THE FUTURE OF BRAZIL’S RULE OF LAW

This book began by stressing the difficulties of writing it in the middle of the most critical political event in Brazil at least since the transition to democracy in 1985. The risk of history passing us by while the words are put on paper is nothing short of a daily challenge.

The main argument of this book has focused on two structural variables that have shaped much of the rule of law in Brazil: the rampant levels of social inequality and the stubborn authoritarian mindset that recurrently appears and gains prominence whenever the opportunity arises. These two structural varia­bles, now understood as features of a long-term history that have been preserved through a series of positive feedbacks,^[1368] should thus be interpreted as the real determinants of what may happen next in Brazilian reality and in the development of the country’s rule of law.

The exercise of behaving as a historian of the future^[1369] is certainly risky and fallible. It should, therefore, be acknowledged that we are dealing with the imponderable, so the predictions may prove totally or partially wrong. We attempt nevertheless to focus on the long-term history, on such structural variables that we have been discussing in this book by assuming that, as they have lingered for a while, the odds are that they will determine what comes next. Evidently circumstances and critical junctures may change the course of events, but assuming that they tend to follow a certain path relieves a bit of the burden of foreseeing the future.

In the short and medium term, Bolsonaro’s eventual re-election certainly means that Brazil will see its democracy backslide even further, but it is more likely that such a movement will be bumpier and far more nuanced than normally depicted. The use of strategies leading to forms of abusive constitutionalism^[1370] or autocratic legalism^[1371] will be likely to find less institutional resistance, so the constitutional erosion that has already been inflicted prior to and during the Bolsonaro presidency^[1372] will advance to an even more worrying level.

However, there are relevant caveats for this dire outcome. The first is that, based on current data on popularity,^[1374] Bolsonaro’s electoral victory, if it happens, will be very tight. To promote his election, he has advanced the adoption of polarisation^[1375] as a strategy. He can no longer behave simply as a populist and count on the popular pressure against the democratic institutions, because his support has significantly dwindled. Corrupting institutions and making them less robust to withstand attacks on democratic principles has thus intensified. The path is well-known for such a strategy: the incumbent gradually �[accu­mulates] advantage’ to the point that, even if citizens do not support him any longer, he has become far more immune to their preferences and can make even bolder movements for such a purpose.^[1376]

Bolsonaro’s first term has been marked by a series of movements against oversight institutions, above all the Public Ministry, through an �allied’ Attorney General of the Republic,^[1377] the Federal Police^[1378] and the Federal Revenue Office.^[1379] He has also shielded himself against a potential impeachment by expanding his coalition in Congress through pork barrel, patronage and corruption, though such a move is more a sign of weakness than strength.^[1380] Moreover, in order to regain some electoral support, he has increasingly appealed to public policies aimed at providing some assistance to the most in need - an important initiative especially after the COVID-19 crisis - but without enough planning and merely targeting potential electoral dividends.

Therefore, even if he is successful in gathering support for his re-election, it will not be enough for a �gambling for resurrection’^[1385] that could lead to a substantial number of Brazilians to engage themselves in Bolsonaro’s agenda of attacking even further the democratic institutions. Stealth will therefore be needed, but the difficulties will possibly lie in the likelihood of a Congress that tends to be composed of a larger number of members of opposition parties. Bolsonaro’s re-election will thus not follow the same pattern of his 2018 election, when a social catharsis prompted by �Operation Car Wash’ propelled the elec­tion of various newcomers in Congress, many of whom directly associated with Bolsonaro’s own unconventional victory. Due to Bolsonaro’s closer association with the most clientelist political parties to gain some leverage for re-election, he will already assume office with the rope around his neck. Like his first term, when former General Hamilton Mourao was elected Vice-President, Bolsonaro plans to run with the former General and even closer ally Braga Netto at his side in order to lower risk of an impeachment. Despite that, a second term may only be viable if Bolsonaro behaves like a feeder of pork and patronage, which, in theory, prioritises low-profile behaviour rather than radicalisation. In practice, however, Bolsonaro has already shown that he needs radicalisation as a political platform, so the agreement with the political system will carry on being very unstable and unreliable.

Brazil is also a federation of 26 states and the Federal District, so the execu­tive power, even if largely concentrated on the federal government, presents a reasonable level of fragmentation at the state and even municipal levels. In his first term, a number of newcomers were elected governors following Bolsonaro’s wave, such as in Rio de Janeiro and Minas Gerais (two leading states in Brazil’s Southeast). However, the likelihood is that the next elections will bring profes­sional and experienced politicians back to office as well as increase the share of governors from opposition parties. In his first term, Bolsonaro already had to deal with some serious opposition from distinct governors, especially in rela­tion to the COVID-19 crisis. The Governor of Sao Paulo, Joao Doria, was, for example, a fierce opponent of Bolsonaro, even though he had supported him in the 2018 presidential elections. A second term could mean an even stronger opposition, which not only would affect Bolsonaro’s influence at both state and local levels, but also how Congress, increasingly operating through pork and patronage, will behave in the face of such potential conflicts.

In a second term, Bolsonaro will have the opportunity to appoint at least two other justices to the Supreme Court. He will not yet reach the majority - and the correlation between appointees and the presidential agenda is far from automatic^[1386] - but four of the 11 justices will have already been appointed by him.^[1387] For a Court whose individual powers are highly disproportionate and where collegiate deliberation is low,^[1388] one single justice can already cause serious damage, let alone four or more. Brazil may then find itself in such a crossroad where not only Congress but also the judiciary may not function as barriers against autocratisation.

The path is not, however, that straightforward. Brazil has been a relatively stable democracy for over 30 years and is a very plural country socially, politi­cally and economically. Therefore, a series of positive feedbacks^[1389] have raised incentives in favour of democracy that cannot be dismantled without suffer­ing fierce opposition. In such a scenario, there will possibly be strong popular resistance and the media will tend to position itself, at least initially, mostly on the side of the opposition, as the main media outlets have already been doing during Bolsonaro’s first term. Bolsonaro will move forward in his authoritarian project, but to be successful he will need to count on a conjunction of variables that even a would-be autocrat cannot control. If he wins the 2022 election, autocratisation will be certainly more likely but not assured.

In any case, a Bolsonaro second term is not the most probable scenario according to the current polls.^[1390] The immediate consequence is that he will probably not concede and will adopt a similar strategy such as the one the US endured right after Donald Trump’s defeat in the 2020 presidential elections: Bolsonaro will dispute the results and denounce electoral fraud, even though nonexistent. He has already moved the pieces of the chess board in this direction and has preventively launched an assault on the country’s successful system of electronic voting, which, in its over 25 years in operation, has never been faced with cases of fraud and is fast, reliable, and largely accepted among Brazilians.^[1391] A proposal for constitutional amendment aimed at changing such a system was even presented in Congress, but the reaction, headed by the Superior Electoral Court, was powerful enough to block it in its first steps in the Chamber of Deputies.^[1392] The message has already been sent, and, if he loses, this may provide him with the argument to either leave office by stating that he had lost only because the election was rigged or, worse, he may lead a counterattack by mili­tias, members of the police forces and even Armed Forces to keep his hold on office. Such a move will very likely fail in the end: a coup d’etat will probably not work unless he has enough popular and some institutional support, which, especially after losing the elections, he will not, but the damage to democratic institutions and the rule of law will nevertheless be huge.^[1393] It is no wonder that attacking the electoral system and the members of the Supreme Court and Superior Electoral Court^[1394] is a win-win strategy once the prospect of his re-election becomes increasingly remote.

In the medium to long term, the future of the rule of law in Brazil hinges, in any case, on whether the country will keep sweeping under the carpet the tensions that helped lead to Bolsonaro’s election or whether the country will finally challenge them. For both scenarios, the condition is not only the end of Bolsonaro, even if bolsonarismo still remains for a while, but also that the country will be able to recover from the damage inflicted during his years in office and beyond. It will be time for reconciliation, as normally happens during regime transitions. The next presidents will have to reconstruct the bridges between the various political and ideological sectors of society and be able to lead the country to a new democratic moment. There is the risk that instability still remains for a while, but there is also the chance that, after such a cataclysm, the prospects of a stronger national union towards reconstruction gain some traction. Possibly more important is how the country will reconcile with its past. This will speak volumes about which path the country is willing to follow from then onwards. If it repeats the behaviour adopted during the transition from the civilian-military dictatorship (1964-85) to democracy, when reconcili­ation meant merely amnesty and impunity, �normalisation’ may be achieved, but at the expense of keeping Brazilian institutions under continuous stress, just waiting for a new opportunity to break down.

The stubborn authoritarian mindset gained a new shape and adopted new strategies during the Bolsonaro government. It laid the groundwork for a type of far-right movement that, throughout most of the democratic years, had little power to go much further than in narrow social circles. The most serious conse­quence for the future of the rule of law in Brazil lies in the higher penetration of a disruptive discourse against democratic institutions in much broader segments of society. Negotiations and compromises between right and left-leaning politi­cal players will become far less stable if turmoil is continuously triggered by strategies to antagonise and polarise their stances, in a trend whereby �demo­cratic publics and elites seem to be considerably less congenial and consensual’.^[1395] This is the reason why bolsonarismo, as the expression of such a movement in Brazil, will certainly linger for a while and will do whatever it takes to make up lost ground after Bolsonaro is no longer in office. The future of the rule of law in Brazil, even if a new democratic momentum takes place, will be negatively affected by the permeability of such a movement, and even more so if it is not seriously challenged or simply swept under the carpet.

On the other hand, it is in such turning points that the opportunity may arise for pushing for change, as they offer the opportunity for reaching a �new equi­librium’ and even a deeper one under which democracy will operate.^[1396] History has an impressive capacity to reinvent itself for better or for worse, but unless incentives for a self-correcting learning process^[1397] effectively take place, Brazilian democracy and the functioning of the country’s rule of law will always swim in muddy waters. It is time for finally challenging the wrongs of those dictatorial years, the turbulent civilian-military relationship, the violence and unaccount­ability of the security forces,^[1398] the legacies of the institutional framework from those dictatorial years^[1399] and the serious damage to Brazil’s rule of law under the Bolsonaro government.

However, if the authoritarian mindset is the Achilles heel of Brazil’s democ­racy and rule of law by raising the stakes of politics and creating incentives for further polarisation, it is the country’s outrageous social inequality that feeds it. In such a context, there is an unstable �equilibrium’ whereby those who benefit from such an inequality will do whatever it takes to keep their positions virtu­ally untouched, and, in particular, use the legal framework to construct and maintain inequality for their own benefit. The level of coordination among the distinct segments of society to enforce the rule of law and protect democracy is therefore fragile, demands extra energy to reach consensus, and is less robust in its ability to constrain state powers.^[1400] It is a fertile ground for resorting to extraconstitutional means and for the rise of would-be autocrats, as happened with Bolsonaro.

On a deeper level, the future of the rule of law in Brazil hinges on how the country will devise public policies aimed at combatting poverty, providing social inclusion and thus transforming de jure equality into de facto distribution of power.^[1401] Such movements tend to be gradual as pushing for radical changes in such entrenched social relations tends to raise the stakes of politics and desta­bilise the constitution.^[1402] In any case, they are necessary, urgent and crucial for laying the groundwork for the country to reach a new level of commitment to the rule of law and to establish an �equilibrium culture’ where democracy is �the only game in town’.^[1403] Brazil has, throughout its democratic years, achieved significant institutional progress, created relevant mechanisms of social inclu­sion and enhanced its culture of democracy. Yet, it is still a country of deep social exclusion, extractive institutions^[1404] and where the legal construction of inequality prevails. In such a context, �normalisation’ through oblivion becomes Brazil’s historical hallmark. The future of the rule of law in Brazil is certainly a vast unknown, but unless its wrongs are finally combatted, it may reach a new democratic equilibrium, but, once again, one that is fragile and unstable, just awaiting a new crisis. May Brazil learn from its past. May Brazil’s rule of law finally mean the legal construction of equality.