—João Vitor Cardoso, University of Chile Faculty of Law[1]
Introduction
On Saturday, March 28, a federal court in Rio de Janeiro banned the Brazilian government from disseminating propaganda against confinement measures aimed at controlling the coronavirus pandemic. The federal judge gave the government 24 hours to publish an official statement explaining that its “Brazil Cannot Stop” campaign does not adhere to scientific criteria and therefore cannot be followed. The campaign video encourages people not to stop their normal lives, despite a Health Ministry ordinance establishing sanctions for those who defy isolation orders. Based on the precaution principle applicable to the right to health (“in dubio pro salute“), the court also ordered people linked to the government to stop sharing or fomenting the spread of information that is not strictly founded on scientific evidence.
The context for thinking about such matters needs to be broad. As illustration, I mention two larger issues that concern critical thinkers interested in public law. The first deals with the problems of governance and accountability in the genetic age. For example, in Sheila Jasanoff’s account, as the questions that confront the public sphere become more complex, such as how to regulate the entities created by gene splicing, or how to manage the impacts of industrial biotechnology on agriculture, legal innovations are entangled with the “sovereignty of science.”[2] Jasanoff describes how law and biology “frame the possibilities, limits, rights, and responsibilities of being alive—most especially for the species we call human.”[3] As the philosopher puts it, “biological artifacts engage with and reshape our perception of rights and entitlements at many levels.”[4] Thus, “periods of significant change in the life sciences and technologies,” she argues, “should be seen as constitutional or, more precisely, bioconstitutional in their consequences.”[5]
A second cluster of concerns centers around the meaning of authoritarianism, as commonly defined in opposition to democratic constitutionalism, both described within the domain of traditional dichotomies: authoritarianism does propaganda,[6] while democracy is governed by reason;[7] authoritarianism needs complicity, while democracy only exists to the extent that it learns how to resist;[8] authoritarianism relies on constitutions, whereas democracy emphasizes constitutionalism. Posner and Vermeule have written extensively on how the administrative state has helped to create an educated elite whose members are politically engaged and help to check executive abuses, making a collapse into authoritarian rule less likely.[9] As these scholars point out, today’s demographic and economic conditions require more rapid adjustments in policy, and so induce an increase in executive power.[10] Accordingly, in times of rapid social change, the question of effectively overseeing this powerful executive becomes an important one. Whether considered against the backdrop of the “sovereignty of science” or the “administrative state”, the Brazil Cannot Stop campaign illustrates a clash of normative communities —one social, the other scientific—, which set off controversies on the judicial role in checking executive power and holding presidents accountable during the pandemic.
A brief understanding of Brazil’s political climate could be useful here. The idea of deconstructing the administrative state is intrinsic to right-wing populism. To borrow from Mark Tushnet, “deconstructing that state means eliminating intrusive regulations as comprehensively as possible. [11]” Since Jair Bolsonaro was elected, federal agencies have been under sabotage from within, as can be observed in his appointment of an officer with strong connections to agribusiness as the head of the country’s indigenous agency. Moreover, in last week’s address to the nation, citing his “past as an athlete,” the President said he would be unaffected by the coronavirus: “In the worst case, I would have a little cold.” By giving an informal tone to his statements —concerned with an “athletic” appearance— Bolsonaro is openly defying the health authorities recommendations, and thus reflecting an anti-science attitude. As Günter Frankenberg has argued, “the procedural and institutional dimension of informality allows authoritarian regimes to set up and rely on informal, clandestine networks (‘deep states’) and channels of patriarchal masculinity, which are perfectly represented by the military (…).”[12]
Built on Lies: Judicial Review in Pandemic Times
Article 196 of the 1988 democratic constitution affirms health as a right of the people and a duty of the state, “guaranteed by social and economic policies that reduce the risk of disease and other adversities and by universal and equal access to actions and services”. Hence, whenever an action or omission of the public authorities is construed as an unreasonable risk to health, it constitutes a direct violation of the constitutional text. Accordingly, the federal court of Rio de Janeiro understood that the systemic effects of the Brazil Cannot Stop campaign would make the incidence of health burdens far more dramatic for vulnerable groups. Thus, as the pandemic affects the elder and the poor disproportionately, the judge stated that the government’s campaign was likely to worsen health inequities. Moreover, the state attorney demanded a judicial notice to representatives of social media such as Facebook, Twitter, and YouTube, in order to impede posts concerning the campaign. The court decision established a fine of 100,000 Brazilian Reais for those who disseminate messages related to the Brazil Cannot Stop campaign.
The government denied the existence of the campaign and then excluded the videos from official channels, under the claim that they were “experimental.” Nonetheless, on Sunday, March 29, Bolsonaro posted videos of himself taken during a walking tour in Brasilia, in which the President encouraged an end to social distancing and isolation measures. Twitter almost immediately deleted the two tweets because they contained false or misleading information about coronavirus. The videos were also removed from Facebook and Instagram on Monday evening, for violating community standards. Therefore, Bolsonaro is facing a real challenge concerning the press, including the social media, that have developed virtual filters to his interventions, thus reactivating the knowledge creating and knowledge checking role of a free press.[13]
Finally, the court decision sheds light on the question of how much liability should be attributed to the President for deaths due to the coronavirus. Since Bolsonaro neglected the Health Ministry’s ordinance No. 356/2020, and the so-called Quarantine Act (Law 13.979/2020), the technical issue of legal doctrine that cannot be disentangled from broader questions about Presidential accountability is: would this be a proper case for unconstitutionality by omission? The answer to this question is no. It is the isolated action of the President what has come to be an aggravating agent of the pandemic, whereas the legislative and judicial branches, as well as several authorities within the federal executive, are adopting measures aimed at reducing its spread.
Therefore, in order to control Bolsonaro’s behavior, on March 31, the Brazilian Bar Association (OAB) brought a claim of non-compliance with a fundamental precept (an instrument of abstract review) to the Supreme Court (STF) in order to compel the President to comply with the protocols aimed at controlling the pandemic, in the sense of adopting measures of social isolation and non-interference in the activities of the Ministry of Health technicians. The OAB highlights that the pronouncements of a President, especially in an emergency situation, are not considered as floating in some kind of normative vacuum, “as empty words thrown to the winds,” and thus they cannot be built on lies. The events surrounding the pandemic in Brazil point to the urgent need for some means of effectively overseeing, influencing, and controlling Presidential behavior. Hence, the courts must perform their functions considering the growing concerns over the emergent “risky society,” with a corresponding impact on constitutional democracy.
Suggested citation: João Vitor Cardoso, The Collision between Bolsonaro and the Sovereignty of Science: The Courts Step In, Int’l J. Const. L. Blog, Apr. 9, 2020, at http://www.iconnectblog.com/2020/04/the-collision-between-bolsonaro-and-the-sovereignty-of-science-the-courts-step-in/
[1] The author thanks I-CONnect and David Landau for commenting on this piece’s draft and for the valuable insights, as well as the University of Chile for his PhD Scholarship.
[2] Sheila Jasanoff, Can Science Make Sense of Life? London: Polity Press, 2019, at 142.
[3] Sheila Jasanoff, Reframing Rights: bioconstitutionalism in the genetic age. Cambridge: The MIT Press, 2011, at 1.
[4] Id. at 13.
[5] Id. at 3.
[6] Günter Frankenberg, Authoritarian constitutionalism: coming to terms with modernity’s nightmares, In: Helena Alviar García and Günter Frankenberg (Eds.) Authoritarian Constitutionalism: comparative analysis and critique (2019).
[7] Sunstein defines authoritarian systems as those that justify government outcomes by reference to power or will rather than by reference to reasons. Sunstein, The Partial Constitution. Cambridge: Harvard University Press (1993).
[8] Norman W. Spaulding, States of authoritarianism in liberal democratic regimes, In: Helena Alviar García and Günter Frankenberg (Eds.) Authoritarian Constitutionalism: comparative analysis and critique (2019), at 272
[9] Eric Posner and Adrian Vermeule, Executive unbound: after the Madisonian republic, Oxford University Press (2011), at 201-2.
[10] Id. at 19.
[11] Mark Tushnet, Comparing Right-Wing and Left-Wing Populism, In: Mark A. Graber, Sanford Levinson, Mark Tushnet (Eds.) Constitutional Democracy in Crisis? Oxford University Press (2018).
[12] Frankenburg, supra note 6, at 15.
[13] At the Annual Conference of the International Society of Public Law (ICON•S) held at Santiago de Chile on 1-3 July 2019, Vicki Jackson has defined “knowledge and the institutions that produce and test it” as essential institutions to constitutional democracy, highlighting “the knowledge creating and knowledge checking role of a free press”.
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