Brazil’s rule of law abyss gets uglier
Poor governance and inaction of the elites may turn South America’s largest economy into a kleptocratic totalitarian state
A few weeks ago, one justice of Brazil´s Supreme Court ordered a police raid into the homes of seven major businessmen, in addition to the suspension of their social media accounts, and phone and bank secrecy privileges. Based on the supposed content of private, fortuitous whatsApp messages, which not even remotely could present risk to any institution whatsoever (the allegation for the search was that the businessmen group was planning a coup d’etat, since one of its members suggested he would prefer a coup in case Lula won the upcoming presidential election, and six other endorsed his view with a thumb up emoji), the episode was only the latest, but also one of the most disrespectful and arbitrary in a long series of constitutional violations sponsored by the Court. These also include, to keep the list short, the imprisonment of a congressman for expressing his opinions – for which he is constitutionally inviolable, regardless of their nature; the arrest of journalists under no formal accusation, and the determination for social media platforms to remove mention of the relationship between PT, the major leftist political party, and PCC, a criminal organization.
Almost all of these and other recent violations took place under the Investigation no. 4781, launched in 2019, which, under the excuse of looking into alleged threats to the justices, positioned the Supreme Court on the simultaneous role of alleged victim, prosecutor, and judge. Full of all sorts of juridical vices, this investigation enabled the Court to bypass the Federal Prosecution Office and order police raids directly, turning the institution which, in thesis, has the precise role of ensuring the observance of the Constitution into its most abusive perpetrator.
What explains this tyrannical behavior of the Court? Isn´t it accountable to any other form of authority? To understand this situation, we must dig back a bit into Brazil´s past.
Governance of the republic in Brazil has always been fragile. Important institutional landmarks, especially for geographically large republics, such as proportionality between states’ population and house seats was never observed, and house districts were never created. However, the origin of the current rogue behavior of the Supreme Court lies in the so called privileged forum, an institute embedded into the country’s constitutional order since colonial times, which establishes the right of the political elite to be judged by the Supreme Court. The mechanism induces the political engagement of the tribunal, making the limitation of its power by the Senate, as constitutionally provisioned, a fiction, since many senators have judicial liabilities.
But this feature cannot, by itself, justify the continued inaction of the Senate on face of the unfolding constitutional infringements by the Court – relevant pressure by the society could, presumably, revert this course. Indeed, the indifference of the business and intellectual elite, and of almost the totality of the press, who, apart from exceptions, pretend nothing is going on, can explain the strength of will of the Supreme Court in extending the scale and scope of the persecution sponsored against sympathizers of President Jair Bolsonaro. The truth is that the arbitrary actions are all directed to people who share such political preference.
The reasons behind the behavior of the press and the elites in face of such continued violence are multiple. The smaller access of various interest groups to federal budget, state-owned companies’ resources, and subsidized credit lines, in comparison to previous governments, certainly plays a major role. Major media companies, for instance, resent the fact that the present government spends a fraction of what its antecessors did on publicity. But this is not the only reason. The idea that a politician such as Jair Bolsonaro, who cares about the “man on the street’s” problems, such as inflation, crime, unemployment – rather than worrying about the imaginary problems of the progressive elite – may have the concrete possibility of staying another term in office is unacceptable to almost the entirety of the press, and much of the business and academic upper classes. This contrast is very much similar to the opposition of values and interests, within the US society, which Hillary Clinton had in mind when she referred to Donald Trump’s electors as “deplorables”.
In addition, on a more specific basis, the behavior of the Supreme Court jeopardizes the electoral process in a way few would dare to deny. Oddly enough, the aforementioned blockade of social media accounts and phone and suspension of bank secrecy privileges of Bolsonaro´s businessmen supporters was not a request of a prosecutor, but rather, of an opposition Senator, who happens to be Lula’s campaign coordinator. The request was acknowledged by a Supreme Court justice who also happens to be, as head of the Electoral Court – another institution which only exists in Brazil – in charge of the upcoming election itself. The role the Supreme Court may be playing in compromising the elections arguably surpasses that of the FBI in the 2016 and 2020 US ballots, exactly because a branch of the court act as arbiter of the election, what presumably requires it to be unsuspicious.
There is no doubt that if the press and the economic elites behaved in a less spiritless way, the Senate would be more likely to step up to its duties of regulating the Supreme Court, perhaps even impeaching at least one of its justices. The judges’ own attitude would probably be much less daring. But the silence contains a large dose of cynicism and disguises a tacit collusion between these groups to place again in the Presidency, in the absence of another electorally viable option to defeat Bolsonaro, former president Lula. Lula was condemned by several justices and courts for corruption crimes, before having his sentences nullified by the Supreme Court, under the excuse of unsuitability of the first instance tribunal to judge these criminal processes, despite having confirmed previously, on several occasions, the competence of such court to host Lula’s criminal cases. It is important also to highlight the fact that Lula was not exculpated of the crimes of which he was condemned, and, later, imprisoned.
Since the idea is to prevent Bolsonaro’s reelection at all costs, it matters little that the only possible shot required the anointing of a figure who, in any functional republic, would have been kept banned from public life, exactly because of the continued perpetrations to the Rule of Law sponsored by his party during the sixteen years in which it was in power, in the form of large scale and extensively detailed corruption schemes, as recorded in multiple courts’ case files, books, businessmen whistleblowers, and media of all sorts.
The PT rule would end with the impeachment of Dilma Rousseff, Lula´s former aide, amid the largest recession ever recorded in Brazil, featuring a 7% loss of GDP and 8pp increase in unemployment rate between 2015 and 2016.
The Brazilian economy grew at strong rates up to the late 70’s, due to favorable demographics, low initial capital stock, and important comparative advantages. These conditions, under minimum governance standards, were sufficient to ensure prosperity for a long period, which ended, however, more than four decades ago. Brazil’s continuing negligence towards the organization of the branches of government and Rule of Law have been ever since preventing the implementation of remaining important reforms, and, therefore, holding back the country´s potential economic growth. But this carelessness may be, now, about to charge Brazilians a much higher price.
With the help of a rogue Supreme Court, a hopeless press, and a silent elite, the country could end up lost in a combination of kleptocracy and totalitarianism that would fare well in the competition of somber perspectives which most of South America seems to have already joined.