The Brazilian government has taken another step in its process towards autocracy. On 17 June, 2021, through a manifestation presented in a lawsuit before the Brazilian Federal Supreme Court (hereinafter, STF – Supremo Tribunal Federal) questioning the investigations by authorities against journalists who criticised the Armed Forces (Army, Navy and Air Force), the Attorney-General of the Union (hereinafter, AGU – Advocacia-Geral da União) affirmed that, in the government’s view, the Military Justice has competence to try civilians accused of criminal offences against the honor of the military institutions. In short, the AGU proposed that crimes regarding the freedom of speech should not have to be assigned to the ordinary justice system, composed of civilian judges, but to a specialized branch of the judiciary formed mainly by members of the Armed Forces itself.
The Military Justice is a legal heritage which has remained untouched even after the 1985-1988 redemocratization. It is compounded by collegiate bodies with more military members – who do not necessarily have juridical training – than civilians. The trial courts, called „Special Audit“ (Auditoria Especial), have two chambers named Special Council of Justice (Conselho Especial de Justiça) and the Permanent Council of Justice (Conselho Permanente de Justiça). Both have one civilian and four military judges, as determined by article 16 of the Law no. 8.457/1992. By the same token, the Superior Military Tribunal (hereinafter, STM – Superior Tribunal Militar), the appellate court of Military Justice, has 15 Justices. Five members of this bench are civilians and the other ten are military, according to article 123 of the 1988 Brazilian Constitution. The Military Justice only tries criminal matters.
This post will show how the strategy of the AGU aligns with the military autocratization agenda of Bolsonaro’s government instead of representing the interests of the Brazilian state. This is apparent as the manifestation is in violation of the 1988 Constitution and the human rights treaty-norms ratified by Brazil. The attacks on free speech by the government through the AGU’s manifestation is another sign of the local democratic constitutional erosion process. Defending the role of the media and journalists from possible harassments by Military Justice is another challenge assigned to the STF.
The battle over free speech in Brazil and the government’s strategy against journalists
It is well known that Brazil recently was pointed out as one of the worst countries in the world to be a journalist and arbitrary lawsuits performed or encouraged by Bolsonaro are called a „national sport“. After two and a half years of the President’s term, it is possible to say that legal intimidation is one of his main strategies to deal with critics. In an unprecedented way after the 1985 redemocratization, he and his allies revived the usage of the National Security Law starting criminal investigations towards whoever tries to criticize him in the public sphere, a strategy enhanced in the Covid-19 pandemic (see here, here and here) – which is, in Brazil, an astonishing tragedy. Facing such an environment, the Brazilian Press Association sued the government with the Allegation of Non-Compliance with a Fundamental Precept 826 (hereinafter, ADPF 826 – Arguição de Descumprimento de Preceito Fundamental) pursuing the constitutional review of the opening of criminal investigations against journalists. For the plaintiff, these professionals are only doing their jobs when criticizing the government.
One of the orders requested was the prohibition for journalists to be tried before the Military Justice when they criticize the military personnel and institutions. The AGU, however, justified the competence of the specialized justice to try civilians according to the Military Criminal Code, a statute still valid whilst approved in the early of the 1964-1985 dictatorship by Decree-Law no. 1.001/1969. The piece is supported by the legal manifestations of the offices of the high commands of the Armed Forces and does not engage in a dialogue with the 1988 Constitution concerning free speech or the press‘ activity.
Bringing criminal investigations and lawsuits against journalists who criticize the governments’ actions for Military Justice is another step in the process of political military tutelage in Brazil. As the Bolsonaro’s administration is filled with military, it is inevitable the association between them. It is a programmed association, as even non-military government’s ministers, such as the Minister of Health, Marcelo Queiroga, wears typical Brazilian Army clothing in his interviews. On the same day the AGU’s manifestation was filed before the STF, General Gomes Mattos, the Chief Justice of the STM, was interviewed in the media and defended President Bolsonaro of all misbehavior or criminal accusations and said „the left [opposition] is stretching the rope“, an expression used to refer someone is exceeding the prudential limits generally accepted. With a Chief Justice saying something like that, it is difficult to expect that journalists would receive a fair judgment.
The capture of state institutions by Bolsonaro’s government and the unresolved matter of Military Justice
The time of politics has always been faster than the time of law. The attacks against democratic institutions stem from a political-military project and their capture, such as in the AGU case, is a relevant mechanism for achieving this goal. Its argument allowing civilians to be prosecuted by the Military Justice is an example of the constitutional democracy erosion’s process facing Brazil, but it is not an isolated initiative. In 2020, the AGU took judicial measures to support the commemorations of the coup d’état promoted by the military in 1964. Since 2014, the National Truth Commission recommended that the Brazilian government should refrain from commemorating this heinous episode. In practice, this capture dissociates it from a state institution towards a government tool. With the Armed Forces it is no different. In a recent post, we announced the capture of the Armed Forces by Bolsonaro and the result has become more evident: with the politicization of the military, they turned into a government’s right arm instead of a state institution.
The ADPF 826 is relevant because it problematizes an unresolved issue in the local transitional justice system. The competence of the Military Justice to ty civilians in peacetime remains unaffected even after the redemocratization. As Anthony Pereira’s seminal work showed, the engagement of the executive and judiciary branches with the military regime in 1964-1985 used this competence to try thousands of civilians, mainly political students protesting against the dictatorship, in the Military Justice.
Although the National Truth Commission report recommended the exclusion of civilians from Military Justice, the topic has been ignored by the legislative branch. In 2013, the General-Prosecutor of the Republic (Procurador-Geral da República) promoted the ADPF 289 seeking a constitutional review forbidding this possibility according to the 1988 Constitution. Just over seven years, the lawsuit has not yet been appreciated. In 2018, Michel Temer’s government, which engaged with the military after the impeachment of President Dilma Rousseff, enacted the Law no. 13.774 expanding the Military Justice’s competence to try military accused from, in special operations, committing crimes (even) against civilians.
Could the STF have settled this controversy to prevent trials of civilians in the Military Justice? The answer is yes, we have no doubts. The Court’s case-law, however, is wobbly inasmuch that it supports the competence of these specialized courts to try civilians who commit crimes against the „military institutions“. This lack of solid position feeds the movements curtailing the rights of free speech, which affects journalists (and citizens in general). While nothing changes, the Bolsonaro government enjoys the current situation, which is incompatible with the 1988 Constitution, and, by the capture of institutions, such as the AGU and the Armed Forces, keeps eroding the Brazilian democracy.
The obligations derived from the Inter-American Human Rights System
Another essential feature of the Brazilian legal system that is relevant to this issue is its entanglement with the Inter-American System of Human Rights. The state ratified the American Convention for Human Rights (1969) and expressly declared its submission to the jurisdiction of the Inter-American Court of Human Rights. Both the Commission and the Court already ruled cases dealing with limits to the Military Justice competence. The message from these bodies is twofold: on the one hand, the Military Justice should be prevented from trial cases regarding serious human rights violations committed by military against civilians; on the other hand, this jurisdiction also has no competence over civilians accused from offences which have no strict engagement with military discipline.
The understanding about the limitations of the Military Justice competence by the Court was presented in numerous decisions, like in the cases concerning Mexico in early 2010’s (here, here and here). While Brazil has not yet been condemned by the Court about the misuse of its Military Justice to try cases referring civilians as victims or defendants, it is possible to say this specialized justice breaches the case law and recommendations of the Inter-American institutions as far as permits the trial of subjects involving civilians which has no matter with strict military discipline measures. In effect, the previously mentioned report of the National Truth Commission requiring the exclusion of civilians from Military Justice is a transitional justice mechanism arising from the Brazilian conviction in the „Gomes Lund“ case. Until now, it also has been ignored.
The long-time politicians have done nothing to reform this incompatibility which has led journalists to be menaced by a strategy performed by the executive in contradiction to the country’s obligations before international human rights. If the legislative and the STF keeps allowing that, one can expect the Inter-American Commission and Court dockets will grow with more Brazilian cases.
Attacks on free speech are one of the main signs of democratic constitutional erosion. Alongside these, authoritarianism advances when the government begins to capture institutions, controlling their functions to expand, through judicial and administrative channels, the deteriorating democracy’s project. Brazil has drawn the attention of the international community because of the speed at which its democracy has been tested by the government’s authoritarian delusions. The institutions are resisting, and civil society has also become aware that horizontal and vertical control over the Bolsonaro government should not be limited to presidential elections in 2022. The media has a vital role in this situation. Will the STF prevent journalists from trial before Military Justice? We believe so. However, the game is still open, and the rules will only remain clear if the time of law is not overtaken by the time of authoritarian politics.