Penal Fascism vs. Penal Populism

The government’s security agenda has stirred strong controversy. Some in the opposition have criticized it as “penal populism.” This is of course not the first time that the populist label has been used in a derogatory manner, but in this particular instance the mislabeling obscures the otherwise obvious fascist overtones of the government’s strategy to “pacify” the mobilized citizenry in an attempt to impose an already lost status quo ante.

From its origins in nineteenth-century Russia and the Unites States, to Latin America and Southern Europe, populist movements and leaders have appealed to a class-based conception of the people as a plebeian subject constructed against oligarchy. Attempting to represent the popular sectors, populism strives to satisfy the people’s immediate material demands and visit punishment on corrupt elites. Laws against looting, barricades, blocking traffic, labor strikes, and the use of face masks during protests against neoliberal policies are therefore clearly not “penal populism.” The criminalization of protest is not a demand emanating from the people — the top three are better pensions, wages, and health care— so it would be more accurate to understand these laws that disproportionately punish public disorder as fascistic legal adaptations that build on the doctrine of internal defense of the state to increase the repressive capacity of law enforcement against a mobilized citizenry demanding social change.

While the objective of penal fascism is to impose a legal, moral, and economic order through disproportionately harsh laws against internal enemies, thus undermining the protection of individual rights and due process, the objective of penal populism is to impose disproportionately harsh penalties on corrupt oligarchs through popular forms of justice — such as characterizing political corruption as a crime of treason with life imprisonment or death, and prosecuting cases of political corruption in popular courts to allow for the “venting” of indignation and resentment. According to Machiavelli, political trials in which corrupt oligarchs were tried by the people were the secret to the longevity of the Roman popular republic. While penal populism is today merely symbolic spectacle —a mannequin of the president was recently guillotined in the square— and frauds and collusion are lightly penalized with fines and ethics classes instead of prison time, legal fascism and oligarchic impunity appear to be taking root.

Fascism and the Internal Defense of the State

One of the most decisive legal innovations that allowed for the hegemony of fascism during the first half of the twentieth century was the establishment of a set of laws for the internal defense of the State against individuals with ‘“subversive” ideologies — mainly communists but also trade union leaders, socialists, and anarchists. The first law of this kind, promoting an “idealistic doctrine of the authoritarian state,” was passed in Italy in 1926 after an assassination attempt against Mussolini. As his Minister of Justice, fascist jurist Alfredo Rocco wrote, given that tradition embodies truths that must be preserved to prevent the destruction of the state, the penal code must reflect this new defensive doctrine and create strong protections for the “State, family, morality and the economy” against individual actions that could cause social change. The law punished as enemies of the state those who “committed or manifested the deliberate intention of committing subversive acts of the social, economic or national order” with exile, long prison sentences, and even capital punishment. Of the thousands of political prisoners in fascist Italy, perhaps the most famous was the communist Antonio Gramsci.

Chile adopted this fascist legal legacy first in the 1937 “Law for the Defense of the State” establishing severe punishments for disruptions to the social order, and then with the infamous “Law for the Permanent Defense of Democracy” passed in 1948, which outlawed the Communist Party, disenfranchised thousands of militants and community organizers, and limited the rights to assemble and strike. While the latter law was repealed in the late 1950s, the former was preserved, then perfected in 1958, and finally broadened during the Pinochet dictatorship when the number of crimes and penalties attached to them increased to target resistance to the regime and its neoliberal model.

Since Chile’s transition to democracy in 1990, the current Law for the Internal Security of the State (LES) has been applied more than a dozen times against Mapuche leaders struggling to reclaim indigenous lands and autonomy in the Araucanía region; a journalist who wrote on corruption in the judicial system; bus drivers and prison guards going on strike; protestors denouncing the increase of natural gas prices in Magallanes; and drivers of shared taxi services mobilizing in Santiago. More recently, the law was invoked to prosecute those involved in the uprising that began on October 18 in subway stations in Santiago. Professor Roberto Campos, accused of destroying a subway turnstile, was held in preventive detention in the High Security Prison while awaiting trial. He risk five years in prison.

The LES penalizes with prison time not only those who “destroy or disable” means of transportation but also those who “incite or induce subversion of public order or revolt,” punishing those who “meet, arrange or facilitate meetings” that conspire against the stability of the government, and those who propagate “in word or in writing” doctrines that “tend to destroy or alter the social order through violence.” Because any idea that promotes social change could be considered an incitement to the subversion of order, such laws in other countries —many of them passed in times of external war— have ceased to be applied or directly repealed. The Sedition Act in the United States, for example, passed in 1918 during World War I, penalized “disloyal language” against the government with up to twenty years in jail. Although the criminalization of political expressions was repealed two years later, the prohibition of any political agitation considered seditious remains in force under the Espionage Act. The jurisprudence emanating from the application of this law demonstrates that the violation of the right to free expression is inevitable when arbitrary power is given to the government to censor internal criticism. Those accused of crimes under the Espionage Act have been mostly union leaders, socialists, communist,s and anarchists — among the most famous are the union leader and candidate of the Socialist Party of America, Eugene Debs, and anarchist Emma Goldman.

The most dangerous article of the LES for protesters in Chile is the one that penalizes people who “incite, promote or encourage or in fact and by any means, destroy, disable or prevent free access to bridges, streets, roads or other similar public use goods.” The law is so broad that it could be applied to students who incite the evasion of the subway fare and to all protesters who mobilize peacefully every day on the streets, blocking traffic. The most disturbing thing is that the government coalition has been pushing to incorporate similar provisions into ordinary criminal law, seeking to further normalize these “exceptional” rules.

As part of the security agenda, the Senate’s Public Security Commission approved in general a bill that incorporates the crime of “public disorder” into the Criminal Code, imposing penalties of up to three years in prison for those who, “using a demonstration or public meeting,” paralyze or interrupt a public service of prime necessity, such as the subway, or throw stones, build barricades, or occupy private or public property. If these modifications are approved, high school students who participate in mass fare-evasion protests at subway stations, “frontline” protesters who make barricades and throw tear-gas bombs back to police to protect those who demonstrate peacefully from being repressed, and those who occupy a shopping mall as a form of protest, would risk prison sentences without the need for the invocation of the LES.

In addition to the criminalization of civil disobedience and mass mobilizations, the new law would also penalize looting in the context of social unrest with five to fifteen years in prison, make disregarding curfews (currently a misdemeanor) a criminal offense punishable by up to three years in prison, and allow for judges to suspend benefits to welfare recipients as soon as they are charged with “public disorder.” These new legal provisions would impose not only disproportionate punishments but also target the poor by giving judges the arbitrary power to suspend social benefits at the beginning of the investigation process. A recent decision by the Prosecutor’s office not to pursue prison sentences for people with clean records who were arrested while looting supermarkets on October 18 seems an indication that, this time, the Public Ministry is not willing to apply the LES, even if the government demands it.

Hooded Class Resistance

Only six weeks before the popular uprising of October 18, senators of the government coalition along with members of the opposition presented the so-called anti-hood law that seeks to penalize anyone who “intentionally covers their face in order to hide their identity, using hoods, scarves or other similar elements” while participating in actions that “seriously disturb public tranquility.” Since illegal detentions have been commonplace and the use of masks to avoid breathing toxic tear gas is absolutely necessary, this anti-hood law would legalize the arrest of peaceful protesters and ensure their conviction.

The first Anti-Mask Law in 1845 was used in New York against small tenant farmers protesting extractive feudal contracts and the complicity of the state in the prosecution of debtors. After decades of legislative inaction, the tenants organized to resist the sheriffs who tried to collect debts and evict them. Disguising themselves as “calico Indians,” farmers successfully resisted for five years the oligarchy’s efforts to throw them out of the lands they had occupied for generations. Anti-rent associations sprung up throughout the state and in 1844 an Anti-Rent Equal Rights Party was created to support candidates who favored land reform. Instead of yielding to popular demands, Governor William Seward doubled down by supporting a law making it a felony to appear in disguise, which unleashed violent clashes between masked tenant farmers and law enforcement officials. Brutal repression and controversial trials prompted New Yorkers ultimately to vote for a constituent convention to resolve the social struggle. The resulting 1846 Constitution abolished feudal tenure, eliminating the most oppressive contracts, but did not address the central issue of land reform. While anti-mask laws have been used in many states to suppress hooded KKK members from marching — and thus to protect African Americans from public intimidation by white supremacists — the more recent use of the law against Occupy Wall Street protestors reaffirms the norm’s oligarchic origins aimed at criminalizing protest to preserve the existing socioeconomic order.

The repression of class-based politics was also the basis of the 1922 Emergency Regulations Ordinance that banned the use of face masks in Hong Kong. The British colonial government applied it to repress a protracted labor strike in the ports in which Chinese seamen and port workers paralyzed shipping and docking activities to protest poverty wages and a racist pay scale. The Ordinance was used again in 1967 to suppress labor strikes and pro-Communist riots, and more recently this past October against pro-democracy protests. The revamped ban penalizes the use of masks in the context of protest — except for professional, religious, or health reasons — with up to one year in prison and a fine of $3,200. Since then the courts have declared it unconstitutional and the police has vowed not to enforce it.

Not only in authoritarian China have illiberal anti-mask laws been passed. After more than three months of protests by the gilets jaunes, this past February France passed a ban on face covering for anyone participating in demonstrations. This new repressive law also has the clear aim to criminalize protest since full-face veils in public areas have been banned since 2011 — France is a pioneer on targeted legislation against Muslim minorities in the European Union. With the new politically motivated anti-mask law that seeks to suppress the uprising of the popular classes against austerity measures promoted by the Macron government, protesters risk one year in prison and a $17,000 fine.

Legalizing Repression

The Chilean government’s agenda to ensure the protection of the prevailing neoliberal order incorporates fascist-style laws to deter future popular uprisings and give law enforcement the legal tools to legitimize their brutal repression. The latest bill sent by President Piñera — which seeks to exempt police from criminal liability if they shoot protestors in self-defense — is particularly revealing of this trend. If approved, police could violently repress a peaceful protest, as it regularly does, wait for protesters to defend themselves and then shoot to kill with impunity in self-defense, violating individual freedoms and due process.

Despite the “fundamentally repressive way” in which the government has handled the peaceful protest and the grave human rights violations reported by Amnesty International, Human Rights Watch, and the UN, fascist legal adaptations that seek to criminalize protest continue to progress in Congress. The government’s attempt to subdue the mobilizations in which Chileans “woke up” from the slumber of elite domination and went to the streets en masse to claim dignity and perform their own emancipation, must be resisted. If moves toward fascism are not properly denounced and the proposed amendments to the Criminal Code end up being approved, arbitrary detentions and human rights violations could become a new normal in Chilean society.