CommentaryIn almost the whole world, distrust of political institutions delegitimizes their representation, leaving us without a shelter that protects us in the name of common interest. The rupture in the relationship between the rulers and the ruled makes this conflict even more profound, with devastating consequences that arise from the inability to deal with the multiple crises that are being decanted and mapped in the internal political system. Democratic recession contributes to the boiling of politicians who do not take constitutional ideals seriously, who do not see constitutions as a source of constraints to their powers and instead use the constitution and legal rules to self-perpetuate, to legitimize arbitrary government and to ensure who will be re-elected as many times as possible. Populisms and populist movements represent the instrumental degradation of the power structures of democratic systems. In a recently published survey, we found that populisms have a conceptual-instrumental nature and can be defined as democratic illiberalism with variable properties. They represent a certain type of ideology, discourse, strategy, mobilization and political action in the specific cultural and political context. They decant themselves through formal and/or informal movements directly or indirectly in the democratic system by a charismatic leader who represents and leads an anti-establishment force resting their beliefs in moral and ethical institutions in order to consolidate and legitimize a populist political regime under the mantle of popular sovereignty and democracy. To subvert democracy, you have to become democratic.
The populist Bolsonarist movement in Brazil represents an affront to democratic values and principles and, consequently, to the democratic rule of law. According to Daly and Jones, these concerns end up highlighting the problem of how to identify and punish the political power that resides outside formal institutions, as in the case of the “almost political parties”. These organizations are not presented as parties to the electorate and, crucially, they avoid the formal channels of power dodging accountability and corrective measures specific to political parties. The movement, far from being representative, becomes a faction representing a certain extremist ideology, effectively a “shadow party”.
The populist movement has formal, informal, direct and indirect aspects that constitute variable properties of populisms. These are strategies commonly used in different specific contexts and are intended to expand their political strength. In Bolsonaro’s populist movement, the use of political and religious moralism, the unrestrained impetus for misinformation and fake news and the polarization and militarization of politics stand out.
Inquiry 4,781 pending confidentiality at the Supreme Federal Court, established by Ordinance No. 69, of March 14th, 2019, is intended to investigate, considering the existence of fraudulent news, slanderous denunciations, threats and infractions covered by animus caluniandi, diffamandi or injuriandi, which attack the honorability and security of the Supreme Federal Court, which are the results of these movements. On February 16th, 2021, a Youtube video came to the attention of the court, published by federal congressman Daniel Siveira on the Youtube channel called “Política Play”, where the said deputy attacks head-on the Ministers of the Supreme Federal Court, through various threats and offenses to honor, expressly propagates the adoption of anti-democratic measures against the Supreme Federal Court, defends the AI-5; also incites the immediate replacement of all Ministers as well as instigates the adoption of violent measures against their security, in a clear affront to democratic, republican principles and the separation of powers.
The arrest of the congressman was decreed by the Federal Supreme Court, which unanimously understood that there was a need to adopt vigorous measures to prevent the perpetuation of criminal activity. The Federal Supreme Court considered it imperative to prevent the perpetuation of criminal activity with the intention of harming or exposing the independence of the instituted powers and the Democratic Rule of Law to harm. The Court interpreted the crimes contained in the video as blatant because of their availability and accessibility to users connected to the world wide web. The crimes against the democratic constitutional order contained in the video inserted in a global system of interconnected computer networks and accessible at any time were understood as crimes of prolonged consummation, which would constitute permanent criminal conduct.
In the decision, some signs that represent the legitimacy of the arrest are evidenced: (i) the author of the conducts repeatedly attacks institutional safeguards in order to modify the current regime and the rule of law, through structures and financing aimed at mobilizing and inciting the population to subvert the political and social order; (ii) created animosities between the Armed Forces and the institutions; (iii) there is no possibility of spreading ideas contrary to the constitutional order and to the Democratic State (CF, articles 5, XLIV; 34, III and IV) nor the demonstration on social networks aimed at breaking the rule of law, with the extinction of the constitutional fixed clauses – Separation of Powers (CF, article 60, paragraph 4), with the consequent installation of arbitration; (iv) freedom of speech and pluralism of ideas are structural values of the democratic system, however, conduct and manifestations that have the clear purpose of controlling or even annihilating the power of critical thinking, indispensable to the democratic regime, are unconstitutional; (v) he preached violence, arbitrariness, disrespect for the Separation of Powers and fundamental rights, in short, pleading for tyranny, arbitrariness, violence and the breach of republican principles, as evidenced by the criminal and inconsequential manifestations of the aforementioned parliamentarian. In these unprecedented circumstances, the National Congress, in a historical decision, maintained the arrest of the congressman by 364 votes.
Brazilian democracy has been showing resistance when trying to prevent the legitimation of Bolsonaro’s populist movement through the backlashing effects of democratic institutions, civil society and non-governmental organizations.
Two hypotheses represent the key points of this discussion: parliamentary immunity whose foundation is the defense of democracy and not the other way around; and the concept of in the act, which can no longer be thought of outside the digital revolution that expands its semantic extension.
The congressman’s repeated criminal conduct constitutes an imminent threat to Brazilian democratic stability and to the constitutional order foundations. Its practices typify a pattern of anti-democratic insurrectionary behavior, incompatible with the mandate given to him by the popular vote. His conduct demonstrates and warns if he remains in the position, that he will be a clear and present danger to the foundations of our constitutional order itself and the security and protection of our nation. If the parliamentarian remains in the position, he and his followers will feel empowered and allowed to continue to attack democratic institutions. Material parliamentary immunity cannot be used to shield the practice of crimes, especially against democracy, which is the condition for the possibility of the constitutional prerogative of inviolability.
The judicial review at this point remains an intractable tension. What are the criteria used to decree the arrest of a parliamentarian, as in the case of Brazil, which has double protection of freedom of expression? It is not enough to affirm that there was an incitement or crime against the democratic order but to justify why it is not affected by material parliamentary immunity. The need for fundamentality is justified as populist forces of authoritarian inclination can be strengthened by granting the status of victims of “entrenched elites” like the Ministers of the Brazilian Supreme Court.
Brazil has an authoritarian populist president, and, at this moment, the formal and informal democratic institutions must take the stage. The systems of checks and balances are capable of restricting and constraining the populist movement. The backlash effect, arising from both formal and informal institutions, represents the active and boiling exercise of Brazilian democracy, which has acted in a way to prevent the legitimation of the populist Bolsonarist movement. In this sense, the movement’s strength has brought together institutions, civil society, non-governmental organizations, political parties to incorporate diffuse manifestations of popular power in the name of democratic and constitutional values. When the parliamentarian concludes by threatening democratic institutions, corrupting or interfering in the pillars that support their values, he denies the very premise of the constitutional system.
Pedro H. Villas Bôas Castelo Branco is a Professor at the Institute of Social and Political Studies (IESP) at the State University of Rio de Janeiro (UERJ) and a Professor of the Law Graduate Program at the Veiga de Almeida University (PPGD/UVA).
Carina Barbosa Gouvêa is a Professor of the Postgraduate Program in Law at the Federal University of Pernambuco (PPGD/UFPE).
Suggested citation: Pedro H. Villas Bôas Castelo Branco and Carina Barbosa Gouvêa, Encouraging Insurrection, Parliamentary Immunity and the Defense of Institutional Safeguards in Brazil, JURIST – Academic Commentary, May 14, 2021, https://www.jurist.org/commentary/2021/05/pedro-castelo-carina-gouvea-brazil-insurrection/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
