Brazil at the crossroads

Image: ColeraAlegria


We are facing the difficult task of removing a president from the Republic – which in presidential regimes is supposed to be an exceptional move – in the midst of a pandemic, which brings even more adverse conditions

We have reached a point where sustaining the Bolsonaro government has become very difficult, although the way out is not easy either. The health crisis, of global proportions, takes on the air of genocide in the face of the government's complete lack of capacity to face it: the dead are piled up in mass graves. And Bolsonaro has made the COVID-19 pandemic his battlefield: in declared war with key political actors, he shoots at governors, mayors, STF ministers and congressmen. The crimes for which the president is responsible accumulate at almost the same pace as the suspicions of ordinary crimes. A country adrift and a government that compromises the chances of maintaining its own democratic regime. Given this scenario, the big question that arises today is how to end Bolsonaro’s mandate, saving what’s left of democracy.

With the exception of the resignation, which would be a unilateral act, all other possibilities for the end of this government involve diverse actors and significant degrees of complexity. There are four possible paths:

The first is the impeachment of the Bolsonaro-Mourão ticket via the Superior Electoral Court (TSE). Currently, eight electoral judicial investigation actions (AIJE) are being processed, in different procedural stages and mobilizing accusations of different types of abuse. In the instruction phase, the AIJE's that deal with the alleged misuse of communication and abuse of economic power can take advantage of the investigation of the fakenews, which is being processed by the STF, under the rapporteurship of Minister Alexandre de Moraes. The path seems simple, when one considers that 4 out of 7 votes in the TSE would be enough to remove the president and his vice president. This departure, if the trial were concluded with conviction later this year, would result in a new presidential election. And even if the TSE progressed less quickly, the removal of the ticket would lead to an indirect election by Congress, until the direct choice by voters is reestablished in 2022. This is the least politicized way of building a way out, as it involves, almost exclusively, judicial actors, even if, in a second moment, popular sovereignty, directly or indirectly, was reestablished.

However, and precisely because of the object that it legally protects - popular sovereignty -, electoral justice adopts a standard of judgment anchored in evidentiary caution. That is, the evidence needs to be plentiful and solid for justice to proceed to a conviction for abuse of political or economic power, resulting in the removal of the ticket. This path is so delicate that not even during the crisis of the Dilma government – ​​whose popularity reached derisory levels and the press, businessmen and most of the political class formed a consensus around the need for her departure – did anyone dare to take this step. Another aggravating factor here is that it would be naive to assume that the military, after the space they occupied in the national political scene, would not react to an outcome that would affect Mourão as much as Bolsonaro. Would the TSE remove two military personnel from the most important positions in the country and would the Armed Forces accept the decision peacefully? Even after more than 30 years of democracy, this possibility, unfortunately, seems unlikely.

The second path is via the STF, where the inquiry opened based on Moro's accusations puts the Bolsonaro government under suspicion. In this process, the president could, in theory, be convicted of a common crime linked to his position, which would bring forward the end of his term. This possibility brings difficulties both from a legal and political point of view. Legally, the fundamental issue involves the discussion about the limits of judicial control over discretionary political acts: the STF does not have a clear position on this and the criminal grammar does not offer much support for framing Bolsonaro's acts in the crimes of administrative advocacy or obstruction of justice. Not to mention the difficulties related to obtaining and evaluating evidence. From a political point of view, the process involves numerous actors, with emphasis on the Attorney General of the Republic, Augusto Aras, who has veto power. At the end of the investigation, he could decide whether to continue the process or file it. And, by all appearances, Aras has little incentive to move forward. With an eye on his reappointment to office next year or seeking to be appointed to the STF by Bolsonaro, why would the attorney general dissatisfy precisely those who have a pen in their hand?

Even if the head of the Federal Public Ministry were to denounce the president, the Chamber of Deputies would need to authorize, by a qualified majority of 3/5, Bolsonaro’s prosecution and trial. If that happened, the president would be removed to await the result. This is one of the reasons, by the way, why Bolsonaro is negotiating support with Centrão – a euphemism for right-wing deputies who seek positions and influence in the government, in any government. To the limits that this way presents to anticipate the end of this administration, add the costs that it brings to democracy itself. The legal-political solution expands the already hypertrophied institutional position of the Federal Supreme Court and rehabilitates a narrative of criminalization of politics that reinforces the generalized delegitimization of the political system.

Impeachment is the political route, par excellence, for anticipating the end of mandates. It is an instrument thought to be exceptional, but whose distortion has tainted its contours with a blow. Here is the third way to replace Bolsonaro with Mourão. The president would be tried for a crime of responsibility. What Dilma lacked is left in Bolsonaro. There are countless acts of the President of the Republic that violate the Federal Constitution. Many are the requests that are currently awaiting manifestation by Rodrigo Maia. The president of the Chamber of Deputies is the one who has the competence to accept the complaint, kicking off a process that goes on to be processed by a commission created for this purpose and, later, to the scrutiny of the Plenary, where 3/5 votes are needed. favorable conditions for the temporary removal of the president. The next stage is the final judgment in the Senate, again by qualified majority. The difficulties here are also diverse. There is a certain consensus that the “perfect storm” has not yet formed, the sum of factors necessary for impeachment: economic and political crisis, low popularity and some level of support for the vice president, who would assume the highest political post in the country. country.

Although Bolsonaro's approval has been deteriorating, the resilient support for his government does not clearly signal the population's repudiation – which would largely mobilize congressmen. Even isolation measures make large public demonstrations extremely difficult – events that commonly mark processes of this type. Trying to avoid further erosion of his authority, Bolsonaro has sought to negotiate with more conservative parties, seeking to secure enough votes to prevent the formation of the qualified majority necessary for his removal. Furthermore, as warned by Fernando Limongi and Argelina Figueiredo (Folha, 30/04/20), there seems to be no willingness by the vice president to signal to the political elite that it can advance, leaving it “in the dark” regarding important aspects of how it would be a future Mourão government. Impeachment, although it has a legal dimension (the president of the STF presides over the trial in the Senate, for example) is the most politicized way out of a crisis of the magnitude we are facing. This is because it strongly involves the performance of parliamentarians, elected by popular vote.

Finally, there is the most canonical possibility in liberal democracies, which involves the defeat of the government in the 2022 elections. The president would be a candidate for re-election and voters would have the opportunity to put an end to the Bolsonaro era. Paradoxically, the possibility of an electoral dispute is itself threatened by this government – ​​which does not skimp on attacks on democratic institutions. Time is a fundamental dimension here.

Brazil is facing a crossroads and whatever path it decides to take, it involves complex processes. Political leaders and their parties are key actors, but their association with legal actors and some buy-in from the government's military wing seems unavoidable. We are facing the difficult task of removing a president from the Republic – which in presidential regimes is supposed to be an exceptional move – in the midst of a pandemic, which brings even more adverse conditions. This is a map for Democrats – those who take a chance on the front of battle with the clarity of the responsibility they have to ensure that the fall of the Bolsonaro government does not mean the collapse of Brazilian democracy.

*Marjorie Marona is a professor of political science at UFMG. She is a co-editor of the book Justice in Brazil: on the margins of democracy (Arraes)

* Fabio Kerche he is professor of political science at UNIRIO and at IESP/UERJ. He is author of Virtue and Limits: autonomy and attributions of the Public Ministry in Brazil (EDUSP)

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