The judges of the State of Exception

A state of exception is a form of dictatorship that attempts to avoid admitting it is a dictatorship. It seeks to maintain the existing legal framework but suspends its validity, citing exceptional circumstances. In this, it also resembles a traditional dictatorship, which always alleges exceptional circumstances to, almost always saying for a determined period, suspend the legal conditions of democracy in order to supposedly reinforce it once the exceptional situations have passed.

Dictatorships don't usually say they're here to stay. They usually say they establish themselves to, paradoxically, create the conditions for strengthening democracy, which is threatened by anomalous conditions that it intends to overcome and suppress.

The discourse of a state of exception thus needs not only to characterize an exceptional situation, but also to constitute a scapegoat, responsible for the perversion of the normal functioning conditions of democracy, which would have to be fought relentlessly. Hence the need to suspend the normal conditions of fundamental rights, so that this fight could be carried out, without truce and without a deadline.

In the National Security Doctrine that guided the military dictatorship in Brazil from 1964 to 1985, the exceptional conditions were subversion, accompanied by corruption, which would erode the foundations of democracy and prepare the conditions for the installation of anti-democratic regimes – with communism as the bogeyman. The establishment of a dictatorship would be necessary, in which the State would be transformed into a headquarters for defense against anything that represented any form of risk of subversion.

Anything was valid, from arbitrary arrests without any kind of accusation, torture, execution, withdrawal of citizenship rights, establishment of institutional acts, election by the high-ranking officers of the Armed Forces of who should govern the State, dismissal of parliamentarians, judges, teachers, public officials, even the establishment of "secret decrees" (sic). The most radical perversion of democracy would be the path to the rescue of what would be a purified, renewed democracy, purged of the elements that would threaten it.

It was a doctrine developed by the US for the Cold War, disseminated by the Superior War College and adopted by the high-ranking officers of the Armed Forces, to install the military dictatorship starting in 1964. It was the most cruel regime Brazil has ever had, which ended up being defeated when it exhausted the political and ideological force it had accumulated. It was condemned by democracy, denounced by the Truth Commission, although it remained an ideological and political reference for the Brazilian far right and for military groups.

The state of exception is a renewed expression of dictatorship which, since pure and simple dictatorship has been officially condemned, seeks to reclaim dictatorial forms of action within the framework of an institutional regime. To this end, it revives mechanisms of the dictatorship, cloaked in arguments of dubious legal validity, to override the legal rights guaranteed in the 1988 Constitution, which succeeded the Brazilian dictatorship.

The discourse replicates mechanisms similar to those of the National Security Doctrine, adapted to the current discourse of the right wing in Brazil and throughout Latin America, as well as in other parts of the world. First, it defines a supposed situation of exceptionality, without which the violation of fundamental democratic rights would be impossible. The country would have been plagued by a gigantic and omnipresent wave of corruption, which would corrupt the entire political system and society itself. It is therefore essential to fabricate this discourse and have monopolistic means to massacre public opinion with a systematic campaign disseminating the idea that Brazil's fundamental problem is not social inequality, the predominance of financial speculation over production, among other problems, but corruption.

The scapegoat for this exceptionality would be the PT (Workers' Party) and its governments, which were thus transformed into the preferred and almost sole target of the fight against corruption. In the name of this exceptionality, it is proposed to substantially diminish the effect of habeas corpus, introduce ideological selections and even whistleblowing services within the public service, up to the absurd and totalitarian pretension of legalizing "illicit evidence in good faith," which could include torture, in addition to other atrocities that the repressive mentality of fascism allows.

Once again, exceptional necessity is invoked, supposedly to defend democracy, in order to profoundly undermine it. In the name of fighting corruption, prosecutors who should be safeguarding it, earning exorbitant salaries far exceeding what is permitted by the Constitution, want to legalize their arbitrary actions, turning them into norms and imposing a legalized state of exception in Brazil.