THE DESTABILISING FACTORS OF THE RULE OF LAW IN BRAZIL

Brazil’s current worrying landscape is nothing other than the outbreak of a set of entangled sociological and institutional features that, for a long time, could function with some stability at the expense of �normalising’ their potential conflicts.

The sociological features - notably the social inequality^[1311] and the difficulties in challenging the longstanding authoritarian mindset in society^[1312] - are mutually reinforcing and provide positive feedback that will resist any change to the status quo. Moreover, the �normalisation’ of such social relations anchored in inequality and authoritarianism conceals their disruptive effect in society. As Paul Pierson argues, �positive feedback over time may simultaneously increase asymmetries of power and, paradoxically, render power relation less visible’.^[1313] The idea that life goes on despite all the wrongs that have plagued Brazilian democracy is clearly visible in narratives such as the myth of �racial democracy’,^[1314] the conformism with the high levels of violence^[1315] and, more recently, the normal­isation of the excessive number of deaths due to COVID-19, not to say the brazen disrespect for the victims of such a tragedy.

Backlashes can also be found in the resistance to proposals that target a fairer tax system, attack entrenched clientelism in the political realm, promote a more inclusive system of justice, or extend social benefits to underprivileged people. By the same token, any movement whose goal is to tackle the past atrocities committed by the military during the civilian-military dictatorship (1964-85), strengthen the civilian control over the military, or even transform the violent, unaccountable and inefficient police,^[1316] is met with fierce opposition from leading sectors of society. A �normalised’ society that sees itself threatened can lead to someone like Bolsonaro, whose election is not merely the result of a resentful people but also expresses the �rationality of fear’ by those who will do whatever it takes, even support extra-constitutional actions, to protect themselves.^[1317]

On the other hand, the institutional and legal frameworks follow a pattern that, in some ways, constructs, reproduces and consolidates this mutual relationship between inequality and authoritarianism. The �coalition presiden- tialism’ that could offer reasonable governance and stability^[1318] has seen such a capacity dwindle through increasing party fragmentation and decreasing party institutionalisation in Congress, leading to pork-barrel politics, clientelism and corruption. The judiciary’s growing politicisation and lack of accountability have furthered its own non-observance of due process of law as a basic principle of fairness, thus weakening its capacity to combat threats to the rule of law and constitutionalism.

Mechanisms to combat corruption and foster greater transparency and accountability, which saw some significant progress at least until 2016,^[1320] have more recently provoked a furious backlash during the Michel Temer and Jair Bolsonaro administrations, in a clear response to an institutional system that was disturbing that �normalised’ sociological pattern. That institutional frame­work, while advancing in accountability, transparency and punishment, could not �short-circuit the rationality of fear mechanism’.^[1321] Instead, particularly with the participation of the judiciary in an already troublesome political scenario, the stakes of politics increased, not diminished, thereby leading to greater instability.^[1322] The other consequence is that the �institutional equilibrium’^[1323] that fosters the commitment of political forces to follow the law has become more precarious, and their ability to coordinate interests and constrain the central power turned out to be less efficient. The rule of law has then weakened.

Brazil has thus endured the destabilisation of such an �institutional equi­librium’. It is a democracy, though a flawed one that is passing through serious junctures challenging its resilience. These junctures are symptoms of longstand­ing causes that have impaired the consolidation of the rule of law in Brazil, now featuring new shapes and stronger disruptive capacities. They are expressions of sociological and institutional features such as the growing polarisation in soci­ety and politics and a dysfunctional institutional framework. While polarisation and the institutional dysfunctionalities could be �normalised’ and their potential conflicts avoided, there was some stability.

A. The Growing Polarisation in Society and Politics

The growing polarisation in society and politics is certainly the Achilles heel of such a balance. It has been increasingly stimulated by new forms of information and disinformation and is, therefore, more open to external inputs. The damage that a divided public can cause to democracy is considerable and is possibly the most impactful variable for a democratic crisis.^[1324] Brazil’s recent developments - similar to various other examples elsewhere^[1325] - are testimony of the deleterious effect of social and political polarisation. New insights on the effects of the inter­net and social media on polarisation have popped up across various academic fields, some clearly pointing out that they are catalysers of polarisation^[1326] and others arguing less emphatically so.^[1327] However, they can be powerful framers of public opinion especially during electoral moments, as happened during the 2018 elections in Brazil. Emilio Peluso Meyer, for example, �[diagnosed] how Brazilian social-democratic constitutionalism has been affected by the digital age’^[1328] through a series of events during and after Bolsonaro’s election as President, and Wendy Hunter and Timothy J Power examined the �strate­gic use of social media’ as a key factor for Brazil’s democratic backlash under Bolsonaro.^[1329] The impacts on social and political polarisation in Brazil look undeniable.

However, political and social polarisation in Brazil is naturally marked by its rampant social inequality, first because it creates a divide among distinct social groups (Blacks and whites, poor and rich, women and men, etc) and also because it affects the institutional capacity for coordination, since they fail to deliver incentives for empowering individuals to defend their rights.^[1330] In such a scenario of lack of coordination, disinformation becomes a much more effec­tive tool of coordination than institutions themselves.

B. The Disarrangement of the Political and Judicial Systems

The �normalisation’ was affected by the disarrangement of the political and judicial systems. �Operation Car Wash’ and also some other probes before it^[1331] yielded a tectonic shift in the �institutional equilibrium’ that had until then prevailed in the relationship between the political and judicial realms. The still entrenched mechanisms of corruption that have long plagued the political system, in a form of clientelism that has shaped the functioning and funding of political parties and politicians for years,^[1332] felt threatened by new forms of institutional and social oversight and accountability mechanisms.^[1333] It also needed to readapt itself to a broader, though increasingly uncoordinated, diffu­sion of political clout as the political system became more fragmented and less institutionalised.^[1334]

The judiciary, on the other hand, saw itself as empowered by the moral duty of pushing history into a sort of �illuminist role’,^[1335] which ended up blurring some necessary constraints on the politicisation of judicial discourses.

The Destabilising Factors of the Rule of Law in Brazil 203 in their decisions and the lack of deliberative performance.^[1343] The firewall between the murky waters of politics and the sought-after deontological principles of justice became even more fragile, �[destroying] the rational basis for a functional separation of powers justified by the different possibilities of access to certain kinds of reason’.^[1344]

Such a destruction meant that the �normalisation’ that had prevailed for so long by not encroaching on those clientelist behaviours in the political realm would be disrupted by a judiciary that seemed to be checking those powers at last, but not without also allowing itself to be corrupted by politics in this process. What could in principle seem like a positive development for the rule of law - after all the judiciary would be reaching privileged groups that have historically counted on �the high probability of their impunity’^[1345] - turned out to be a breach of the �institutional equilibrium’ that had functioned so far by �normalising’ some of those illegalities, sweeping them under the carpet as a needed �compromise’ to keep the political system stable. In the end, the political system was in tatters - Bolsonaro’s election is the most visible example of this^[1346] - but the judiciary was not far behind. After the judge presiding over �Operation Car Wash’, Sergio Moro, was declared partial by the Supreme Court in the cases involving former President Lula da Silva because of serious violations of due process of law,^[1347] the deleterious effects of high politicisation in the judici­ary could no longer be denied. Both the political and judicial realms mutually thrived on distrust.

C. A New �Equilibrium’?

Self-reinforcing processes may suffer from severe disruption, but they tend to find ways to establish a new �equilibrium’. It did not take long until the politi­cal system could, even if erratically, regain control over the disruptive forces that were undermining those longstanding �compromises’ that could keep the political system relatively stable at the expense of weakening its democratic credentials. The growing party fragmentation in Brazil’s �coalition presi- dentialism’ has been pointed out as a dysfunctionality that creates incentives for corruption and clientelism as well as engenders potential gridlocks for

governability and instability,^[1348] even if some controversies arise as to whether �coalition presidentialism’ itself may be more functional and accountable than normally depicted.^[1349]

In just over three years of his government, Bolsonaro has been nothing other than the most blatant expression of that �old politics’ that he so sharply attacked, to a degree nowhere to be found at least since the transition to democracy in 1985. He has become increasingly dependent on the most clientelist political parties in Congress. Patronage and corruption are his bargaining chips for a government that has proven chaotic and growingly unpopular. Despite Bolsonaro’s continu­ous threats against the democratic regime, whenever he boasts of his strength, he reveals instead a profound level of weakness: his powers have been largely transferred to the fragmented Congress.^[1350] In a presidential system like in Brazil, a weak president can either be impeached, if he or she does not compromise with Congress (and particularly with some of those most clientelist political parties), or simply be kept in office while Congress takes significant control over the political agenda and the national budget. Whereas former President Dilma Rousseff did not compromise when she rapidly lost popular support and was therefore impeached, Bolsonaro adopted the second strategy. This is a paradox of �coalition presidentialism’: it is dysfunctional by some means, but it also sets high incentives for politics as a condition for governability. A weak president, in such a system, is thus a recipe for instability.

Even Bolsonaro’s association with the military, which has engendered analy­ses of the risk of a coup d’etat,^[1351] seems less threatening than is usually depicted. Though the military has been revived in his government as never before since the transition to democracy in 1985, such a close relationship is a consequence of the disruption of the �normalisation’ that has survived over the democratic years by sweeping under the carpet the tensions between civilians and the military. Civilian control over the military seems fragile, just awaiting the opportunity to go off. A would-be autocrat like Bolsonaro would seize the opportunity to explore such a fragility through co-optation and ideological identification in order to raise his bargaining chips through threats and bluffs. Although such

The Destabilising Factors of the Rule of Law in Brazil 205 signs are certainly worrying for Brazil’s democracy and rule of law, the power has already shifted to the traditional political realm, where the real disputes defining the functioning of the country’s institutions effectively take place. The military owns the tanks and weapons, but it is the political system that has long played the cards of Brazilian democracy, even if at the expense of making it less robust and stable.

The truth is that such an association between the Bolsonaro government and the military has proven not strong enough to challenge those self-reinforcing processes shaping the political system. More seriously, by so strongly aligning with such a weak and chaotic government, the military has also laid bare its own weakness and complicity with that tragic political project: not only has it failed in helping the government to provide good governance, but it also has seen itself engulfed by accusations of mismanagement and corruption. For instance, it was the three-star general Eduardo Pazuello who was in charge of the Ministry of Health during the deadliest period of the COVID-19 crisis. His administration was nothing short of calamitous, some might say criminal. Scandals involving the prescription of ineffective drugs and corruption related to the acquisition of vaccines made international news^[1352] and implicated not only civilians but several military figures inside the government. Increasingly, the military’s association with the Bolsonaro government has become clear as investigations point out the participation of its members in numerous corruption schemes.^[1353] It has lost some support and trust of general society,^[1354] so its threats against the democratic system - as happened with Bolsonaro’s own threats - have sounded less and less credible, and increasingly frequent and brazen. The military could boast of its strength - after all, it possesses the arms - but, in the end, it needs to compromise with the political system, even as a last hope that its project - and Bolsonaro’s - can survive.

In the end, the political system, with all its dysfunctionalities, tends to prevail. Radical and authoritarian movements affect the �normalisation’ that is needed for such a system to work, even more so given the costs of fragmented and concurrent interests. It is no wonder that Brazilian past presidents with successful coalitions have all leaned to the centre of the political spectrum. An authoritarian figure could only succeed if he or she were able to radically disrupt such a system,^[1355] a move that demands at the very least the massive support of

key sectors of society, which Bolsonaro has growingly lost. He would need such support for what political scientists call �gambling for resurrection’, that is, to �maintain power by inducing massive change in the environment that has only a small chance of succeeding’.^[1356] The vast majority of Brazilians, however, reject the return to an authoritarian regime,^[1357] so �gambling for resurrection’ increas­ingly looks like a desperate move. It seems that there is a threshold above which even some of Bolsonaro’s supporters may turn against him: they may be on his side now in an environment where democracy still exists, but, if this scenario changes, the �rationality of fear’ may lead to a defensive behaviour against more damaging authoritarian actions. The irony is that, for his authoritarian project, Bolsonaro is a President without enough powers, and a populist without enough people.^[1358]

On the other hand, the judiciary promotes this new �equilibrium’ by switch­ing from a defiant posture against the �normalised’ political system to a more condescending behaviour toward such a �normalisation’. The judiciary from �Operation Car Wash’, which revealed corruption schemes but not without also corrupting itself, could not be a reality any longer. The disruptive nature of that defiant posture to the rather stable mutualism^[1359] between the political and judicial realms, after all, contributed to the perilous rise of a would-be auto­crat in the presidency. The upshot is that the judiciary, despite its contribution to such a scenario, found itself in urgent need of resuming its self-restrained behaviour toward the political system. It is no wonder that the Supreme Court has increasingly stressed procedural guarantees in its most recent decisions involving political bigwigs and businessmen,^[1360] in a movement that contrasts with the more politicised behaviour of the previous years.^[1361] It is also sympto­matic, for example, that Kassio Nunes, the first appointee to the Supreme Court by President Bolsonaro, needed to emphasise that the defence of constitutional guarantees �should be praised’^[1362] in his confirmation in the Senate. Yet a defensive behaviour against the still destabilising element of this new �equilibrium’ is also needed.

Therefore, if the judiciary has become more condescending toward the traditional political system, it has nevertheless become more reactive to an exec­utive branch that continuously threatens the country’s democratic institutions. Inquiries, for example, were opened in the Supreme Court to investigate the spreading of fake news and the promotion of undemocratic acts,^[1363] the alleged presidential intervention in the federal police^[1364] and corruption scandals involv­ing the acquisition of COVID-19 vaccines.^[1365] The judiciary has functioned as a shield against possible attacks on this new �equilibrium’ despite its own fragilities and increasing risks of takeover by the executive, especially in the circumstance of President Bolsonaro’s eventual re-election.

The �institutional equilibrium’, even if re-established by some means, has been damaged as never before during the democratic years and is now operating at a lower level. It will take years to recover from the harm inflicted on Brazil’s institutions: the political system has become more fragmented, uncoordinated and clientelist; the judiciary has lost credibility after immersing itself so deeply in sheer politics; the oversight institutions in all areas have been weakened; and the military have laid bare their profound incapacity to learn from the years of democratic life, revealing how ingrained in the barracks the authoritarian mindset remains. Overall, Brazil has taken many steps backwards in demo­cratic governance and commitment to the rule of law, which is heart-breaking given the improvements the country could achieve over the democratic years and the immense potentialities of such a resourceful and culturally rich coun­try. However, such a bleak scenario, once overcome, may be the chance for the country to challenge at least some of its longstanding wrongs. The question that remains, however, is whether the country will seize such an opportunity to finally have this encounter with its past.

II.