INTRODUCTION: SOME CAUTIONARY REMARKS ABOUT THE BRAZILIAN POLITICAL SYSTEM
There is a general perception that Latin America’s political environment is structurally dysfunctional, with plenty of incentives for graft and deference toward private interests instead of the common good.
Often, such a diagnosis comes with the conclusion that the legislative power is practically irrelevant and is basically there to endorse the president’s agenda, with little capacity to seriously act as an effective check on presidential powers. This picture becomes even more dramatic because political scientists and constitutional lawyers have also historically depicted Latin America as a haven for strong presidents,[490] a region whose common past is there to prove that, with such an institutional arrangement, democracy has been the exception while dictatorships, in their distinct shapes and magnitudes, have prevailed. Institutional design leading to strong presidents and weak legislatures and constitutional courts is therefore the ideal scenario for transforming the rule of law into a subverted concept with little connection to reality. Adding to this context the dire numbers of social inequality, the authoritarian mindset and the various consequences thereof, the upshot is that the political system has long been strategically structured not to effectively change the reality: it has kept historical privileges and benefits to certain elites virtually untouched, while giving the false impression that it is working to gradually provide the population with some expected gains from a democratic society.There is a lot of truth in such statements, but there is also a lot of simplification, generalisation, and many stereotypes. They simplify the reality, because they assume beforehand that institutional design, although affecting how constitutionalism, institutions and individuals behave and operate in such a reality,[491] delivers more than it can, while perhaps placing too much emphasis on the path dependence argument:[492] because Latin American has been historically underdeveloped and its institutions have behaved extractively and not inclusively,[493] it is doomed to continuously repeat the errors of the past.
They generalise Latin America as if it were a unique and homogeneous reality, when it has become increasingly diversified over the years despite the common origins and connections. Indeed, as we have argued elsewhere, ?it is long past time to move beyond the conventional wisdom that there exists a one-size-fits-all “Latin American constitutionalism”’,[494] an argument that evidently extends to its several political systems. Finally, they reproduce stereotypes normally associated with the so-called ?global south’,[495] a concept that explains very little and stigmatises even further variables that, when properly examined, may seriously challenge such characterisations of the region and reveal unexpected scenarios. In this regard, it is worth recalling Adam Przeworski’s ?culture of lament’[496] associated with the continuous emphasis on Latin America’s institutional deficiency, whereas, for him, ?there is absolutely no reason to think that horizontal accountability of the executive is less tight in Latin America than in “consolidated” democracies’,[497] and, to state more broadly, ?[he is] skeptical that the high degree of inequality and prevalence of poverty in Latin America are due to the weakness of accountability, electoral, horizontal, or social’.[498]Interesting examples contrasting with those preconceptions include studies that stress that Latin America’s political systems are not necessarily designed around strong and unchecked presidents. Scott Morgenstern argues, in this regard, that if Latin America’s legislatures ?may not take the most prominent role in the policy process, democratic politics revolve around their most representative bodies’.[499] Cheibub, Elkins and Ginsburg, in turn, state that a constitutional design leading to strong presidents is not necessarily bad per se: ?... prima facie..
democracy is not incompatible with expanded executive lawmaking...
As a normative matter, then, we believe the Latin American presidential pattern is one to be celebrated rather than condemned’.11 The same reasoning applies to courts, which will be further explored in the next chapter. The political system has been steadily more affected by the functioning and expanded powers of Latin American constitutional courts: ?this blend of more insulation from political pressure and a growing capacity to influence policy is considerably greater than what existed in the recent past’.[500] [501] Therefore, despite the common origins and the various connections, there is no single narrative that could correctly portray the diversely rich political developments of the region.[502]Latin America’s political systems raise significant analytical challenges but, at the same time, offer a myriad of experiences that enrich comparative political and constitutional studies. Their constitutional histories, with over 200 years of political and constitutional breakdowns[503] and transitions from dictatorships to democracies and vice-versa, have an abundance of examples that certainly help explain some of the phenomena that the world is currently enduring, such as populisms,[504] increasing polarisation[505] and rising inequality.[506] Yet, although we have come a long way, particularly in view of social inequality and the still widespread authoritarian mindset,[507] from the 1980s onwards, most Latin American countries have undergone a process of consolidation of their democratic institutions and adopted strategies to cope with potential instabilities, such as more robust constitutional designs, stronger constitutional courts, a set of control and accountability agencies and mechanisms for popular engagement in political affairs.[508] Understanding Latin America is thus an immersion in the paradox of development toward the future amidst the permanent and stubborn calls from the past, where democracy and authoritarianism clash with each other on various grounds, but also where the degree of such paradoxes and clashes is not linear and has been reshaped over the years.
Brazil’s political system is part of this realm of paradoxes and clashes that have marked Latin America, and, as such, any analysis of how its political system deals with the rule of law should be followed by a cautionary tale of what can be overlooked when simplification, generalisation, and stereotypes dominate the discussion. The nuances of the Brazilian political system are not easily understood unless typical preconceptions are confronted with a reality that can reveal unlikely and unexpected outcomes, such as strong presidents who can rapidly become weak and constrained depending on the behaviours of other political and legal players, the fragmented and multiparty political system that can act as an effective check on the executive power[509] or the Supreme Court that can strategically make use of its dysfunctionalities to both position itself as a powerful political player and aggrandise itself as the final check on the other branches of power.[510] These and other particularities show much of how the political system understands its role under a framework that sometimes challenges the rule of law, but which also aims to comply, at least apparently, with the rule of law.
More specifically, the Brazilian political system cannot be easily examined according to the binary stability/instability that has been a mark of Latin American studies, but rather as one in which crises affecting presidents, at least since redemocratisation in 1985, have led to countless interpretations of the very meaning of instability. Presidential impeachments, for instance, which have since then taken place twice (Fernando Collor de Mello, in 1992, and Dilma Rousseff, in 2016), have been assessed as either part of the game, and thus as a constitutionally reactive stabilisation mechanism of a presidential regime,[511] or, on the other hand, as a contemporary form of coup d’etat that, despite being a constitutional mechanism, goes against the rule of law more sharply.[512]
Brazil is also a compelling case of a political framework whereby governance may reasonably function despite significant political fragmentation in Congress.
Unlike distinct analyses that normally interpret strong presidentialisms as well as multiparty systems as reasons for institutional instability,[513] governance, at least up until quite recently, could be preserved, even if flawed in many respects. Despite the increasing fragmentation of the Brazilian party system, governments could, for most of the democratic years, build coalitions and pass their agenda in Congress.[514] Even if somewhat optimistically, Marcus Andre Melo and Carlos Pereira dedicated a seminal book to justify why ?Brazil has been the paradigmatic case of successful multiparty presidential democracy’.[515] Along with Chile, they both portrayed Brazil as a presidential country whose institutional design should be examined as a counter-example to many preconceptions related to multiparty presidential systems: ?Chile and Brazil have emerged as the successful models for governance in Latin American region. And both countries are multiparty presidential democracies whose presidents are among the strongest in the region’.[516] Most recently, Fernando Limongi and Angelina Cheibub Figueiredo focused on Brazil’s political crisis and concluded that, even though political coalitions and corruption ?coexist... there is a huge distance from coexistence and causality’ and that ?the crisis that the country is enduring has little to do with institutional design’.[517]In addition, political and constitutional change in Latin America - and particularly in Brazil - can sometimes be so intense and deeply unexpected that bold and conclusive statements on stability and instability can rapidly be disputed. For example, in 2013, when Melo’s and Pereira’s book was published, Brazil would experience one of its most significant and consequential popular protests in recent history - one that would be a turning point in Brazilian politics and prompt the beginning of a dramatic backlash against the political class.[518] What had previously been a case of fairly functional governance and rather stable political performance turned itself into a series of acts and bargains that would not only lead to the impeachment of a president, but also lay the groundwork for a rising politician, then elected president in a political campaign that had no precedent whatsoever in Brazilian history.
This scenario would baffle political scientists and constitutional lawyers in Brazil and elsewhere, and it certainly led to a deep reassessment of the many markers they usually adopt to value the quality and resilience of such a country’s democracy.Therefore, this chapter adopts a cautionary approach when examining the rule of law and the Brazilian political system. Brazil, like other Latin American countries, really deserves a thorough investigation of the variables and markers that are normally associated with the compliance of its institutions - and, in this chapter, of the political institutions - with the rule of law. The argument is not that that there is a unique and special Latin American constitutionalism, since it would also lead to the type of generalisation, simplification and stereotype that we aim to avoid. Nor does it seek to reveal, more specifically, the Brazilian uniqueness in a comparative perspective, as if it were not translatable into other contexts whatsoever. The purpose is merely to begin the investigation by assuming beforehand that, in such a rapidly changeable political environment, there is no argument that can be taken for granted, even if the years of democratic life have brought about some stabilisation of expectations and premises to evaluate how the rule of law performs in such a reality.
For argument’s sake, it will discuss the Brazilian ?coalition presidentialism’ by stressing whether Brazil features a strong presidentialism, introducing the main characteristics of such a political system, and discussing how party fragmentation and its oligarchical composition affect its compliance with the rule of law. It concludes by arguing that Brazil’s ?coalition presidentialism’ has been strongly reshaped, which, depending on how the political players behave in this new system, may probably lead the country’s political crisis to be ?normalised’ through preservation, accommodation and oblivion. ?It seems that the institutions that have governed Brazilian democracy for the past generation are likely to persist’, correctly argued Matthew Taylor.[519] This was, after all, Brazil’s political past, this has been Brazil’s political present, and this will possibly be Brazil’s political future.
II.