May 22, 2019
The issue of the Decree 9.785/2019, which regulated broadly the gun possession in different situations, follows and prove a practice that seems to be on the interest of president Bolsonaro: governing through decrees. Right after taking office, the president had already got involved with the subject issuing the Decree 9.685/2019, which regulates as supposed right to gun possession. In less than three months, this last executive order was revoked by that first one.
In a first and simple comparison, in fact, the Decree 9.785/2019 é much broader than the Decree 9.685/2019. January’s decree regulated in a more direct way of gun possession and, because of that, changed partially what provided for the previous regulation of the Statute of Disarmament. Decree 9.785/2019 revoked both previous decrees and regulated in a broader way the acquisition, logging, possession, carrying and commercialization of fire guns and munition.
After all, why such a hurry in revoking a decree in a brief period of time and involving such a delicate subject, necessitating further changes to clarify that individuals will not have a right to possess rifles?
Under the perspective of public security and the effects that more guns produce in violence, there are important studies that correlate the increasing number of homicides and injuries to an easy access to possession and carrying of guns. However, our perspective of analyses is other one. There are unconstitutionalities and dangerous effects for democracy in this effort for more guns.
First of all, the unconstitutionalities. Decrees are secondary normative acts, that is, they exist so that a president, a governor or a mayor solely regulate statutory laws. A decree is not an act that can regulate directly a constitution. They simply express the necessity of detailing something that allows for operationalize statutory provisions, those ones regulatory of a constitution.
In other words, if a decree clear and simply is contrary to the statutory law, the decree is, obviously, illegal. And because of a simple reason: it is the duty of the legislative branch to enact statutory laws by the legislative representatives for that elected. It is not an attribute of the executive branch, in the case, the president of the republic.
As long as there is an increasing in the issuing of decrees, one red light must switch on. Although this can happen by reason of, for instance, the rising of the number of public policies executed, it can also be the case for an authoritarian trend or the concentration of powers by the executive branch. Therefore, in order to comprehend the difference between these two situations, one way out is to not to assess the quantity of decrees, but the quality of what is by them regulated.
In this case, the Decree 9.785/2019 seems to be located in hypothesis where there is a clear breach of the law.
In fact, the Statutory Law 10.826/2003, known as the Statute of Disarmament, provides for the hypothesis of logging and carrying concessions as dependents of evidence of “effective necessity” by the interested person. Therefore, when allowing, for instance, that a lawyers, a traffic agent or driver of a company or autonomous transporter of freight can demand to carrying a fire gun to the Federal Police without evidencing “effective necessity” to the “exercise of risky professional activity or threat to physical integrity”, the decree makes the assumption of accomplishment of a requirement by the sole desire of the president of the republic.
Accordingly, the decree disposes a requirement provided by the statutory law regularly approved in the National Congress to restrict it to what one only person, the chief of the federal executive branch, wants to.
In that same sense has argued the Federal Prosecutors’ Office, by its Federal Cabinet on Citizens’ Rights, when defending the unconstitutionality of the Decree 9.785/2019. In a Techinal Brief sent to the federal legislative branch, the organ contends that, in the way it was presented, the aimed modification in the regime of possession and use of fire guns “should have been submitted to the National Congress through a bill, as it is not simply a regulatory subject, but the changing of a public policy already legislated”.
In similar way, the Socialism and Liberty Party (Partido Socialismo e Liberdade, PSOL) and the Network Sustainability party (Rede Sustenabilidade, REDE) filed constitutional lawsuits in concentrated judicial review in the Brazilian Supreme Court, arguing that, when issuing the decree, the president has exceeded his constitutional prerogative to regulate statutory laws. In this sense, by usurping the legislative power of the National Congress, there would be a true violation of the basic guarantees of the Constitutional Democratic State.
The dangers the decree can present to democracy can be compared to the excess of power sometimes attributed to a president that is, though, democratically elected.
The movie “Vice”, of Adam McKay, presents the old desire of Dick Cheney (chief of staff of Gerald Ford, defense secretary of George H. W. Bush and vice-president of George W. Bush) that could prevail in the United States the theory of the unitary executive. According to such theory, the president would encompass in great length the federal administration, avoiding, by this way, that the legislative branch could exercise major functions of accountability.
That theory had its peak in the defense that the jurist John Yoo made of diverse powers president George W. Bush during the period following the 9/11 in 2001. It is in this context that authors such as Ellen Kennedy debate the comparisons between the crises in Germany in the 1920s and the increase of executive branch competencies, mainly through the thought of the German Carl Schmitt. The executive expansion included, in the U.S., the power to use “enhanced interrogation techniques”, an euphemism for torture, and the power to issue executive orders (similar to Brazilian decrees), a practice that has grown from then on.
The Decree 9.785/2019 is another symptom of preoccupation concerning the authoritarian predispositions of Bolsonaro’s government. Beyond stimulating violence and granting in an unrestrained fashion to unaccountable people the power to solve conflicts with guns, he demonstrates the incapacity of observing the constitutional and institutional requirements that work to any president.
The problem becomes even more salient specially when the president himself diffuses the idea that he was supposedly a “God’s envoy” or when he stimulates rallies in his support and in prejudice of the National Congress stating that the problem in Brazil is the “political class”. Taking it into account, who would be to responsible to oversee him?
The resistance to complying with the limits of presidential prerogatives, overstepping them to undermine the legislative competencies of the elected National Congress, indicates a danger to the separation of powers and to the role of mutual supervision between them, guarantees that are basic for the Constitutional Democratic State. For someone that avoids at the maximum the legislative debate, the decree issued on the May 7th 2019 is another fruit of the desperate attempt to demonstrate efficiency presenting rushed and unreflective solutions the pose risks to Brazilian democracy.
By Emilio Peluso Neder Meyer¹ and Ana Carolina Rezende Oliveira²
Read more (articles in Portuguese):
1 Professor at Federal University of Minas Gerais (UFMG). Coordinator at Study Center on Transitional Justice (CJT/UFMG).
2 PhD candidate at Federal University of Minas Gerais (UFMG). Researcher at Study Center on Transitional Justice (CJT/UFMG).