Since Brazilians enacted their democratic Constitution, in 1988, the law of their country has in theory prohibited all forms of censorship to freedom of the press. However, the situation in Brazil provides an extraordinary illustration of how ‘law’ in practice may be completely different from law in theory. Regardless of its legal protection, reality shows that freedom of the press has not been fully protected in Brazil.
Brazil’s Constitution prohibits all forms of censorship to freedom of the press. It also provides that intellectual, artistic, scientific, and media activities must be totally free from any sort of censorship. Article 220, for example, enunciates that manifestations of thought, expression, and information shall never be subject to government restriction.
To sum up, no Brazilian law might go against freedom of the press and expression, for the basic law of this nation is clearly against censorship for reasons of political, ideological, and artistic purposes.
Regardless of such provisions, constant attacks have been occurring against freedom of the press. Since President Luiz Inácio Lula da Silva took office in 2003, the government has regularly complained that journalists are giving too much ‘negative information’ about Lula, who also says that journalists still have to develop a more ‘loyal relationship’ with the state.
In reacting against this kind of intimidation from the current administration, journalists decided to deliver on March 2004 their Manifesto for the Freedom of Information.
They basically argued that Lula has created ‘serious obstacles’ to freedom of the press, and imposed a ‘law of silence’ upon public officers, who are now forbidden to provide any information about official hearings that the press was normally authorized to attend, even during the military government.
In fact, executive employees from federal ministries, agencies, public companies, and regulatory agencies have been advised that any information given to journalists always need to be ‘filtered’ by the authority in charge of each department. The Federal Cabinet of Institutional Security says that those employees cannot talk with the press without their supervisors’ previous permission.
Although the Lula administration describes the measure as ‘awareness-raising campaign’, the press decided to call it censorship, because it goes beyond what the law says about protection of sensitive information.
Political analyst Dora Kramer has even reminded the President that his measure clashes with electoral promises of governing with transparency. As she wrote, such ‘law of silence’ is “more proper to militarised and misguided minds that mistake obligatory party discipline for democratic freedom of information”.(1)
The Times Affair
A good sign that freedom has declined is the government decision to expel a New York Times (NYT) correspondent from the country. This decision, one may say, raises serious doubts about President Lula’s commitment to values such as democracy and the rule of law.
On May 6, 2004, the federal Justice Ministry announced that the visa of NYT journalist Larry Rohter was cancelled because he wrote an article on public concerns about Lula’s drinking habits.
A few days later, Lula was widely reported to have declared: “It’s not for a president to reply an idiocy such as this. It doesn’t deserve any reply. It deserves radical action. I think he should be much more worried than I am.” (2)
According to the PT government, the visa’s cancellation would send a message that foreigners cannot criticise the President. In speaking for his supporters from the Workers’ Party (PT), President Lula stated:
“This journalist will no longer stay in this country. This will serve as an example for others. If I didn’t take this measure, any other journalist, from any other country, could do the same, without any worry of punishment.”(3)
Likewise, Foreign Minister Celso Amorim argued that the expulsion was not an act of censorship, but punishment for article offending “the honour of the chief of state”.(4)
Another PT member, Sociology Professor Paulo Delgado, declared that foreigners who criticise Lula are persona non grata in the country: “The Presidency of the Republic belongs to all Brazilians and cannot be the object of unbecoming consideration by a foreigner who works in our country.”(5)
It is important for us to remember that a military government ruled Brazil for more than 20 years (1964-1985). In 1980, military officers enacted the same statute that Lula tried to apply in order to expel the NYT journalist.
Article 7 says that “no visa will be granted to any foreigner considered harmful to the public order or the national interest”. Of course, abstract phrases like ‘public order’ and ‘national interest’ might be easily manipulated by an authoritarian mind.
A Public Prosecutor, Mario Gonçalves Jr., pointed out: “A law such as this could only have sprung from times in which freedom of expression was suffocated in scandalous fashion in Brazil, under the heavy hand of high-ranking military coup leaders”.(6)
In fact, the Lula administration went far beyond the law. It grossly distorted the statute in order to unduly authorize the Justice Ministry to suspend the visa without due process of law.
Besides, the statute forbids the expulsion of those who are married with Brazilian woman and/or have Brazilian children. Rohter, a journalist who lives in São Paulo for many years, is married to a Brazilian woman and has Brazilian children.
Thus the Reporters Without Borders (RWB) reminded Lula that his gesture is ‘unworthy of a democratic leader’, and it is for the court system to decide upon libel issues. If he had committed any excess, the RWB stated, Brazilians have laws providing for moral compensation.
To prevent Larry Rohter’s arbitrary expulsion, a senator filed habeas corpus on his behalf to the Superior Tribunal of Justice (STJ). The petition states that the measure violates basic rights mentioned by the Brazilian Constitution, such as freedom of expression, free press, and several guarantees of individuals living in the country.
STJ Justice Peçanha Martins agreed with the reasoning and decided to suspend the decision until his peers provided a final judgment. However, the federal press agency reported that President Lula ‘mocked’ the decision, and suggested that the executive branch would just ignore it. Lula even called that judicial decision a ‘non-decision’ for the executive.
But it is important to say that the imbroglio was solved with a farce. Since Lula was harshly criticised across the world for his arbitrary behaviour, he decided to write a final and unexpected chapter for the case.
Unable to step back from his radicalism, Lula decided to regard as retraction a letter addressed by Rohter, which actually goes on to reiterate the full content of his article.
After all, in his own biography, Lula – O Filho do Brasil (Lula – Brazil’s Son), a book written by a journalist and Lula’s friend, Denise Paraná, it is the President himself who confess his over-indulgence with a potent sugar-cane spirit: “Here is the truth: politics is like a good cachaça. You take the first shot and that’s it, you can’t stop, only when the bottle is empty”.(7)
A Cuban Inspiration
In practice, freedom of the press might be dramatically reduced if Brazil’s National Congress enacts a law proposal introduced in August 2004 by the PT government.
Its purpose is to create the Federal Council of Journalism (CFJ), an entity that will have power to “orient, discipline, and monitor” journalists who work in the country.
Once this bill is enacted, they will have to be registered with such entity to work. Penalties for violations range from fines to revocation of a reporter’s registration. The prototype that inspired the proposal is the Ethics National Commission from Fidel Castro’s Cuba.
The essence of democracy is freedom of expression. Attempts to control the press under the pretext of disciplining journalists are basically anti-democratic.
However, the federal press secretary, Ricardo Kotscho, says that the purpose of the CFJ “is to guarantee society the completeness of freedom of the press, and not the freedom of some professionals and companies to publish what they feel like, at the service of their own interests”.(8)
For Lula’s chief policy strategist, Luiz Gushiken, “nothing is absolute, not even freedom of the press”.(9) And Labour Minister Ricardo Berzoini goes on to suggest that the state has ‘urgency’ to establish an ‘efficient body’ with power to punish ‘bad journalists’ who do not behave ‘adequately’.(10)
In contrast to what President Lula likes to say, the press is not a power above the law in Brazil. The country has several statutes, including Civil and Criminal legal codes, to deal with excesses committed by bad journalists.
A highly respected public lawyer, Ives Gandra, thinks the objective of the CFJ is actually to persecute ‘independent’ journalists. He also reminds us that Brazilian law already allows people to file criminal action for moral harm against journalists who abuse their freedom.
On the other hand, Gandra thinks the idea of a council of journalism raises the suspicion that the Lula administration may have a long-term goal of staying in power for many years, by reducing the democratic state under the rule of law (‘Estado Democrático de Direito’) to its minimal expression.
The Lula administration claims that a certain union of journalists, the National Federation of Journalists (Fenaj), has drafted the law proposal about the CFJ.
Since 70% of journalists do not belong to trade association, it is quite obvious for us to conclude that the Fenaj does not represent the majority of journalists. In fact, not a single major news organization has backed the law proposal.
Brazil’s top television anchor, William Bonner, has even commented that this kind of proposal means ‘intimidation’ against journalists. Also, a former PT congressman, Fernando Gabeira, commented that the law proposal “sounds like something they have in Cuba or other socialist countries where the media is organized by the parties”.(11)
Ironically, the Lula administration regarded the outcry against the proposal as another evidence of “the kind of news media abuse that the new system would prevent”.(12)
Although top officials from the executive argued that the Fenaj created it, everyone knows that Fenaj is a union controlled by a PT supporting group of unions called CUT. Five out of the seven directors of the Fenaj are members of the Workers’ Party (PT).
The other two are supporters of the current administration. Most of Fenaj directors are not even journalists, but advisers for state-owned companies and/or politicians. Under the bill, such ‘journalists’ would select the first CFJ board.
Since Fenaj members are mostly unionized government-communications staffers, Richard Hayes has noted that the CFJ might become “the first step towards muzzling the press and creating a Pravda or Gramma… There are plenty of semi-employed ‘journalists’ members of Fenaj that would happily work in the government-controlled propaganda agencies”.(13)
Therefore, Veja (the Brazilian Time magazine) says that this bill constitutes “the most serious attack on freedom of expression since the end of the military regime”.(14)
For Alberto Dines, such bill is “the most inept and bewildering in the area of the press that any government has produced since the return of democracy in 1985”.(15) Also, Dines commented that the proposal is an attempt to institute a ‘journalistic patronage’ which undermines “the indispensable separation between government and press”.(16)
Finally, we must consider that Brazil has recently supported the request from Libya and Cuba to suspend the consultative status of the Reporters Without Borders (RWB) within the U.N. Commission on Human Rights. The fact provides extraordinary evidence that the Lula administration does not have any esteem for freedom of the press.
On July 23, 2003, Brazil supported the RWB suspension because the free-press organization dared to criticise the election of Colonel Gaddafi’s Libya as the chair of that commission.
In joining Libya and other countries with extensive record of human rights violations, such as China, Cuba, Iran, Qatar, and Saudi Arabia, the Lula administration voted for the suspension of one of the few press-freedom organizations to have consultative status within that branch from the U.N. Economic and Social Council (ECOSOC).
Of course, Australia, France, Germany, Ireland, Sweden, United Kingdom, and United States, did not agree with the Brazilian decision. Arguably, Brazil supported it because the RWB has been criticising Lula’s close friends, Colonel Gaddafi and Fidel Castro, for violently suppressing all forms of freedom in their countries.
Indeed, Lula has even visited Cuba to lend his unconditional support to Fidel Castro’s oppressive regime, whose ideological affinity with PT leaders is a notorious fact.
(1) Kramer, Dora; Bocas Fechadas em Order Unida. O Estado de S. Paulo, 21/01/2003.
(2) Human Rights Watch; Brazil: Journalist’s Expulsion Undermines Free Expression. Press Release, May 12, 2004.
(3) Neves, Francesco; Brazil: Times Affair Fractures Lula Administration. Brazzil, May 2004.
(4) Chetwynd Gareth; Brazil Expels New York Times Reporter for Offensive Story. The Guardian, May 13, 2004.
(5) Nascimento, Elma-Lia; Brazil’s Lula from Victim to Villain. Brazzil, May 2004.
(6) Gonçalves Jr., Mário; Lula’s Authoritarian Faux Pas: A Legal Perspective. Info Brazil, Week of May 15-21, 2004.
(7) Cristaldo, Janer; Will Lula Oust Lula from Brazil? Brazzil, May 2004.
(8) Rohter, Larry; Plan to Tame Journalists just stir them up in Brazil. The New York Times, September 6, 2004, Section A, p.6.
(9) Hall, Kevin G.; Proposal to License Journalists in Brazil Sparks Outcry. The Kansas City Star, September 15, 2004.
(10) Soares F.A.; A Liberdade de Imprensa ou o Efeito Larry Rother. CMI Brasil, 09 August 2004.
(11) Hall, Kevin G.; Proposal to License Journalists in Brazil Sparks Outcry. The Kansas City Star, September 15, 2004.
(12) Rohter, Larry; Plan to Tame Journalists just stir them up in Brazil. The New York Times, September 6, 2004, Section A, p.6.
(13) Hayes, Richard; Left Unchecked Would Muzzle Brazil. Brazzil, August 2004.
(14) Gaspar, Malu; O Fantasma do Autoritarianismo. Veja, 18 August 2004.
(15) Rohter, Larry; Plan to Tame Journalists just stir them up in Brazil. The New York Times, September 6, 2004, Section A, p.6.
(16) Dines, Alberto; Press Too Cozy to Power in Brazil, Brazzil, May 2004.
Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil. He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro. He is a member of the editorial board of Achegas, Brazil’s journal of political science. His e-mail address is: firstname.lastname@example.org.
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