—Octávio Luiz Motta Ferraz, Director of the Transnational Law Institute, King’s College London
Brazil is not for beginners, so goes the age old saying. But more than two years of Bolsonaro is quickly making the whole world experts in Brazil’s grotesque antidemocratic habits. The most recent episode in this tragic soap opera was the attempt by the attorney general, the highest official in charge of enforcing the law, to silence a critical law professor. The means: a petition to the ethics committee of the University of São Paulo, where the professor works, and a threat of criminal charges for alleged calumny, defamation and insult.
The story would be ludicrous if it were not tragic in the current fragile state of Brazilian democracy. It requires no expertise in criminal law or political theory to know that being able to criticise a public official, even with the harshest words, is a minimum condition of any half decent democratic regime. When one realises what Conrado Hubner Mendes, the professor in question, actually wrote, the story becomes even more bizarre.
The attorney general, Augusto Aras, complained about a couple of tweets and an opinion article published in Mendes’s weekly column in the daily broadsheet Folha de S. Paulo (‘Bolsonaro’s anteroom for the International Criminal Court: The required omission of the Brazilian justice system is what our Attorney General provides’). In those pieces, the professor fiercely criticised the attorney general for not only negligently failing to fulfil his duty to hold the President accountable to the law (in particular during the pandemic), but also for deliberately protecting the President. The professor called the attorney general a ‘serf of the president’ and a ‘lamp-post’ (an expression in Brazilian Portuguese to denote someone who is good for nothing).
The attorney general wants to silence such criticism based on the following tortuous argument. The Brazilian Criminal Code states in article 319 that it is a crime for any public official to ‘unduly omit or delay the execution of an official act, or to execute such an act, against the law, to satisfy personal interest or desire.’ (the crime of prevarication). So, according to the attorney general, when the professor criticised him for failing to carry out his duties properly, the professor was actually himself committing crimes, the crimes of calumny, defamation and insult (articles 138, 139 and 140 of the Criminal Code) by affirming that the attorney general is prevaricating.
Again, it does not require profound knowledge of criminal and constitutional law to conclude that such interpretation is inadequate, not to say bizarre. It would mean the death of freedom of expression, a fundamental right guaranteed in article 5, IV of the Brazilian Constitution, if any criticism of a public authority were classified as calumny via such a tortuous interpretation of the Criminal Code. It would also mean the death of democracy, as the freedom to criticise public officials, even with the harshest words, is the lifeblood of democratic regimes.
Does that mean that freedom of expression is an absolute right and that professors and others are totally free to say whatever they want against public officials? Of course not. Freedom of expression can be legitimately limited in a democracy in order to safeguard other important values such as democracy itself, public health, national security and the fundamental rights of others. As with most fundamental rights, the challenge is to draw the precise line where freedom of expression becomes excessive and needs to be curtailed, the proportionality test in constitutional law parlance.
In any robust democratic regime that takes rights seriously, however, this line cannot be drawn too narrowly. On the contrary, it has to be drawn rather widely to avoid the notorious chilling effect on speech that limitations produce. The current case is so far from that line, however, that no doubt can arise of the inadequacy of the attorney general’s conduct and of his true purpose: the intimidation of his critics.
Suggested citation: Octávio Luiz Motta Ferraz, On Defamation and Intimidation: The Brazilian Attorney General Tries to Silence a Law Professor, Int’l J. Const. L. Blog, May 19, 2021, at: http://www.iconnectblog.com/2021/05/on-defamation-and-intimidation-the-brazilian-attorney-general-tries-to-silence-a-law-professor/