Neder Meyer, Emilio Peluso

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Authoritarianism Without EmergencyPowers: Brazil Under COVID-19Emilio Peluso Neder Meyer 2020-04-08T09:00:00One of the few heads of state that insist on denying scientific and epidemiologicfacts concerning the spread of COVID-19 is the Brazilian President Jair Bolsonaro.For Bolsonaro, politics comes before truth. Since the beginning of the pandemic ofCOVID-19, he is disseminating doubts on social media (although Twitter, Facebookand Instagram deleted some of his posts) to galvanize his radical supporters whilecreating a distraction for his government’s inability to implement social and economicaids to the low-income families affected by social distancing. For the moment, thepresident has failed to gather the public support that he needs for an extension of theemergency powers of the executive, like Orbán did in Hungary. But his authoritariandiscourse has not disappeared from the horizon. On 31st March 2020, for instance,Bolsonaro celebrated the anniversary of the Coup of 1964 as a “great day forfreedom”.Going Back to Work?Yet the risk of governmental abuse of emergency powers in Brazil comes lessfrom the measures against COVID-19 than from possible social disturbances thatmay emerge in the future. In another surprising public appearance on Brasília’sstreet markets, on the 29th of March 2020, Bolsonaro expressed his desire toenact a decree allowing people to go back to work. A decree with this type ofcontent would hardly be surprising, since it follows a pattern that Bolsonaro tracedfrom the beginning of his government, which is to use his presidential powers todefy constitutional and legislative obligations. Moreover, his alleged concern foreconomic losses of poor people contradicts his acts. On April 1st 2020, he issuedthe Provisional Act 936 (a “Provisional Act”, in Brazilian constitutional law, is anexecutive legislation which must be approved by National Congress, but producesimmediate effects until it is confirmed or rejected by the legislature), allowingcompanies to suspend their employees’ salaries at the maximum of 100%.Most governmental policies against COVID-19 (including restrictions on thecommerce, interstate and intermunicipal public transport, schools, and so on) havebeen brought by state and municipal authorities. Despite Bolsonaro’s effort toconcentrate powers in the federal government, states are challenging the authorityof the president and have been more successful in convincing the populationof the seriousness of the disease. 24 of the 27 state governors wrote a letter toBolsonaro expressing eight consensual coordinated actions to fight the pandemic.Their positions, which coincide with the views of the Speakers of the House ofRepresentatives and of the Senate, attempt to curtail executive authoritarianaspirations.- 1 -Bolsonaro’s coronavirus denial lacks support even among important membersof his cabinet. The Minister of Health, Luiz Henrique Mandetta, has adopted amore technical position toward COVID-19 and is acting in accordance with therecommendations of the scientific authorities, despite being constantly embarrassedby Bolsonaro’s pronouncements.Authoritarian PronouncementsAlthough the minister has been forced to change some of his speeches to keep hisjob, he has found and an important ally: the two Houses of National Congress. Themost important legislative basis for combating COVID-19 comes from the federallegislation, especially Act number 13.979 of 2020, which establishes the competenceof the Minister of Health to define the timing of the public health emergency, whichcannot exceed the recommendations of the World Health Organization (WHO).Since the beginning of Bolsonaro’s presidency, the legislative branch has adopteda hesitating approach with regards to his authoritarian pronouncements, given thatit endorsed the executive economic policies. But the global spread of COVID-19changed this picture. The experience of European countries, which is widelydocumented by scientific authorities, generated a consensus among stategovernments and legislative and judicial institutions, which enhanced the capacityof the two houses of Congress to resist the illiberal rhetoric of the president of therepublic. The measures provided by Act 13.979 of 2020, which is a federal lawenacted by the Congress, are widely regarded as reasonable and follow the globalpattern of horizontal quarantine.Bolsonaro is isolated in his defense of a vertical quarantine—probably based onthe assumption that if the economy collapses (as it will), he will be able to addresshis supporters as the major voice against the sanitary measures which are likely toproduce a wide impact in the economy. He has, in fact, taken action to implementthis policy.After a series of quarrels with Brazilian governors, Bolsonaro issued the ProvisionalAct 926 of 2020 to enlarge his powers during the crisis. This provisional act intendedto prevent states from suspending the so-called essential economic activities,which should be specified by the president in an executive order. Furthermore, itestablishes that several activities only can be suspended in accordance with thedirectives of federal agencies that regulate matters such as transport, energy, fuel,agriculture and so on. Although one could suppose that this deference to federalagencies would be a kind of horizontal and bureaucratic control against Bolsonaro,the truth is the contrary. In effect, Bolsonaro controlled several of the nominationsfor these offices. On a public rally on the 15th March 2020 (against the orientationsof his Minister of Health), Bolsonaro went to the streets of Brasília in the company ofthe director of the National Agency on Sanitary Surveillance, who was supposed totake action to prevent the spread of the disease.- 2 -Chaos as MethodThe current chaotic scenario is intentional. As a political analyst described it,Bolsonaro uses chaos as a method for preserving the fidelity of his voters. Hispolitical ideology, Bolsonarism, is based on a permanent challenge to the institutionsand a promise of a populist savior. There is nothing better for creating a situationof despair than to disseminate the idea that institutions and the media are againstthe immediate economic recover of “the people”. One must bear in mind thatbolsonarism presupposes a Schmittean notion of popular sovereignty, based on afriend-enemy relationship by which he identifies himself as a friend of true peopleand an enemy of the elites, institutions and the media that recurrently despises hispolitical ideas.There is hope, however, that Bolsonaro’s populist response to the crisis might fail.Political institutions have presented adequate responses to Bolsonaro’s COVID-19campaign of lies. The National Congress expanded the economic aid to low incomefamilies proposed by the government. Whereas the executive intended to pay US$39 to each family per month during the health crisis, the legislature approved theamount of US$116, which can be doubled if a family household has two working-age parents or is funded by a single mother. By the same token, when Bolsonaro’sgovernment approved a public campaign to make people go back to work (“BrazilCan’t Stop”, was the title), a federal judge in Rio de Janeiro suspended it on theground that the propaganda could harm the health of the population—a similardecision was taken, on 31st March 2020, by the Justice Roberto Barroso, of theFederal Supreme Court.In another important decision, the Federal Supreme Court stopped Bolsonaro’sattempt to grab legislative powers through the suspension of the period of legislativeapproval for provisional acts. In an important decision to uphold the rule of law,the court rejected Bolsonaro’s intent to keep his “Provisional Acts” indefinitely validduring the COVID-19 emergency.  By the same token, the court also halted theintended restriction to access to information established by the federal government.State of Defense and State of SiegeIn the everlasting March 2020, such different political positions must be confrontedwith the Brazilian Constitution of 1988. Until now, the vocabulary of a constitutionalcrisis has not been pronounced. The 1988 Constitution provides for two systemsto deal with serious crises: the state of defense (Article 136) and the state of siege(Article 137). The state of defense can be declared by the president with the aim ofrecovering public order or peace, in determined places, when they are threatened byinstitutional instability or natural calamity of huge proportion. In any case, the state ofdefense is subject to a thirty days deadline (with one renewal), and its decree mustbe approved by the National Congress and must specify the rights that will be limited(the Constitution allows only for limitation of specific rights—liberty of reunion, post,telegraphic and telephonic communication) during the measure.- 3 -The state of siege is even more serious. The president asks the National Congresspermission to issue the decree in this case. It can only happen in cases of seriouscivil commotion, inefficiency of state of defense and war declaration or foreignaggression. The decree shall specify the duration of the state of siege, the measuresto be adopted and the rights that will be suspended. It must endure for thirty dayswith a single renewal—in the case of war, it can last for the period of the conflict.Since the promulgation of the Constitution of 1988, the measure was not invoked byany president.As the president of the National Bar Association already opinioned, the COVID-19crisis does not fulfill the requirements for the state of siege. Although Bolsonaroasked federal authorities to issue legal opinions about this possibility, no sustainedlegal defense of a state of siege has been presented until now.Federal InterventionAnother measure not directly related to the constitutional system of crisis, butwhich calls the attention for its centralist profile, is the “federal intervention” in thegovernment of the states (Brazilian Constitution, Article 34). The measure shouldbe used in cases where the whole federal system is endangered. Again, after1988, Brazilian presidents were reluctant to adopt this measure, until Michel Temerreached power following Dilma Rousseff’s controversial impeachment trial. Facinghuge unpopularity, Temer used the device to supposedly attack public securityproblems in the state of Rio de Janeiro. Bolsonaro allegedly could invoke the federalintervention in his war against Brazilian state governors, although his politicalsupport seems to decrease as he proceeds with his anti-truth health policy. It seemsunlikely, in our judgment, that the two houses of National Congress will support thispolitical adventure.ConclusionAs of this writing, Bolsonaro’s government was not able to shut down the legislativechambers or excessively centralize power, as his supporters expect. His rhetoric ismore salient then his capacities. However, if democratic collapse was not reached,deterioration is gaining ground. In the current political setting, leftist and centristsare together against Bolsonaro. And even among his voters, some already seem toregret it. Perhaps this resistance may increase the chances for him to try a suicidalpolitical assault, if the military decided to back him. If this is the case, instead ofbeing close to Orbán’s Hungary, Brazil is more likely to follow the traditional politicaltragedy. With everyone on quarantine in their houses, Brazilian democracy hangson the capacity of conservative institutions—National Congress and the judiciary—torecognize the failure of Bolsonaro’s project. On the 31st March, he went to televisionto deliver another speech, this time more moderated (or frightened?). Still, he usedWHO Director Tedros Ghebreyesus’ words to defend his own view on balancingthe struggle against the virus against the need for daily bread. Yet for the fifteenthconsecutive day, Brazilians went to their balconies with their pans.- 4 -We can extract two conclusions from the Brazilian case. First, it seems to showthat emergency powers may not be necessary for a situation of health crisis. Usingthe legislative and executive apparatuses, governments can enforce measuresfor protecting public health, at least in a good scenario. Of course, the economicperspective must be considered—and that is the most important thing Ghebreyesuscommunicated: governments must, in times like these, take care of their citizensand support, specifically, the poorer ones. Second, it can show that perhaps acoordinated effort among local governments, legislatures and judicial authorities canprovide a relevant resistance against illiberal populist leaders.The Brazilian case, with Bolsonaro, becomes more dramatic because of hisirresponsible tactics to influence behavior and to challenge democratic institutions. When we turn to the people that live in Brazilian favelas, sharing spaces that, inmost of the cases, do not allow for separate rooms, the situation becomes dramatic.This is the reason why, sooner or later, Bolsonaro must be held responsible for thedeaths he is influencing.- 5 -

Authoritarianism Without Emergency Powers: Brazil Under COVID-19

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Authoritarianism Without Emergency Powers: Brazil Under COVID-19

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