issues related to the use of slush funds in electoral campaigns, very little was debated in our daily lives on issues related to the judiciary. In general, no one knew even a single name of a Minister of the Federal Supreme Court. From 2 onwards, Minister Joaquim Barbosa shared with Pelé and Roberto Carlos the status of the best known Brazilian. Besides him, others gained fame and became national idols. We now have our pet minister, typical of organized supporters. Supporters of Minister X were publicly opposed to admirers of Minister Y.

Excited about the visibility, the STF, with the approval of the Legislative power and of society itself, started to bring to itself some of the great national themes neglected by the inertia and opportunistic cowardice of the National Congress. One of them was the release of scientific research with embryonic stem cells, a theme that directly dialogued with questions of a religious nature, slipping into fundamentalism. The Chamber of Deputies, always hostage to the evangelical bench, hid and left the “cucumber” with the Supreme Court. The Court was also asked to rule on the extradition case of the Italian Cesare Battisti, convicted in his country of murdering four people, alleging a political crime. The case involved a strong ideological appeal between left and right, but it was the STF, with its “blindfolded eyes” to opine on the issue. A theme dear to identity groups also reached the lap of ministers who decided to recognize stable unions between people of the same sex. This issue was yet another one that our Lower House cowardly outsourced to the judiciary, giving up its legal status as representative of the power entrusted to it by popular vote.

In 2010, the Supreme Court was asked by the Brazilian Bar Association (OAB) to position itself on a possible change in the interpretation of the Amnesty Law created to grant pardon for crimes related to the military dictatorship (1964 – 1985). The purpose of the lawyers' representative body was to seek the possibility of punishing some state agents who were involved in torture crimes during the dictatorship. The STF refused to open this “wound” of our authoritarian past and continued to legitimize itself as the institution responsible for managing the dynamics of Brazilian democracy. In 2007, the STF decided to organize the political system and decided that the mandate of a parliamentarian belongs to the party and not to the individual. It directly affected the opportunistic physiologism of party infidelity and exposed the inability of the Legislative power to internally resolve its own idiosyncrasies. In another moment of chronic ineffectiveness of the political field in debating issues sensitive to the functioning of society itself, the Democrats party filed a lawsuit in the STF against the reservation of 20% of vacancies for black candidates at the University of Brasília. It was yet another example of the incompetence of our political elite in autonomously managing its own causes. In short, in the last twenty years the Judiciary, due to the ineffectiveness of the Legislative and Executive powers, has become the main guarantor of our liberal democracy. But what is the real issue that is found today as a result of this reality and that directly impacts the political work of the Brazilian left? Let's see next.

The central point to be reflected on today is how Brazilian democracy has resisted this possible power imbalance. Immediately, we can anticipate that the balance for the political field was disastrous. But it wasn't better for society as a whole. The imbalance of power as a result of the strengthening of the STF in national life has generated, mainly, a change in society's perspective on the role of the three powers in the context of the Democratic State of Law. As a direct consequence, it made room for adventurers who were not used to the system of checks and balances that sustain democracy to feel empowered enough to publicly demean it with the support of a herd of followers as inconsequential as their leaders. A deep fissure opened in politics with a capital P and made possible the electoral viability of individuals as unthinkable as Captain Jair Bolsonaro. More than that, and amplified by the advent of social networks, Boeotian subjects achieved instant visibility and managed to reach the National Congress by spewing rules of reactionary conduct into the blogosphere, removing from the shadows a bunch of caricatured figures such as Hasselmanns, Kicis, Jordys and Kataguiris making There is the prophecy of the brilliant Nelson Rodrigues that “idiots will take over the world; not by capacity, but by quantity.”

However, what we are experiencing today is the feeling that liberal democracy, the Democratic State of Law and the balance between the three powers are not knowing how to deal with the spoils generated by this mediocre situation governed by historical denialism and anti-science. Is our democracy entering a state of lethargy and preparing its death? Unlike the seventies and eighties of the twentieth century, current democracy does not die as a result of the classic coup d'état with tanks in the streets and the radical change of regime in an authoritarian way. This type of death is immediately perceived by the population and a portion of it feels motivated to build resistance mechanisms, today, this is not the case. As Steven Levitsky and Daniel Ziblatt wrote “democracies still die, but by different means”.^[ii]However – and this is the real danger that must be perceived by the left when it moves in the middle of the bourgeois legal order – say Levitsky and Ziblatt: “Since there is no single moment – ​​no coup, declaration of martial law or suspension of the Constitution – in that the regime obviously “crosses the line” for dictatorship, nothing is capable of triggering society's alarm devices”.^[iii] The emphasis is ours, and aims to mitigate the risk that we are helping to kill our democracy when we naively fall into traps created by the opportunistic interpretation of important clauses of the Federal Constitution. This may not be the Constitution of our dreams, but it is the one that in 1988, with reasonable popular participation, we were able to build.

The new bourgeois way of achieving death democracy makes use of the Machiavellian and alienating sensation that we are defending it. The left-wing intellectuals have the important attribution of behaving as a kind of ombudsman for society in order to prevent us from falling into the naive campaigns of “we are all 70%” or proposals for united fronts against fascism. This type of movement is immediately contradicted by the reality of the facts when research institutes place Jair Bolsonaro as victorious in any simulation of the second round. If we are 70% Democrats, why isn't the captain thrashed in the second round? Does this 70% include Huck, Dória, Moro, ACM Neto and the like? If so, I'm out. This type of campaign only distorts an effectively programmatic and left-wing unit that proposed structural changes in deep Brazil.

The recent episode involving one of those unthinkable individuals generated by the anti-politics discourse, the “pumped” deputy Daniel Silveira, has strongly revived this debate about the present and future of Brazilian democracy. In the wake of the scorched earth scenario that emerged after the coup against President Dilma Rousseff, the debate on the politicization of the judiciary was also imposed, which for the left would unfold in the historic dilemma of dealing with the legitimacy of judicial intervention by the bourgeois State. For those who don't know, Minister Alexandre de Morais used the National Security Law (LSN) to support the arrest warrant for the bombed deputy, what's ironic about that? The fact that this law was created in the context of the military dictatorship and signed by former dictator João Batista Figueiredo. We arrived at the dilemma of using, today, as a salvation for democracy, a Law forged to sustain an exceptional regime.

I understand that the pragmatism of left-wing politicians when dealing with the arrest of Daniel Silveira is natural, but I do not believe that this is the best path for left-wing intellectuals. When we delve into merely punitive rage, we lose a good opportunity to reflect on something much bigger than the very functioning of the political and legal order of our democracy.

When rescuing the National Security Law (which can be read as debris from the authoritarian era), Minister Alexandre de Morais, of the STF, recalled the “spirit” that underpinned its creation, that is, an instrument of the authoritarian State to protect its power in the face of groups opposing the regime. How many left-wing comrades fell because of the accurate but always suspicious shot of the LSN? Here is a series of challenges for the Brazilian left: What was understood in the XNUMXs as “national security” and what is it understood today? The logic of the Law is the same, even though the regime has changed. How should the left deal with a law that is characterized as a legal device that establishes crimes against national security and against the political and social order? How can this Law fit in a context of balance of powers present within the dynamics of the Democratic State of Law? What does the left truly understand as autonomy between powers?

The bourgeois State itself sought to resolve this dilemma when, in 2002, President FHC attempted to create a commission of jurists to think about adapting the LSN (including its repeal) to democratic times. It didn't win. The STF took on this task when it decided to make it mandatory that the prosecution of crimes that fall under the LSN should be accompanied by full and objective evidence that its consequences would actually incur real damage not only to national security but also to the political and social order. A Law with this dimension cannot be based on subjectivities.

In the case of deputy Daniel Silveira, as he is a parliamentarian, it creates the potential conflict between the LSN and Art. 53 of the Constitution, whose text states that “Deputies and Senators are inviolable, civilly and criminally, for any of their opinions, words and votes”. If we come to the conclusion that the abject words uttered by Daniel Silveira constitute crimes to be included in the LSN, what are the real criteria for exempting him from the support of Article 53? Another dilemma stems from this in the second item of article 53, namely: “Since the issuance of the diploma, members of the National Congress cannot be arrested, except in flagrante delicto of a non-bailable crime”. Those who question the following text by Alexandre de Morais are right (the law is the great arena for the struggle between reasons): “an arrest warrant should be issued for the crime committed in flagrante delicto.” The question is legal, but it is also semantic, how to reconcile in time the a posteriori mandate with the a priori flagrant? At the very least, the text that presents an “arrest order for flagrante delicto” is truncated. It took a herculean legal exercise to typify a video posted on a social network as an example of flagrante delicto. The posting of videos on social networks is giving rise to the legal concept of “crime continued in time”. It is not by minimizing this type of thing that we are going to build a solid democracy.

The Lava Jato operation and its vulgar development popularly known as Vaza Jato gave rise to the debate about the absence of the guarantee judge and the investigating judge in the Brazilian legal system. Dr. Moro's adventures and his obsessive and selective persecution of former President Lula exposed the profound problems caused by the concentration, in a single person, of the power to investigate and judge. The STF and its autocratic decisions have become something similar, especially when he is a “victim” in the process and is given the power to investigate, accuse, judge and condemn. Is it really healthy for democracy and the balance of powers for a member of the legislature to clash with a member of the judiciary to be unilaterally tried and condemned by the judiciary? Is this the best way to organize our legal and political system? We treat the Legislative House as if it were an orphanage for rebellious and ill-mannered children who are not mature enough to resolve their own internal issues. The STF, on the other hand, is the disciplining beadle publicly pulling the ears of the immature youngsters that make up our Lower Chamber. The Chamber of Deputies has an Ethics Council precisely to investigate, judge and punish its members who break parliamentary decorum, including the ill-fated “parliamentary immunity”. When we applaud, as a left, such an open intervention by the judiciary over the legislative power (I am referring, yes, to the Daniel Silveira case), it is up to us to reflect that if we start from the premise that the State will always be the expression of the will and the interests of the dominant class, the legislative power is one of the few spaces left for the dominated class to interfere in the dynamics of state power. When I see deputies from the left defending in such an ingrained and uncritical way a STF “portfolio” in the face of one of their peers, no matter how cretinous he may be, it makes me afraid of how much they are prepared to debate the politicization of justice that so much has victimized the left in recent years.

If today bourgeois justice manages to be so autonomous and implacable with a right-wing parliamentarian, imagine what it cannot do when it comes to a leftist. Do we really not have to worry about the opening of a dangerous legal precedent (mainly for the left) when a member of the Supreme Court decides unilaterally (I don't even see the absurdity of calling it arbitrary) about the behavior of a member of another power that has its own mechanisms of punishment? Wouldn't it be the role of the left, instead of easily legitimizing a deliberate action by the judiciary of the bourgeois state, to have already started a struggle for the reorganization of that same state in a more democratic and popular perspective?

What is the role, in the liberal bourgeois order, of the Attorney General's Office (PGR)? If we had, in recent years, this institution functioning assertively in defense of the Democratic State of Law and the “bombed” deputy could have been stopped much earlier, as it is not the first time that he has vomited his boçalities in public. But where was the PGR that did not open inquiries against him? Not only him, but all those who before him degraded the Constitution and democracy itself. Article 7 of the Decree-Law that provides for the organization of the Federal Public Prosecutor's Office, which is the function of the PGR, states: “to ensure, insofar as it may be necessary, the execution of the Constitution, laws, regulations and federal treaties”. Had it done more accurately, perhaps we would not have reached this scenario of scorched earth that not only removed a strong candidate from the electoral campaign, but also handed over the future of a nation of 220 million inhabitants to a “buffoon” like Jair Bolsonaro and, at the same time, at the same time, made possible the election of an individual no sense as Daniel Silveira.

The Daniel Silveira case is a source of embarrassing facts for the tradition of left-wing thought in Brazil. In the nineties of the twentieth century, as a union leader, I heard from countless colleagues passionate speeches of reservations to the bourgeois State when we needed to appeal to the Judicial Courts in cases of Collective Bargaining. Freedom of expression has always been the Achilles' heel of the left and even though I agree that it should not be seen as absolute, the question remains: Who, in the bourgeois State, has the power to establish its limits? Can't the power to set the limits of freedom of expression potentially become a weapon against representatives of the dominated class?

Since the time of the so-called “Mensalão” judgment, the left has been permanently asked to reflect on basic questions of the legal system in democratic times, such as: presumption of innocence, defense of due legal process, unrestricted right to full defense, guaranteeing respect of the constitutional text, respect for the contradictory, the need for broad and thorough evidence (conviction is not enough to convict someone) for convictions, criticism of judicial punitivism, among others. The case of Deputy Daniel Silveira (however abject his behavior may be) cannot contribute to relativizing these issues. Just as the left (mainly the PT) usually argues that defending Lula is defending democracy, selectively relativizing certain legal guarantees ensured to all citizens only to “detonate” the “pumped” deputy is to run the risk of relativizing democracy itself that we defend so much.

The jurist Lenio Streck, always very perceptive in his analyses, criticizes deputy Daniel Silveira for having claimed parliamentary immunity in his defense. Says Streck: “the purpose of immunity is to protect democracy and not to serve as a shield to destroy it”.^[iv] Undoubtedly, the deputy's speech in his defense is shallow, crude and contradictory, as he uses "freedom of expression" to have the right to defend a regime that killed "freedom of expression". Daniel Silveira did not even need to openly defend Institutional Act number 5 (AI-5) in his video, it was enough to have aired a draft of agreement with this authoritarian rubbish that would already be enough to build evidence against himself. When created, AI - 5 gave the dictator/president of the Republic the power to consider any citizen as a subversive and impose all possible punishments on him without respecting any of the powers that made up the Brazilian State. Today, when we complacently watch a custody hearing against a member of an autonomous power of the republic being carried out at the behest of a member of the STF (also one of those autonomous powers of the Republic) I think it is enough to turn on the yellow light of democracy Brazilian. It is not, therefore, a question of defending the non-punishment of Daniel Silveira or, as the younger ones say, “passing cloth” to the “pumped”, but asking whether it would not be more democratic for this function to be given within the scope of the institution to which it belongs. the deputy belongs. After all, by being elected by universal suffrage, it is on the members of Congress that society has the greatest power to exert its popular pressure and not on the STF and its appointed and “lifetime” members.

For the past fifteen years the left has been through a long, dark winter. Upon coming to power, with the PT, it was exposed to the particularities and nature of public management. She had to deal practically with what she only knew in theory. As the old saying goes: in practice, theory is different. The left-wing intelligentsia, whether PT or not, was challenged to answer questions demanded daily by this new experience of dealing with the dynamics of the liberal order and having to conform to the guidelines “determined” by the structures of the bourgeois State. The Daniel Silveira case is just an oversized metaphor (in the form of tragedy and farce) of this historic dilemma experienced by the Brazilian left.

In short, let's forget the retail dispute of politics, because to concentrate all our energies on a despicable figure like Daniel Silveira is to quibble about what really matters, that is, the wholesale of politics that, in the face of an impoverished and less democratic country, materializes in the challenge of rebuilding it on other bases as of 2023. Until then, there is little care as we walk the fine line that separates survival within liberal democracy and the risk of serving its destruction as useful innocents.

*Eduardo Borges is professor of history at the State University of Bahia (UNEB).

Notes

[I] Rouanet, Sergio Paulo. Reasons for the Enlightenment. São Paulo: Companhia das Letras, 1987.

[ii] LEVITSKY, Steven; ZIBLATT, Daniel. How democracies die. Rio de Janeiro: Zahar, 2018.

[iii] Idem.

[iv] https://www.conjur.com.br/2021-fev-17/streck-deus-morreu-agora-tudo-prisao-deputado.