ENFORCEMENT OF THE BRAZILIAN NATIONAL SECURITY LAW

The National Security Law (‘LSN’) was enacted during the Brazilian military dictatorship. Nevertheless, it is still in force and has been used throughout the years. The scope of its enforcement is somewhat doubtful. Some argue that the LSN is not receptioned under the 1988 Federal Constitution (a landmark in the country’s re-democratization). The LSN is also discussed in draft-bills proposed by politicians in the National Congress. However, the Brazilian Federal Supreme Court (‘STF’) has yet to decide on this matter, even though other laws enacted during the Brazilian military dictatorship were already considered invalid under the Brazilian democratic order.

In the Bolsonaro Administration, there has been a significant increase in LSN enforcement both as a rhetorical device and as a justification for the opening of investigations and police inquiries by State Ministers and by the Office of the Prosecutor General of the Republic. During the first year of the government, there were over 20 police inquiries based on the LSN, which is unprecedented since at least 2000. Just after these cases and only in the first five months of Bolsonaro Administration, 15 more police inquiries were opened according to the data agency ‘Fiquem Sabendo’.

What do the data reveal? If we examine who relies on this law enforcement, against whom these dispositions are used and why, the scenario arising from these analyses is relatively complex and exposes the coexistence of very different conceptions regarding the legal scope of the LSN, which leads to claims and targets that differ a lot from each other.

Firstly, several agents have made use of the LSN recently, including the President, the Prosecutor General of the Republic, State Ministers and even some civil society organizations. However, the LSN is not always invoked to actually open police inquiries. Sometimes it is used more as a threat. The current President, for instance, has already defended that former-President Lula could be a target of the LSN enforcement since the latter called Bolsonaro a “militiaman” back in 2019. Additionally, Bolsonaro raised the same allegation regarding former-Minister of Justice Sérgio Moro, a well-known judge who was in charge of the Car-Wash Operation (‘Operação Lava-Jato’), for supposedly leaking some confidential reports to the press. In Lula’s case, the inquiry was indeed opened but it was shortly after closed.

Secondly, the targets are also very different. These include both civil society members and state agents, such as the STF Justices, deputies, and civil servants. When it comes to civilians, it is worth highlighting that the most persecuted ones are political dissidents. This may suggest that the LSN enforcement  is being used as a strategy to dissuade the opposition in a similar movement to what has happened during the Brazilian military dictatorship. Moreover, the Minister Chief of the Institutional Security Office has recently envisioned the possibility of suing an association that defends indigenous rights for a crime under the LSN. The Ministry of Justice, in turn, has requested the opening of inquiries against a cartoonist and two journalists due to a cartoon and a newspaper column that have supposedly smeared the President’s honour.

However, it would be misleading to say that only oppositionists are targets of the LSN enforcement. Several demonstrators that are actually supportive of the Bolsonaro Administration have also been targeted and some of them are currently under investigation for disturbing the “political and social order”. Several other inquiries have been opened based on the LSN and some protestors engaging in the antidemocratic acts that took place in April 2020, in an armed settlement known as “Brazil’s 300”, as well as in the firework attacks upon the STF were temporarily imprisoned. Besides, some Brazilian federal deputies that are allies of the Bolsonaro Administration, federal public servants and STF Justice  Gilmar Mendes have also become a target at some point of the LSN enforcement.

The LSN has been used in an intense, yet inconsistent manner in the last few months. Political actors and civil society invoke this law against oppositionists and other agents that could disturb “national security” in a broad and undetermined sense. The LSN is invoked both by those that are inclined to institutional rupture and by those that praise maintaining the democratic order, which may point to its relevance in the current Brazilian panorama.

You may check out below the mentioned cases and other relevant ones regarding the LSN enforcement.