Neder Meyer, Emilio Peluso

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COVID-19 in Brazil: A SickConstitutional DemocracyEmilio Peluso Neder Meyer 2021-02-22T11:00:57Legal and Political Responses in Brazil to COVID-19In the first half of January 2021, Brazil had already counted more than 200,000deaths and 8 million people diagnosed with COVID-19. Throughout 2020, theresponses from the federal government, which should have taken on a coordinationrole considering the federalised National Health Service (SUS, Sistema Únicode Saúde), were confusing and inefficient. Doubts and scepticism spread by thefederal executive undermined the work of governors and mayors and, mirroring theAmerican example, contributed to increase the number of cases and casualties.As we have previously shown in this blog, the legal basis for responding to theCOVID-19 pandemic is the Act 13.979 of 2020. Throughout 2020, the act hasbeen reformed several times, though President Bolsonaro vetoed some of thechanges. Parts of the act were subject to judicial review in the Federal SupremeCourt. Generally, the act recognizes the federal dimension of the 1988 Constitutionprovisions on the protection of health.Governors and mayors had to produce their own regulations following the federallegislative model. The Federal Supreme Court, when adjudicating cases on thepresident’s competence to define essential activities that could not be halted duringthe pandemic (ADI 6.341), criticized the inaction of the federal government, whichcan undermine state and local measures aiming at the protection of their citizens. Onthe court’s judgment, the federal legislation produced by National Congress cannotreduce the power of the states and municipalities to provide health services. Despiterecognizing that the federal authority has coordinating powers on these matters,the Federal Supreme Court preserved the competences of governors and mayors.Afterwards, the National Congress modified the Act 13.979 (via Act 14.035 of 2020)to, again, reinforce the federal character of the protection of health in Brazil.The relationship between state branches in those cases demonstrates how theCOVID-19 pandemic required immediate responses that the executive authorityrefused to present. The action of states, municipalities and other branches of thefederal government worked to curb the federal government’s lethal politics, althoughmore could have been done for holding federal authorities accountable for theiracts. In the following sections, we attempt to demonstrate how Brazilian institutionsreacted to President Bolsonaro’s irresponsible approach to COVID-19. The criticaltone adopted here points out that more could be done to avoid the high death andcontamination toll.- 1 -Brazilian Executive and the Pandemic2020’s global fight against COVID-19 pandemic was marked by both Donald Trumpand Jair Bolsonaro’s sceptical and confusing views on the existence, seriousnessand responses to the pandemic. Although some theoretical work has already beendone to understand their policies as deliberate omission – executive underreach– more can be said about the contradictory ways by which the pandemic waspolitically confronted. The Brazilian president has called the COVID-19 disease a‘little flu’, engaged on several occasions in meetings and public manifestations thatdisregarded social distance measures (including several ones attacking Brazilianinstitutions, such as the National Congress and the Federal Supreme Court),shrugged off the death toll, spent significant amounts of money producing ineffectivedrugs, such as chloroquine, to treat the disease without scientific evidence, raiseddoubts against and criticized the use of vaccines, and lead to an unnecessaryconfrontation with governors about the best moment to start a vaccination program.In the end of 2020, the federal government still lacked an adequate plan for buying,distributing and inoculating vaccines throughout the huge Brazilian territory.Three factors must be considered when analysing the Brazilian federal government’sapproach to COVID-19. The first factor is the irrationality of Bolsonarism, the politicalmovement that brings together Bolsonaro’s supporters. Given the lack of anyrational constraints on their action and judgments, Bolsonarists feel free to engagepassionately with the president’s pronouncements. Bolsonaro’s extremely radicalviews find resonance all over the country because of their emotional appeal. Theyare generally associated with guns, death, and certain abhorrent passions whichbring together people with different worldviews but a shared scepticism about reasonand a similar authoritarian mindset. According to a Brazilian political analyst, therewould be only Bolsonarists (Bolsonaro’s supporters), instead of a consistent set ofideas called Bolsonarism. Nonetheless, a common background is that Bolsonaro’ssupporters hold extremely individualistic views about political morality and havevery little sense of shared or political responsibility. When faced with PresidentBolsonaro’s coronavirus denial, they regard themselves as “free” or “liberated”to pursue their own individualistic agendas without the burden of judging what isbest for the polity or restraining their action for a common good. In other words, bydefying science and denying the efficacy of vaccines, lockdowns, and the like, oroffering easy exits for the pandemic, President Bolsonaro discharges his followersof several burdens and responsibilities that might impose rational constraints ontheir unregulated whim. He promises his followers unrestricted freedom and allowsthem to blame others (who illegitimately purport to restrict this freedom) for theeconomic consequences of the disease. Pragmatically, the president’s strategyhas led Bolsonarists to act in a coordinated way and has managed to keep thepresidential support in the range of 30% of the Brazilian population.The second salient factor that must be considered when analyzing the executivebranch’s approach to the pandemic is the engagement of military personnel inhis government. After dismissing two civilian health ministers that adopted atechnical approach to the pandemic, the president nominated a military for theoffice, General Eduardo Pazuello. As Minister for Health, Pazuello showed a canine- 2 -fidelity to President Bolsonaro. When Minister Pazuello first attempted to acquireCoronaVac vaccines from the government of the state of São Paulo, Bolsonaroordered the suspension of the purchase, on ideological grounds. While the officialjustification for this measure was based on the absence of sufficient tests, theunofficial rhetoric, widely disclosed in Bolsonarist social networks and reinforced bysome of Bolsonaro’s statements, is that any Chinese vaccine should be rejected as asuspicious medicine. In effect, Bolsonarism’s ideological battle against an imaginaryglobal communist threat led to a paralysis in the adoption of a national immunizationplan. In mid-January 2021, while the first draft of this post was written, there wasstill no concrete plan for acquisition and distribution of vaccines in a large scale.States such as São Paulo kept on pressing the federal authorities to acceleratethe procedures in the Sanitary Surveillance National Agency (ANVISA – AgênciaNacional de Vigilância Sanitária), also commanded by a military officer.On January 17th, however, President Bolsonaro suffered an important defeat:the Agency formally authorized the emergency use of the 7 million doses of theChinese vaccine. The Governor of the state of São Paulo, João Dória, began theimmunization programme in the state just a few minutes after this measure. Thevaccination campaign began immediately and Bolsonaro’s coronavirus-denialdiscourse suffered a significant retreat. It is hard to measure, however, the actualimpact of this fact in Bolsonaro’s anti-scientific crusade.The relationship between the armed forces and the presidency is still a majorproblem for Brazilian constitutionalism. Bolsonaro’s government reveals that, inaddition to legitimacy issues, technical incompetence is a hallmark of the Brazilianmilitary personnel. That is a bigger problem if one considers that not only the federalarmed forces, but also state military policemen generally support the president andits authoritarian moves.The third factor that should be considered when discussing the executive politics onthe pandemic is related to the first one. Bolsonaro adopted a clearly contradictoryapproach to the pandemic. While he often refuses to admit the gravity of the diseaseand its capacity to infect, at other times he adopts risky solutions aiming at potentialpolitical gains. His decision to supporting chloroquine is an example. Despite theabsence of scientific  evidence of its efficacy against the virus, Bolsonaro replicatedTrump’s anti-scientific rhetoric.His radical rhetoric suffers from a wide range of contradictions, which can beeasily identified. If COVID-19 is only a ‘small flu’, why care about a treatmentwithout evidence of efficacy? By the same token, the president took a stand againstobligatory vaccination, at the same time that announced that a national plan for thevaccines was almost ready in the end of December 2020.All of these factors give a glimpse of the chaotic Brazilian federal politics towardsCOVID-19.- 3 -Legislative and Judicial Responses to the FederalChaosThe National Congress has taken a different approach towards COVID-19. Thecreation of a national financial aid was approved in opposition to Bolsonaro’soriginal proposal for a significantly lower aid. In addition, Bolsonaro tried to vetothe mandatory use of masks in public spaces such as commercial and industrialinstalments, religious temples and schools. He also intended that companies wouldnot be obligated to supply masks for their employees. The National Congressoverturned the vetoes, as it did in several other circumstances during Bolsonaro’sgovernment.The Federal Supreme Court played a pivotal role to secure the constitutionallegitimacy of the measures against COVID-19 – the case law was published inEnglish. The court restricted police raids in Rio de Janeiro’s shantytowns duringthe pandemic. It reinforced the constitutional protection of indigenous people bydemanding that the federal government offered adequate health policies concerningthe pandemic. The structural decision ordered the federal government to present aplan for protecting the indigenous populations – at least twice, the Justice rapporteur,Roberto Barroso, rejected the plans presented by Bolsonaro’s government. Basedon the constitutional right to access to information, the Federal Supreme Court struckdown provisions that restricted the publicization of COVID-19 governmental data.The court demanded that public servants obey to scientific and technical criteriawhen applying measures that envisioned the control of the pandemic. It allowed thestates and municipalities to rely on technical and scientific data obtained by them tobase their health measures, and not only those collected by the central government.The same federal principle allowed that states and municipalities restricted thecirculation of people to avoid the virus’ spread.In other important cases, the Federal Supreme Court (i) prevented the centralgovernment from requesting ventilators bought by a state, (ii) rejected a claim thatprovisional measures (that is, executive decrees with statutory force issued bythe president) could have their validity indefinetely extended during the pandemic,and (iii) ruled that federal and state governments can impose restrictive measures(alternative to the enforced vaccination) on those who refuse to take vaccinesagainst COVID-19. The court authorized, for instance,  limitations on transportationor prohibitions of access to certain public places.There were, however, certain problematic rulings and controversial measuresadopted by Brazilian courts and judges. The Federal Supreme Court sustaineda provision that authorized hour reduction and salary cut without trade union’sauthorization – a decision that goes against the text of the 1988 Constitution.The court was  fiercely criticized, in addition, when it requested certain researchfoundations to give priority to judges and public servants in the distribution ofvaccines.- 4 -Brazilian Federal System and COVID-19 PoliticsThe 1988 Constitution designed a system for the protection of health basedon shared powers and cooperative action among the federal entities. As it wasmentioned before, federal executive’s inaction led to more participation of thestates and the municipalities. Instead of the central government assuming a role ofcoordination of health politics, we observed a conflict in the federal system, whichled to several cases being brought to the Federal Supreme Court – which, in thosecases, responded quickly and with a rational basis. The court, following provisionsof the Act 13.979 of 2020, allowed that states and municipalities use their vaccinesin cases of omission of the central government. Additionally, in case there is noauthorization of the Sanitary Surveillance National Agency, those federal entitiescould initiate a vaccination campaign based on foreign registrations.Right from the start of the pandemic, almost all states signed a public letterrequesting a proper response by the federal government. That was not a sufficientstep and most of the conflicts gained political dimension when they should not –consider the debate on the efficacy of the Chinese vaccine. The Federal SupremeCourt was provoked and federal matters became judicialized.Human Rights and Civil LibertiesThe right to health and personal integrity was deliberately attacked by the omissionsof the federal government. Although Bolsonaro still remains popular in somesegments of the Brazilian society, his accountability for the high death and infectiontolls should be considered by the National Congress. With this scenario in mind,the president approached traditional parties in order to gain their sympathy andavoid future impeachment processes. On the international level, Bolsonaro’s harmfulapproach against the indigenous people was brought to the International CriminalCourt with few chances to thrive – however, it can spark an important debate on thereach of the notion of crimes against humanity.In the domestic level, other rights were violated, such as the right to informationconcerning the numbers and data related to the pandemic. The Federal SupremeCourt was able to neutralize, in a significant measure, the harmful practice of thefederal government.On balancing, Bolsonarists continue to argue that COVID-19 measuresdisproportionally violate the right to property and the right to free initiative. Theytherefore resist the shutting of public spaces, bars, restaurants, and so on, to fostersocial distancing. Courts have generally rejected this view.2021 Outlook for Brazil2021 started with new waves of COVID-19 spreading in Brazil. At the same time,Bolsonaro insistent on his familiar exemption of responsibility. Hospitals in the cityof Manaus ran out of oxygen for patients. As several patients died of suffocation,- 5 -President Bolsonaro’s comments were limited to praise his government for doingtheir share instead of proposing any concrete solution. In his declarations, one caneasily see the individualistic and also lethal Bolsonarist logic.Brazil has an enormous challenge for the years to come. Bolsonaro’s governmentwas efficient to accelerate a process of deterioration of Brazilian constitutionalinstitutions: it captured state accountability agencies, it attacked the press and publicuniversities, it fragilized scientific organs and professionals, and so on. 2020 wasalso a year in which true coup’s attempts were not effective only because of theabsence of a genuine support from the armed forces or the resistance of the majorityof the population. Considering the COVID-19 pandemic and the federal executiveunderreach, Bolsonaro’s attitudes will surely delay the decreasing of the numberof deaths and cases. Although no emergency powers were, until now, invoked, theslow cooking of Brazilian constitutional democracy will require that the NationalCongress, the Federal Supreme Court and federal prosecutors adopt a much morevigilant approach to contain the federal government. The obstacle, however, isthat Bolsonarism can have already infected those institutions. It remains with thedemocratic society the task to heal Brazilian constitutionalism.- 6 -

COVID-19 in Brazil: A Sick Constitutional Democracy

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COVID-19 in Brazil: A Sick Constitutional Democracy

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