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Brazil and Lula: Between sovereignty, constituent power and might

There is nothing new about what is happening today in Brazil where President Dilma Roussef was impeached by the Senate and “Lula” da Silva, the former president who is aspiring once again to be elected president, is very soon to be put in jail. There is no novelty because other Latin American leaders have been removed from power in this way, violating popular sovereignty. This method is being applied, perhaps with greater finesse, throughout the rest of the world. Thus it was used in Iran – when the former president Mahmud Ahmadinejad tried to stand in the Presidential elections – and in France, where the candidacy of a former Prime Minister was blown to bits by a series of accusations and judicial proceedings taken against him only days of the Presidential Elections. In each of these instances, the Judicial System was manipulated to work against People’s sovereignty.

| Panama (Panama)
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The Supreme Court of Brazil has just rejected – by only one vote – the Habeas Corpus application which the former President Luis Inacio Lula da Silva had filed. It is quite possible that this decision may prevent this popular leader ever competing again for the Presidential office. Evidently what determined this outcome was a military threat that was already maintaining a state of siege and putting out the cogs to take power. But the Armed Forces have imposed themselves not just on the Supreme Court but also on the entire country.

Faced with this, it is necessary to clarify some concepts:

International Law recognizes that the sovereignty of states rests on two fundamental pillars:
- political independence; and
- territorial integrity.

Both prevent foreign interference in the internal affairs of states. The first is presented as the self-determination of the People, but the political constitutions of almost every states recognize that sovereignty (and therefore political self-determination) is a right that “lives in the heart of the people” although it may be the State and the Government that exercise them on behalf of the people.

For this reason, the United Nations recognizes the sovereignty of the People – not of States - over their natural resources. Similarly, it recognizes the right of these people to rebel when they are subjected to colonialism, neo-colonialism, apartheid and other degrading forms of domination.

Self-determination can be exercised by legal means that can be legitimate or illegitimate; by revolutionary means, that can be peaceful or violent.

Sovereignty - or rather, self-determination and territorial integrity - is usually given expression through elections, or that is, through the ballot. If these elections are transparent, then the power derived from them is legitimate. But when elections are prevented or are a charade, you have a rejection and denial of political self-determination and sovereignty of the People.

It follows then that powers which are based on elections can be illegitimate and legal at the same time. Power is legitimate when it represents the will of the self-determination of the People. It is illegitimate when obtained through fraud.

When Power is illegitimate, then it is our duty to reject it. This exercise of duty, which is an absolute must, even though it may prove a struggle, confers legitimacy on the means necessary to bring down a power that is in place, without elections or rigged voting.

In this case, it is the duty of the People to reject the power that while “legal” is illegitimate. Illegitimate power must be annulled so that the force exerted by the right to self-determination crushes “right of might” and so that the contradiction between legality and legitimacy is eliminated because it is legitimacy that produces legality and not the other way round.

The duty not to intervene in either the internal or external affairs of states extends to third states. Furthermore, it applies to powers existing within the state, the so-called Armed forces, the Church or the elites powers that are frequently considered emanations of the State. These powers, although legal in nature, are barred from taking action that prejudices or runs contrary to popular or national self-determination.

While the Armed Forces form part of the State, they lack legitimate power to prevent or frustrate the sovereignty of the people, which prevails over the sovereignty of the State.

What the Armed Forces can do, is to be allied to the People, to support them in their self-determination, given that the primary duty of the Armed Forces is to defend the sovereignty and national territory and it cannot take action that goes against sovereignty without committing high treason.

The People can and must harness the means necessary to stand up to the powers that oppose its self-determination.

Lula, therefore, does not lacks alternatives and must use them without fearing the word “revolution” and without rendering homage to an alleged “order”, that few respect because the concept implicit in our reflection is that, in the “constituent power”, it is the People who call the shots.

It was the constituent or revolutionary power, popular sovereignty which rescued President Hugo Chávez from the coup d’Etat of April 2002 in Venezuela; that saved by the skin of his teeth, the then President of Ecuador Rafael Correa in 2010 from a “soft coup” and what sustains – once again in Venezuela– Nicolas Maduro despite the coups of every type.

Thus, it was the lack of a sufficiently strong constituent power or a revolutionary power which prevented the following from being saved:
• Jacobo Arbenz in Guatemala (1954) faced with a military coup;
• Juan Bosch, in the Dominican Republic (1963), faced with a military coup;
• Salvador Allende, in Chile (1973), again confronted by a military coup.

More recently, in Central America, it was due to the lack of a constituent and revolutionary power that the “soft coups” (parliamentary and judicial in nature) could not be prevented; soft coups that expelled from the Presidency the following:
• Manuel Zelaya, in Honduras (2009);
• Fernando Lugo, in Paraguay (2012);
• Cristina Fernández de Kirchner, in Argentina (2015);
• Dilma Rousseff, in Brasil, (2016); and
• Salvador Nasralla, in Honduras, (2017). On the other hand it is on account of the constituent or revolutionary power that the Cuban revolution has been safeguarded, for half a century despite the economic embargo imposed by the United States.

Taking into account that the coup d’etats and other forms of applied interference against the people of Latin America have invariably been set up by the United States and by its allies (Israel and NATO) and signify a rupture in the international and constitutional order, these coups whether “soft” or hard, whether involving or not national or international armed forces constitute serious crimes against international law that will have to be considered as new crimes injurious of humanity.

As a consequence, the prosecution of the former President Lula, the intention to imprison him and block him returning to power by preventing him from standing in elections must be rejected and fought against as an attack against the sovereign people of Brazil and as a global offensive which must be condemned at all costs.

Translation
Anoosha Boralessa

Julio Yao Villalaz

Julio Yao Villalaz Analyste international et diplomate de carrière. Il fut professeur de relations internationales et de droit international, conseiller auprès du général Omar Torrijos, vice-président du Mouvement d’unité latino-américain et représentant de la République du Panama devant la Cour internationale de La Haye.

 
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