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Who really defends democracy?


Who really defends democracy?

Albert Einstein once said that his political ideal was democracy, so that every man should be respected as an individual, and none venerated.

In recent times, the word democracy has come to resonate in countless discussions, especially when the subject is a supposed crisis between powers.

Much is being done, including the departure from clear constitutional norms, with the justification that such actions would be to defend democracy.

Hence the question in the title: who really defends democracy?

Well, for starters we could respond with a big and resounding NOBODY!

Impersonality must be the rule in a democratic republic, so that no one would claim to be a defender of anything.

What would supposedly guarantee something, in democracy, would be institutions.

However, in these dark legal times, what we see is an extreme personalization of institutions, which reverberates not only in the directions that such institutions take, but mainly in the people they reach, including not only members of these institutions, but also popular people.

And it is about these personalizations that we return to the question in the title.

The answer, which should be on the tip of any citizen's tongue, appears to be extremely tormenting in this turbulent and turbulent constitutional environment in our country. To better explain to those who are not in the legal field, we must first analyze what democracy is.

To be very simplistic, we quote the concept of democracy brought by Wikipedia: democracy is a political regime in which all eligible citizens participate equally — directly or through elected representatives — in the proposal, development and creation of laws, exercising the power of governance through universal suffrage.

Democracy is, basically, the political regime in which sovereignty is exercised by the people.

As in the current social context direct democracy (where the people themselves personally exercise their sovereignty) remains impossible, representative democracy has become the rule. In representative democracy, power continues to belong to the people, but is exercised through their elected representatives: Mayors, Councilors, State, Federal and District Deputies, Governors, Senators and the President of the Republic.

You don't need to be an expert in politics to easily conclude that, in democracy, the will of the majority is reflected.

In this area, where is the Judiciary Power?

Now, if we were to coldly analyze the concept of democracy, the Judiciary – regardless of its extreme necessity, importance, and integration into the tripartition of Powers from the Montesquian perspective – would not be a democratic institution.

Let us not confuse the concepts of Constitutional Power – which, undoubtedly, the Judiciary Power is – with a democratic institution.

Despite being in a simplistic field, just to explain one point of view, we are fully aware that the discussion is much deeper and, evidently, in a principled and practical analysis, we could well conclude that, due to the indispensability of the Judiciary for the maintenance of democracy , somehow we have to consider it as a democratic institution. Porém, temos casos claros de situações onde o Poder Judiciário, muitas vezes por situações anômalas, é partícipe de governos totalitários.

Let us remember the year 1933 when, shortly after assuming total power in Nazi Germany, Hitler began to purge members of the Judiciary who did not align themselves with the new regime, extirpating from public life those magistrates who, due to their origins or positions, showed themselves to be adherents to the application of normative precepts that were not in line with the understanding of the head of the nation. From then on, the German Judiciary began to behave as a mere extension of the regime, which facilitated not only the approval but also the full application of the upcoming legal diplomas that became known as the “Nuremberg laws” (1935). , which included the “Reich Citizenship Law” and the “Law for the Protection of German Blood and Honor”. The result is known to everyone.

In 2016, the Turkish State simply removed 2,745 judges for allegedly participating in plans to depose President Tayyip Erdogan. Did the remaining judges continue to have full freedom to act?

A more recent case can be seen in Venezuela, where judges are dismissed from their positions and arrested for the simple fact that they do not conform to what the Executive Branch wants, and there is even news of judges being arrested for simply deciding in a way that does not please the President. In fact, it is worth highlighting that in 2017, among the 33 members of the Venezuelan Supreme Court, eight lived in embassies of Latin American countries.

We finish the example with the situation in Afghanistan, where after the Taliban regained power, the Islamic Courts returned as an extension of the regime.

Such examples demonstrate that, sometimes, the Judiciary can be a mere instrument for maintaining totalitarian governments.

The same can be said about the Armed Forces. Now, there is no member of the armed forces, in practically any democratic regime, who is somehow elected by universal suffrage.

However, the same Armed Forces that, in some regimes, are the guarantors of democracy, can be anomalously used to maintain non-democratic regimes. It all depends on the context in which they are used.

And we go further: the police bodies themselves can also be considered as sometimes guarantors of democracy, sometimes as maintainers of exceptional regimes.

Thus, the consideration of an institution as “democratic” goes far beyond its mere legal configuration, depending, umbilically, on the context in which it is positioned in a given nation, at a given historical moment and, mainly, on the behavior of its members.

But, one moment! If we have already had the opportunity to say that impersonality should be the rule and that personalization is not consistent with democracy, how can we maintain that the behavior of members of a given institution can shape its democratic character?

This determines the maturity or not of a given democracy.

In a sufficiently mature democracy, the undemocratic action of a member of any institution immediately turns on the defense mechanisms of that democracy.

These mechanisms include, internally, the attribution of responsibility for possible undemocratic acts, as well as the extreme punishment of extirpation from public life.

When such internal control mechanisms do not work, the system of checks and balances comes into play, and it is up to other Powers, which monitor and control each other, to return to the limits imposed by the Constitution and Laws.

If this system still fails, there is the possibility in our Constitution of intervention by the Armed Forces, which have the primary function of guaranteeing constitutional powers and, also, Law and order.

Therefore, not only powers, from this perspective, must be considered as democratic institutions.

Even if we consider this, we cannot forget that, due to the lack of popular legitimacy, the Judiciary Power is, among the Powers of the Republic, the least democratic.

Now, the Judiciary, mainly through its Supreme Court, is recurrent in describing itself as counter-majoritarian. In doing so, it further delegitimizes its democratic quality.

How can we expect that a Power exercised by unelected members, which goes against and departs – repeatedly – ​​from the will of the majority of the population embodied in the laws approved by their elected representatives, can be considered democratic?

In the view of Thomas Jefferson, one of the main authors of the United States Declaration of Independence, the Judiciary was only responsible for guaranteeing rights, but never for granting benefits.

The former North American president believed that the concept of law was umbilically related to negative benefits on the part of third parties, or even the State itself. To assert the right to life, for example, there would be no need, as a rule, for any positive performance (action) on the part of any person or institution. It would be enough for these people, acting negatively, not to harm anyone's life.

What, in theory, required a positive provision (an action itself) could not be seen as a right, but rather as a benefit. This is the case, for example, of the Brazilian Federal Constitution, which grants everyone the “right” to health care. To achieve this “right”, there is a need for the State to maintain an entire assistance structure (basically, the single health system – SUS) at the expense of the citizen’s hard-earned taxes. From a Jeffersonian perspective, such a “right” would not, strictly speaking, be a right, even if provided for in Law. This would be a benefit.

In this context, it would be up to the Judiciary only to defend and ensure rights, acting peremptorily so that no one – citizen or State – violates or takes away any right provided for in Law and, mainly, in the Constitution. It is the Judiciary, as a State Power, that guarantees the application of the Law. It is from this perspective that the Judiciary Power can be considered as a democratic institution.

However, it would not be up to this Power to grant, expand or create benefits, or even create abstract and general laws. In doing so, regarding the will of the majority embodied in the approval of laws enacted by their elected representatives (or even in the omission of the approval of a certain law that does not reflect the popular will), the Judiciary is acting as a non-democratic institution.

Even more undemocratic is when the Judiciary itself, the ultimate defender of the Constitution, acts in disagreement with it.

This is where the limits of jurisdiction lie.

Evidently, this discussion, brought here in a simplistic way, is much deeper, as between rights and benefits there is an immense gray field. The article, however, does not allow for this deepening.

But it is clear that the Brazilian Judiciary, through loud judicial activism, finds itself repeatedly acting in an undemocratic manner.

Therefore, we cannot answer the question in the title if the reader expects the answer to relate to a person or an institution.

The maintenance of democracy occurs when the people, maintaining their power – even if merely representative – establish the full possibility of eliminating from public life those agents who do not act as expected.

The health of a democratic normative system is closely linked to the full and immediate possibility of using control systems.

Therefore, there is no specificity in imputing only a specific person or institution to defend democracy.

Democracy, as the ideal of a nation, must be alive and pulsating within the minds and hearts of the people.

A truly democratic nation does not need to entrust the guarantee of maintaining its democratic freedoms to anyone.

The real danger is when a people, numbed by ideological discourses, move away from the concept of democracy to try to impute to a silent majority the inclinations of a noisy minority.

This “dictatorship” of the minority, enhanced by institutions that act in an undemocratic manner, does not in the least comply with the concept of democracy.

Precisely for these reasons, there is a pressing need for the people to use the greatest of the prerogatives that democracy allows them – the exercise of voting – to maintain this very prerogative.

Benjamin Franklin once said that “those who give up essential liberty for a little temporary safety deserve neither liberty nor safety.”

We can make an analogy to this phrase, to say that those who give up complying with the Constitution in the name of Democracy, deserve neither the Constitution nor Democracy.


Article published in Revista Conhecimento & Cidadania Vol. I No. 10 – April 2022 Edition - ISSN 2764-3867



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