Fernando Fagundes Ferreira

---

THE LAWFARE DEMOCRATIZATION

There has been an increasing expansion of the lawfare by which any citizen can be denounced or identified as a supposed enemy of the political regime.

FERNANDO FAGUNDES FERREIRA

Corruption is based on the offensive on democracy and the structure of the constitutional powers. Occasionally, it is chronic and other an acute disease, which concerns all political regimes to a minor or more comprehensive degree, causing affliction within the society. In a democracy, if it is not addressed, corruption will exterminate it little by little, starting by tearing constitutional principles and then asphyxiating it, at once, making autocratic the government regime. It’s historic.

The field of opposing corruption must be the improvement of the principle of the dignity of the human person and primary rights. However, fundamental rights are no longer absolute. In 2017, the Brazilian Supreme Court ruled that the right to privacy should “give way to the public interest, the social interest and the interest of justice.” Data venia, the stone clause of freedom was tainted in the interest of justice, which would be, at that time, allegedly similar to public and social interests.  

Supreme Court Minister Edson Fachin’s recent decision (June, 10), in which he was rapporteur against the action filed by the Rede Sustentabilidade party, highlights, in practice, how freedom expression is being extinguished as a fundamental right. This time, the questioning addressed to the Supreme Court was about the legality and constitutionality of the Ordinance GP 69/2019, from the Presidency of the Supreme Court, which determined the establishment of an investigation on fake news and alleged crimes of opinion against members and family members of the Supreme Court.  

By the allegations of the Rede Party, the Ordinance did not indicate an act that has been practiced at the headquarters or on the premises of the Supreme Court, nor who will be investigated and whether they are subject to the jurisdiction of the Court. Furthermore, it notes that there is a need to represent the alleged offenders in the investigation of opinion crimes and that investigation for undefined facts is not justified. The lawsuit also points to the fact that it is not up to the judiciary to conduct criminal investigations, except for rare exceptions.  

Some hermeneutics and jurists have analyzed this “legislative behavior” of the Supreme Court as motivated by the required “harmonization” of constitutional laws, according to the jurisprudence of the “principle of practical agreement”. However, the moral legitimacy of representing public and social interests is not proper to the operators of law. In the Federative Republic of Brazil, as seen in CF/1988, this is the role of the Democratic State of Law, ad up to the fundamental principles (Article 1) and its fundamental objectives (Article 3), the first of which is “to build a society, free, just and solidary”.  

It is in these circumstances of the attack on constitutional grounds that “lawfare” (law + warfare) flourishes. According to Osmar Pires Martins Junior, professor and co-author of the book “Lawfare under debate” (Editora Kelps, 2020), in this unjust war, enemies are selectively chosen and the operators of the law arm themselves with machine guns in defense of private interests. “To the detriment of the true interest of the Brazilian people, an ostensible political conjuncture is generated, which prevents or reduces the chances that all people are equal before the law. This is a serious problem related to the consolidation of a more participatory, inclusive, transparent, and effective society in reducing impunity and socioeconomic inequality,” he continues. 

For Cristiano Zanin Martins, Valeska Teixeira Zanin Martins and Rafael Valim, lawyers and jurists who are supporters of former President Luís Inácio Lula da Silva, lawfare have in the electoral system its most perverse characteristic component to democracy. “It is the use of the inherent power of the law to achieve political and electoral objectives, through legal maneuvers, under the guise of legality, to persecute and eliminate the opponent of the electoral race, replacing the sovereign will of the people, which must be legitimately manifested only by the ballot box,” they said. As we know, under Operation Lava Jato, Lula was prosecuted on corruption charges and, despite the lack of evidence, was exposed massively by the mainstream media as a leader of a criminal organization, arrested and sentenced to touch box.  

The Supreme Federal Court Minister, Gilmar Mendes, signs the ear of the book “Lawfare under debate” with a precise text in which he qualifies Lava Jato as a reliable “expression of lawfare in Brazil”. What happened to Lula also happened with other elected Latin American progressive leaders, who became favorite targets of the intrigues inherent in the lawfare: Pedro Lugo, Rafael Correa, Evo Morales, Hugo Chavez, Nicolas Maduro, Cristina Kirchner, and others.  

For Professor John Comaroff of Harvard University, in short, lawfare means the use of law violence against political enemies. Thus, justice is responsible for an action that can be compared to the characteristic dimensions of armed conflicts: geographical (the choice of jurisdiction), weaponry (jurisprudence), and environment (pre-trial and conviction by disinformation). “The law tends to be applied in its gaps, which relies on the influence of political technology and other ways of controlling the spaces where people are judged. This is a critical distinction between democracies and autocracies, the Democratic State of Law and the State by law, respectively,” Comaroff describes. 

The lawfare can also be understood from six strategic categories of evaluation: persecution (e.g. psychological torture), disinformation (e.g. defamation), game theory (e.g. hybrid warfare), neoliberalism (e.g. mammonism), ideology (e.g. radicalism) and sabotage (e.g. spying). There are numerous cases in which the lawfare spreads and produces side effects around the world, from the most emblematic, such as Julian Assange, to personal tragedies such as the case of the suicide of the principal of the Federal University of Santa Catarina, Professor Luiz Carlos Cancellier, and many others that do not make the headlines of the media.  

The ability to justify acts that disobey legality, in the name of the public interest, has infected not only justice. With the support of private groups that command communications and seek to maximize profitability, the “republican” and “anti-corruption discourse” has become rhetoric repeated by the press and politicians as a “defense of democracy”. A confused and schizophrenic environment was created permeated by pre(concepts) of “left” and “right”, “progressives” and “conservatives”, “scammers” and “loyalists”, “communists” and “democrats”, “globalists” and “nationalists” and other heterodox denominations that challenge even science and scientific knowledge.  

Although not an exclusively national problem, Brazilians need to unravel and know a narrative that effectively explains the current reality of Brazil for themselves and the world. There has been an increasing expansion of the lawfare by which any citizen can be denounced or identified as a supposed enemy of the political regime. This “democratization of the lawfare” comes against the democratization of Brazil, opening the way to conservatism and undermining rights and the hope of a better future for all.  

Since power emanates from the people, but it is not the people who exercise power, popular sovereignty will depend on the advancement of representative and participatory democracy. The powers of the Union need to be independent and harmonious with each other for the Federative Republic of Brazil to meet the interests of all Brazilians, and not only to the private interests of organized groups, with orchestrated performance, as is taking place from “lawfare for all” and has been recorded by our history countless times, ironically, since the political-military coup of the Proclamation of the Republic.  

Fernando Ferreira is the compiler of the website lawfare4all.wordpress.com that brings together the organized civil society in the END #LAWFARE4ALL Campaign