Brazil’s New Government: Risks to Constitutional Democracy

–Antonio Moreira Maués, Federal University of Pará

With the election of Jair Bolsonaro as President, Brazil definitively joined the list of countries in which constitutional democracy is in danger. Although the 1988 Constitution had marked the transition to democracy, and had functioned decently for over two decades, the system  has been under serious strain since the re-election of Dilma Rousseff in 2014, when the opposition launched an immediate campaign for her impeachment. This political battle ended in August 2016, when the Senate decided that Rousseff was guilty of the charges of breaking budget laws, and replaced her with Vice-President Michel Temer.

Despite the fact that the impeachment trial followed the legal procedures, the removal decision was highly contested and criticized as non-democratic. The  opposition, which had a majority in both houses of the Congress, was accused of undermining the presidential election to gain power. Indeed, just a year later, the lower house refused to open an impeachment process for bribery charges against President Temer, even though it was requested by the Head of the Federal Public Prosecution.

Regardless of the evaluation of Rousseff’s impeachment, these events demonstrated that constitutional rules in Brazil are no longer channeling political conflict. In the midst of serious economic recession, huge corruption scandals and increasing levels of criminality, the lack of agreement between political agents about the rules of the game has put democracy into crisis.

This scenario took a turn for the worse with the election of Jair Bolsonaro, a long-time congressional representative of the State of Rio de Janeiro, who was virtually unknown across the country before the beginning of the presidential race.  During his political career, Bolsonaro, a former army captain, was mostly known for his defense of the interests of the military, his defense of the military dictatorship, and his constant speeches against minorities and women’s rights.  In a very unusual campaign, marked by the stabbing of Bolsonaro at a rally and the imprisonment of ex-president Lula da Silva, the far-right candidate used highly authoritarian discourse to convince the voters that only he could eliminate the old and corrupt political class.

The Brazilian election attracted a good deal of international attention, as Bolsonaro’s campaign could easily be compared with other successful right-wing populists. It was no accident that his campaign received the support of former Trump advisor Steve Bannon, and that Hungary’s Prime Minister, Viktor Orbán, attended Bolsonaro’s inauguration.

The beginning of his term demands a close analysis of the threats that it represents. In a recent book, Ginsburg and Huq[1] identify two discrete risks to constitutional democracies: “authoritarian collapse” and “democratic erosion”. Arguing that erosion is the more prominent threat in our era, they identify a five-part script :

a) the use of constitutional amendments to disadvantage or marginalize political opposition and deliberative pluralism;

b) the elimination of institutional checks that limit misuse of power by the government;

c) the centralization and politicization of executive power, leading to a reduction of bureaucracy’s capacity to constrain elected officials;

d) the contraction or distortion of a shared public sphere in which rights of speech and association can be exercised; and

e) the elimination of political competition that makes alternation in power a real possibility.

The first month of Bolsonaro administration provides examples of at least two of these steps in the tragedy. On his very first day in office, the President signed an executive order with force of law (Medida Provisória 870/19) to reorganize the executive departments of the federal government and created a strong Department of Government, which will have the competence to monitor the activities of non-governmental organizations. This same Department will be responsible for advising the President on political affairs and for developing and promoting his communications strategy. The order also eliminated many executive departments, including the Department of Labor and the Department of Urban Development. More than simply a reform guided by efficiency goals, the choices made by the administration reveal its intention to reduce government intervention in those areas where a stable bureaucracy can implement policies that conflict with Bolsonaro’s agenda. This politicization of the executive can also be identified in many of the President’s appointments: several of his department heads represent a risk to the advancement of the mission they are supposed to advance. For example, he chose a conservative evangelist as Secretary of Human Rights, and appointed an agribusiness leader as Secretary of Agriculture, who has now the competence to recognize and demarcate the territories of people of indigenous or African descent.  These moves both clearly mark the consolidation of executive power and the undermining of bureaucracy governed by the rule of law.

Bolsonaro has also taken steps to shape the public sphere in anti-democratic ways. In another executive order (Decreto 9.690/2019), the new government changed the rules about access to public documents, so as to delegate to a large number of officials the competence to decide which records must be protected from disclosure. This measure increases the risks of manipulation of government secrecy classifications, and may reduce the quality of the information that is released to the public.  In addition,  it is worth noting that the President and many members of his government continue to use the campaign’s divisive discourse against the opposition and part of the media. This has already had consequences. For example, because of death threats made by Bolsonaro’s supporters, the gay congressman Jean Wyllys decided not to assume his seat and went into exile.

In just a few weeks, Brazil’s new government has shown some of its intentions. To avoid the rest of the script of constitutional erosion playing out, it is time for Brazil’s institutions to step up and to ensure that checks and balances are reinforced. 

Suggested citation: Antonio Moreira Maués, Brazil’s New Government: Risks to Constitutional Democracy, Int’l J. Const. L. Blog, Feb. 27, 2019, at: http://www.iconnectblog.com/2019/02/brazils-new-government-risks-to-constitutional-democracy/

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[1] Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (The University of Chicago Press, 2018).