A recurring trend in comparative constitutional law is the emerging populism, which, in its various forms, extends to places and contexts as diverse as the United States, Poland, Turkey, Hungary, the Philippines, Latin America and so forth. Brazil, which is experiencing one of its most long-lasting political crises in recent history and whose social, economic, and political landscape could bolster similar avenues, is however facing a distinct sort of phenomenon. Though populism may pose a threat to Brazilian democracy, especially in a context of widespread political disaffection and a lack of trust in political parties, Brazil’s contemporary democratic downturn seems to be grounded in more entrenched practices that have long co-existed with its gradual process of democratization and which are now in direct clash with democracy itself. The political system, which has long been “skewed toward the representation of elite interests,” is now showing its claws, challenging the democratic achievements of the last decades. Populism may be knocking on the door, but it is the fear of the people that is unleashing the demons of Brazilian constitutionalism.
The Brazilian political system as it has been historically designed and operated in practice is being challenged because of its inability to dialogue with civil society. Amid a deep disbelief in the political institutions and a widespread feeling of powerlessness in society, Brazilian institutions, in general, and the political class, in particular, have adapted themselves to make use of some antidemocratic practices that subvert the very idea of political representation. This situation is aggravated by the fact that inequality and a lack of empowerment of socially marginalized groups, which are still significant in Brazilian society, also jeopardize the sense of political representation. Although these characteristics have long shaped how the political class interacts with society, the current political crisis has intensified the visibility of the gap separating one from the other, and, more importantly, how the political class has strategically acted to fend off any effective popular participation affecting its status quo.
President Michel Temer, who came to power after President Dilma Rousseff’s traumatic impeachment in August 2016, perfectly depicts this scenario of a political class that has made use of distinct tools to defend itself from any structural change to its status quo. Now that scandals involving the President and his cabinet and allies are popping up on a daily basis – the last one was a recording implicating him in a bribery scandal, which has led to a criminal investigation –, it has become clearer that the Brazilian political system has been framed to prevent the people from participating in the political arena. It is thereby rooted in a more elitist and subtle manipulation, whereby political elites entrench themselves against the very people they fear the most.
First of all, it is important to take into consideration some of the facts that compose the background of contemporary Brazilian political context. The extremely unpopular government of President Michel Temer holds power despite its record low approval rating (which was between 4% and 9% by the end of April) and the criminal investigation that is conducted against him by the Attorney-General in the Supreme Court. This government continues to push the legislative deliberations on the social security and labor reforms, which are strongly rejected by the vast majority of the population, without any serious debate with society whatsoever. But the clearer example of how political elites feel about people engaging in decision-making lies in the fact that the core of the coalition supporting the government in Congress, facing the possibility of an ousting of the President on account of that criminal investigation, deeply opposes a proposed constitutional amendment aimed to modify section 1 of article 81 of the Constitution. This provision states that the vacancy of both the Presidency and the Vice-Presidency in the last two years of the President’s tenure shall be filled by Congress through an indirect election. It is worth noting that the amendment intended to alter the Constitution to convoke a direct election in case of vacancy during the first three years of a presidential term is strongly supported by the population.
In a recent column published in the Brazilian newspaper Folha de S. Paulo titled Cinism is a Form of Rationality, Vladimir Safatle, professor of philosophy at the University of São Paulo, concluded that, “what is missing in Brazil is a power that fears the people.” His argument is that Brazilians, in turbulent moments such as the ongoing crisis, do not confront their political elites – they don’t “bring powerholders to the guillotine or to the gallows,” as he puts it. Rather, they submit themselves “to a power that does not demand any trust whatsoever (…) as if it were possible to keep living by forgetting that the power does exist.” Evidently, the “fear” that Safatle finds to be missing (political elites not fearing to be ousted by an enraged population) is directly related to – and even possible because of – the other “fear” aforementioned (political elites fear that the people could decide differently and, for that reason, the population should be kept in check).
“Fear,” in its both aspects, is part of Brazilian politics nowadays. Safatle’s words portray the disillusionment that has followed a chain of events that have put the Presidency on the brink of collapse. Notwithstanding the serious evidences of corruption and felonies against President Temer, his fate seems to go in another direction. Instead of massive popular protests – a Brazilian routine since 2013, especially when Dilma Rousseff was still President and the opposition demanded her impeachment – an unexpected calmness and inaction dominated the masses in the aftermath of the days in which the bribery scandal involving the President came to light. In the political realm, bigwigs in Congress have played a dual strategy: while seemingly condemning President Temer’s alleged misdeeds, they have rearranged their support and leverage to obtain more benefits in any future bargaining. The role played by the Brazilian Social Democratic Party (PSDB) is telling: from an active player in the impeachment trial of President Rousseff and a major rhetorical sponsor of ethics in politics, it keeps supporting President Temer despite the criminal accusations and refuses to conduct any investigation against its chairman, Senator Aécio Neves, who is also accused of bribery and other misconduct and whose mandate was thereby suspended by the Supreme Court. In fact, no major Brazilian political party has taken any effective measures to punish members who allegedly committed crimes.
Not even the judiciary has emerged unscathed from these events. If the Supreme Court seems to be increasingly behaving in a politicized manner, now the Superior Electoral Court, in a decision delivered on June 9, 2017, is following suit. Despite massive evidence of wrongdoings in the 2014 General Election, the Court, by a 4-3 majority, opted to disregard them and acquitted the coalition that elected former President Dilma Rousseff and then Vice-President Michel Temer. If the ruling were against the coalition, President Michel Temer could have been removed from office. It was a massive blow to the Brazilians who placed their hopes in the judiciary as a way out of the political spectrum to set a new standard of political behavior. Even though the Court attempted to bring a technical argument to avoid examining the whole body of evidence, its message was clear, as stated by its Chief Judge, Gilmar Mendes: “You don’t remove a president whenever you please,” an argument whose political bias speaks for itself.
There is a paradox in all these events, which seem to point to a sort of democratic decay in Brazil. More than an “incremental degradation of the structures and substance of liberal constitutional democracy”, as Tom Daly defines it, Brazil is being challenged in its very capacity to deal with the “fears” that have long haunted Brazilian constitutional culture. The crisis opened the Pandora’s box that has hidden the fact that Brazilian democratic institutions, while coming out from a constitutional moment of popular participation and engagement, are still very fearful of the people they should represent. At least now, more than ever before, the demons of Brazilian democracy are being revealed. The question is whether they will be defeated.
Suggested citation: Juliano Zaiden Benvindo & Fernando José Gonçalves Acunha, Brazilian Democratic Decay and the Fear of the People, Int’l J. Const. L. Blog, June 24, 2017, at: http://www.iconnectblog.com/2017/06/brazilian-democratic-decay-and-the-fear-of-the-people/
 See Fernando José Gonçalves Acunha and Juliano Zaiden Benvindo. Democratic Decay in Brazil and the New Global Populism, Blog of the IACL, AIDC, June 6, 2017, at: https://iacl-aidc-blog.org/2017/06/06/democratic-decay-in-brazil-and-the-new-global-populism/.
 Frances Hagopian, Democracy by Undemocratic Means? Elites, Political Parties, and Regime Transition in Brazil, 23. Comp. Pol. Stud. 147. 164 (1990) .
 See Juliano Zaiden Benvindo, “Constitutional Dismemberment” and Political Crisis in Brazil: Populism in Sight? Int’l J. Const. L. Blog, May 6, 2017, at: http://www.iconnectblog.com/2017/05/constitutional-dismemberment-and-political-crisis-in-brazil-populism-in-sight/
 See Marcello Baquero, Cultura Política Participativa e Desconsolidação Democrática: Reflexões sobre o Brasil Contemporâneo, 15 São Paulo em Perspectiva 98, 98 (2001).
 See Luis Felipe Miguel, Representação Política em 3-D: Elementos para uma Teoria Ampliada da Representação Política, 51 Revista Brasileira de Ciências Sociais 123, 136 (2003).
 See Juliano Zaiden Benvindo, Preservationist Constitutional Amendments and the Rise of Antipolitics in Brazil, Int’l J. Const. L. Blog, Oct. 26, 2016, at: http://www.iconnectblog.com/2016/10/preservationist-constitutional-amendments-and-the-ris-of-antipolitics-in-brazil/
 See Juliano Zaiden Benvindo, Brazil’s Increasingly Politicized Supreme Court, Int’l J. Const. L. Blog, Feb. 16, 2017, at: http://www.iconnectblog.com/2017/02/brazils-increasingly-politicized-supreme-court/
 Tom Gerald Daly, Democratic Decay in ‘Keystone’ Democracies: The Real Threat to Global Constitutionalism? Int’l J. Const. L., May 10, 2017, at: http://www.iconnectblog.com/2017/05/democratic-decay-in-keystone-democracies-the-real-threat-to-global-constitutionalism-i-connect-column/