On Wednesday, President Jair Bolsonaro sanctioned a bill that revokes the National Security Law, created in 1983, a period in which Brazil was still living under a military dictatorship.
O president vetoed the passage that provided for punishment of “misleading mass communication”, defined in the bill approved in Congress as “promoting or financing, personally or through an intermediary, using an expedient not directly provided by the private message application provider, campaign or initiative to disseminate facts that you know are untrue, and that are capable of compromising the health of the electoral process.”
The president is investigated by the Supreme Court (STF) in the so-called fake news inquiry, which investigates the disclosure of false information.
Bolsonaro justified the veto of this passage with the argument that it goes against the public interest by not making clear what would be punished – if the conduct of those who generated the information or who shared it – and if there would be a “court of truth” to define which can be understood as untrue. The justification also says that the vetoed passage could “remove the reader from the public debate”.
Bolsonaro sanctions bill that revokes National Security Law — Photo: Reproduction/Official Gazette
The president also vetoed an article that provided for punishment of anyone who prevented “the free and peaceful exercise of demonstrations.” The argument is that it would be difficult to define before and at the time of the operational action “what would become a peaceful demonstration”.
Bolsonaro also vetoed a passage that provided that military personnel who commit crimes against the rule of law would have their sentence increased by half, added to the loss of their rank or graduation. The justification is that this puts the military in a more serious situation and represents “an attempt to prevent expressions of thought emanating from more conservative groups.”
In recent months, the National Security Act has been used against Bolsonaro’s critics. In February, the Minister of the Federal Supreme Court (STF) Alexandre de Moraes also used the National Security Law to order the arrest of deputy Daniel Silveira (PSL-RJ). The congressman had released a video apology for AI-5, the harshest instrument of repression of the military dictatorship, and a defense of the closing of the Court. The guidelines are unconstitutional.
It is up to the National Congress, in a joint session of the Chamber of Deputies and the Federal Senate, to analyze, in 30 days, the vetoes of the President of the Republic to projects approved by parliamentarians. If it is not appreciated during this period, the veto starts to block the agenda of the sessions of the National Congress.
The project approved by the National Congress includes, in the Penal Code, a list of “crimes against democracy”, for example:
- crimes against democratic institutions;
- crimes against the functioning of elections; and
- crimes against citizenship.
In addition to repealing the National Security Law, the proposal approved by lawmakers adds articles to the Penal Code to define crimes against the Democratic Rule of Law.
The text typifies ten new crimes, they are:
Attack on sovereignty: prison of three to eight years for the crime of negotiate with a foreign government or group to provoke typical acts of war against the country or invade it. The penalty can even be doubled if, in fact, war is declared. If there is participation in a military operation to submit the national territory to the domain or sovereignty of another country, the seclusion is of four to 12 years;
Attack on national integrity: two to six years imprisonment for those who practice violence or serious threat to dismember part of the national territory to constitute an independent country. The criminal must also answer for the penalty corresponding to the violence of the act;
Espionage: prison of three to 12 years for whom deliver secret documents or information, which could endanger democracy or national sovereignty, to foreign government or criminal organization. Whoever assists spy is liable for the same penalty, which can be increased if the document is revealed in violation of the duty of secrecy. In addition, anyone who facilitates espionage by, for example, providing passwords to information systems may be liable for arresting one to four years. The text clarifies that it is not a crime to hand over documents to expose the practice of crime or the violation of human rights;
Violent abolition of the democratic rule of law: prison of four to eight years for whom try, with the use of violence or serious threat, to abolish the Democratic Rule of Law, preventing or restricting the exercise of constitutional powers. The criminal must also answer for the penalty corresponding to the violence of the act;
Coup d’etat: prison of four to 12 years who are youto depose, by violence or serious threat, the legitimately constituted government. The criminal must also answer for the penalty corresponding to the violence of the act;
Interruption of the electoral process: prison of three to six years and fine for whom “prevent or disturb an election or the measurement of its result” through violation of the voting system;
Misleading Mass Communication: Pity of one to five years and fine for anyone who offers, promotes, constitutes, finances or integrates, personally or by third parties, through an expedient not provided directly by the provider of the private messaging application, campaign or initiative to disseminate fake news capable of compromising the electoral process;
Political violence: Pity of three to six years and fine for whom restricting, preventing or hindering, through physical, psychological or sexual violence, the exercise of political rights to any person based on their sex, race, color, ethnicity, religion or national origin;
Sabotage: Pity of two to eight years for whom destroy or render useless means of communication, establishments, installations or services destined to the national defense, with the objective of abolishing the Democratic Rule of Law;
Attack on the right to demonstrate: prison of one to four years for whom prevent, through violence or serious threat, “the free and peaceful exercise of manifestation by political parties, social movements, unions, class bodies or other political, associative, ethnic, racial, cultural or religious groups”. The penalty can be increased if there is serious bodily harm (from two to eight years), if it results in death (from four to 12 years).
The text approved by senators and deputies also establishes that the penalties provided for the crimes listed above will be increased by one third if the offense is committed with violence or threatens to use a firearm.
If the crime is committed by public agent the penalty will also be increased by a third and the professional will lose his position. case one military practice the crime, the penalty increases by half, cumulated with the loss of rank and rank or rank.
The text also establishes detention of three to six months, or fine, for whoever ipublicly inciting animosity between the Armed Forces, or of them against the constitutional powers, civil institutions or society.
The proposal makes it clear that it will not be considered a crime against the Democratic Rule of Law:
- Appeal to the critical manifestation of constitutional powers;
- Journalistic activity;
- Claiming constitutional rights and guarantees through marches, meetings, strikes, agglomerations or any other form of political manifestation with social purposes.
Bolsonaro vetoed the following excerpts:
Article 359-O: promote or finance a campaign or initiative to disseminate facts known to be untrue, with a penalty of 1 to 5 years and a fine.
According to the president, the legislative proposal goes against the public interest by not making it clear which conduct would be the object of criminalization, whether the conduct of the one who generated the news or the one who shared it, as well as leaving doubt whether the crime would be continued or permanent, or even if there would be a ‘court of truth’ to define what would come to be understood as untrue to the point of constituting a crime.
Article 359-Q: For the crimes provided for in this chapter, a subsidiary private action, initiated by a political party with representation in the National Congress, is admitted if the Public Prosecutor’s Office does not act within the period established by law, offering the complaint or ordering the archiving of the investigation.
According to the president, it is not the responsibility of a political party to intervene in criminal prosecution or in the criminal activity of the State.
All of Chapter V, which provides for crimes against citizenship, with penalties from 1 to 8 years of imprisonment.
According to the president, the legislative proposal goes against the public interest, given the difficulty of characterizing, a priori and at the time of operational action, what would become a peaceful demonstration, which would generate serious legal uncertainty for public agents of the responsible security forces for maintaining order. This could lead to actions below what is necessary to restore tranquility, and would put society at risk, since it would make it impossible to perform efficiently in containing excesses in moments of serious instability.
III – half, cumulated with loss of rank and rank or graduation, if the crime is committed by a military.
According to the president, the proposal violates the principle of proportionality, placing the military in a more serious situation than other state agents.
Article 359-U, which provides for increased penalties.
According to the president, the proposition contradicts the public interest, as the aggravation cannot be admitted for the simple condition of public agent in the broad sense, under penalty of objective criminal liability, which is prohibited.