legal placebo

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By JOÃO HÉLIO FERREIRA PES*

In two years, Bolsonaro issued twenty provisional measures of the placebo effect

Legal norms introduced into the Brazilian legal system with the intention of just pleasing sectors of society or parts of the population, without the slightest concern for their effectiveness, are nothing new. However, in the last two years, this practice has been intensified by the President of the Republic, with the issuing of provisional measures with this placebo effect. Of the 156 Provisional Measures adopted by the Bolsonaro Government in the first two years of government, 20 Provisional Measures, 10 in 2019 and 10 in 2020, were published and entered into force with the force of law, but fulfill the requirements of what can be called a placebo effect rule or legal placebo.

Legal placebo: brief definition

The term placebo originates from the Latin verb “pleasure” which means to please, accept or please. In Latin "placebo” is conjugated in the first person singular of the future, and can be translated into Portuguese as “I will please”. It is exactly in this sense of pleasing that the expression 'legal placebo' is used in this work. Therefore, a placebo norm is that norm that is created with the aim of pleasing, without concern for concrete effects, even without considering the effectiveness of normative commands, that is, without considering the social effectiveness of the norm.

In this text, the term “effectiveness” is adopted with the meaning of “achievement of the norm's objectives”, and it is impossible to verify such scope if it does not focus on aspects specific to legal sociology. Still, the term effectiveness is adopted as a synonym of the expression “social effectiveness”, thus differentiating itself from the expression “legal effectiveness” which, in turn, means applicability of norms in the legal scope without concern for their effectiveness.

Furthermore, the term placebo is widely used in scientific research to indicate a substance similar to the drug substance, but which does not generate any concrete effect related to such substance, and may only generate psychological effects. In the Houaiss Dictionary of the Portuguese language, placebo is defined as “a preparation that is neutral in terms of pharmacological effects, given in place of a medication, with the aim of eliciting or controlling reactions, generally of a psychological nature, that accompany such a therapeutic procedure”[1].

In the area of ​​Health Sciences, the definition of placebo is directly related to the substance without effect. In this sense, “the word placebo is normally used to designate a medication that does not exert any physical effect on the patient, which does not bring any physical benefit to him, but which must have a definite and important psychological effect”[2].

Thus, the expression “placebo effect” means the phenomenon resulting from the use of substances that do not have the necessary properties to cause any concrete physical effect on the patient. Hence:

The placebo effect acts physiologically on the individual, both psychologically and neurologically. From a psychological point of view, expectation, conditioning, learning, memorization, motivation, somatic focus and anxiety reduction are mechanisms that are directly related to the placebo effect. Expectation and conditioning being the best known. Studies show that the presence of a conditioning protocol increases patient expectations.[3]

Among the most well-known types of placebo are: the pure placebo, which is an inert substance such as lactose for people with tolerance to this substance, or sugar or starch tablets, water or isotonic saline solution that physiologically, biologically and organically are inactive; another is the impure, adulterated placebo that contains some active ingredient but has no effect on the patient's illness. The impure placebo must contain a substance that is certainly active, but is given in inappropriate circumstances or in inappropriate dosages.[4]

Therefore, the definition of legal placebo is directly related to the concept of placebo used in the area of ​​Health Science, mainly with the definition of impure placebo, as can be clearly demonstrated.

Before analyzing elements of a legal placebo definition, it is relevant to observe some conjunctural traits that signal the more intense use of placebo norms, notably, in the most recent period in which the propagation of false news prevails, fake news and lies, in short, in what has been called post-truth. Since 2016 the Dictionary Oxford defined “post-truth” as follows: “an adjective related to or evidenced by circumstances in which objective facts are less influential in shaping public opinion than appeals to emotions or personal beliefs”[5].

Therefore, it is easily possible to verify that the new forms of communication, notably through the internet, potentiate the falsification of the policy through the distortion of facts and information. Thus, there is nothing to be surprised about when faced with the phenomenon that is underway in the Brazilian legal system, which is the increased use of placebo effect rules. In this context, the lie is the central element, since the legal placebo only aims to please the addressees of the norm or some specific social sectors, without the guarantee of social effectiveness, that is, the effective implementation of normative commands is irrelevant.

Finally, it remains to outline some characteristics of a possible legal placebo concept. Therefore, legal placebo or placebo legislation is the norm created with the aim of pleasing all the recipients of legal norms or some sectors, such as a certain economic or social sector, without concern for the concrete effects, without considering the effectiveness of the normative commands, that is, without considering social effectiveness. As for legal effectiveness, the validity of the placebo rule is assured as long as the placebo content is not revealed, that is, as long as the placebo effect persists, the rule will be treated as valid. Placebo norms, on the other hand, lose their validity, as legal norms, as soon as the placebo effect ends, with the repeal of the norm or with the declaration of unconstitutionality or, even, in the case of a provisional measure, with the end of its validity.

provisional measures

Provisional measures were included, as a normative species, in the 1988 constitutional text based on the Italian constitutional experience. Article 1947 of the 77 Constitution of the Italian Republic provides for the possibility for the government to adopt provisional measures with the force of law when dealing with extraordinary and urgent cases. The text that regulates the adoption of provisional measures in Italy reads as follows:

Article 77: The Government cannot, without delegation from the Chambers, issue decrees with the force of ordinary law.

When, in extraordinary cases of necessity and urgency, the Government adopts, under its responsibility, provisional measures with the force of law, it must, on the same day, present them for conversion to the Chambers which, even if dissolved, are expressly convened and meet in five days.

Decrees lose their effectiveness from the start if they are not converted into law within sixty days of their publication. However, the Chambers can regulate by law the legal relationships that arise on the basis of non-converted decrees.[6]

It is interesting to note that the Italian text bears significant resemblance to the original text defined by the Brazilian constituent, see in verbs as the text in the 1988 Constitution was written:

Art. 62. In case of relevance and urgency, the President of the Republic may adopt provisional measures, with the force of law, and must immediately submit them to the National Congress, which, being in recess, will be convened extraordinarily to meet within five days .

Single paragraph. Provisional measures will lose effectiveness, as soon as they are published, if they are not converted into law within a period of thirty days from their publication, and the National Congress must discipline the legal relations resulting from them.

On September 11, 2001, coincidentally the date of the attack on the Twin Towers of the World Trade Center in New York City, the collapse of the simplified and failed model of the normative species, called provisional measure, with the approval of Constitutional Amendment No. profound changes were made to transform the provisional measure into a complex and effective normative species, above all compatible with our legal system. This Constitutional Amendment of September 32, 11 introduced a series of procedural and content rules with the aim of reducing the excessive discretion of the President of the Republic in issuing provisional measures with the limitation of matters that may be considered relevant and urgent and, above all, to put an end to the successive and shameful reissues of provisional measures.

Thus, provisional measures can only be edited by the President of the Republic with the justification that they are relevant and urgent content, not prohibited by the rules of the new article 62 of the 1988 Constitution. conversion into law occurs within a maximum of 120 days with approval by both houses of the National Congress. The term of validity of the provisional measure will occur with the rejection that may be expressed, when it is not approved in a vote carried out by the parliament or with the tacit rejection that occurs due to the expiration of the maximum period of validity without the manifestation of approval by the National Congress.

In just over 19 years, from the beginning of the new configuration implemented by Constitutional Amendment No. 32 until the end of December 2020, 1.025 Provisional Measures were edited. This means an approximate average of 53 provisional measures per year. However, in 2020 alone, the Executive Branch adopted 108 provisional measures, 43 of which refer to opening credit, a practice traditionally carried out by governments with the consent of the National Congress, which, after having executed the credit, does not vote on the provisional measure because its purpose has already been fulfilled. The number of provisional measures with this budget feature can be seen in the last column of Table 1, which was prepared with data from the last six years available on the Legislation Portal, on the Presidency of the Republic page.[7]

*31 pending until December 2020. Source: Author based on data from the Legislation Portal/Presidency of the Republic

Still, in table 1 it is possible to observe that 31 of the 108 provisional measures of 2020 were still being processed at the end of December 2020 and that 41 were not converted and 36 were converted into law, which results in 47% approval of the total of 77 referring to the 108 minus 31 in progress. In 2019, the conversion percentage is no different, only 22 were converted, that is, only 46%. In the first two years of the Bolsonaro Government, the percentage of conversion into law is the lowest of the last six years surveyed, according to data presented in Table 1. These percentages of conversion are very different from those verified in previous governments, just see that during the Dilma Government , in 2015 the conversion percentage was 79%; in 2016, Dilma/Temer Government, 70%; in 2017 and 2018, during the Temer government, the percentages of conversion of provisional measures into law were 51% and 55%, respectively. Therefore, it can be seen in Graph 1 that in the last six years the lowest percentage of conversion is verified during the Bolsonaro Government, while in the same period of two years of government the number of provisional measures adopted is the highest in comparison with the others. governments. In the Bolsonaro Government, 2019 and 2020, 156 provisional measures were edited; in the Temer government, 2017 and 2018, there were 104; in the Dilma/Temer government there were 99.

graphic 1

Source: Author based on data from the Legislation Portal/Presidency of the Republic

Therefore, the data from the last six years show that in the two years of the Bolsonaro Government, the number of provisional measures edited exceeds the average of previous rulers and the percentage of provisional measures converted into law is much lower than those verified during the Dilma and Temer governments. These data indicate that at the same time that more provisional measures are edited, fewer provisional measures are approved and converted into law, in a clear signal that this inverse proportionality is the demonstration that provisional measures of placebo effect were adopted.

Placebo effect interim measures

The first provisional measure of the placebo effect issued by the President of the Republic in 2019 was Provisional Measure No. 873 of March 1, 2019, with the purpose of making it difficult for unions to receive optional contributions or union fees. This norm was in effect until June 28, 2019, as expressed by the President of Congress with Declaratory Act No. The placebo effect is easily identifiable due to the flagrant formal unconstitutionality of using the normative provisional measure, without observing the requirements of urgency and relevance, to change rules in force since the implementation of the Consolidation of Labor Laws – CLT, Decree-Law No. 43, of May 2019, 5.452, regarding the deduction of union contributions from the payroll of workers. Furthermore, the manifestation of the purposes of this norm is clear to please the most conservative social sectors that identify labor unions as organizations that oppose the conservative neoliberal measures defended by the Brazilian extreme right.

Among the 20 provisional placebo effect measures issued in 2019 and 2020, as listed in Table 2, the only one that was converted into law by December 31, 2020 was Provisional Measure No. 884, of June 14, 2019, converted into Law No. 13.887/2019. The other conversion into law occurred in 2021 with Provisional Measure No. 996, of August 25, 2020, which was converted into Law No. 14.118/2021. Provisional Measure No. 884/2019, having been converted into law, maintains a legal placebo in force that will only be unveiled on the day its unconstitutionality is declared or the rule that makes registration optional in the Rural Environmental Registry – CAR optional. It should be noted that the Forest Code, Law No. 12.651, of May 25, 2012, created one of the most important instruments for protecting the environment, which is the Rural Environmental Registry, mandatory for all rural properties, with the aim of integrating the environmental information on rural properties and possessions, composing a database for control, monitoring, environmental and economic planning and combating deforestation, setting a specific deadline for all rural properties to be registered. However, Provisional Measure No. 884/2019 amended this rule by providing that the mandatory registration period for rural properties becomes indefinite, that is, it is no longer mandatory. This legal placebo of initiative of the Executive Power, when converted into Law, had the approval of the Legislative Power from the significant representation of the ruralist group, with the clear intention of serving the interests of the economic sector of agribusiness without the slightest concern with the effectiveness of the norm. changed.

Source: Author based on data from the Legislation Portal/Presidency of the Republic

In several provisional measures, the placebo effect is perceived with the government's attitude of disregard for the norm of its own initiative by not making any effort to guide the discussion and voting in the National Congress of the text to be converted into law. When the government is interested in approving a provisional measure, government leaders in parliament, especially the government leader in the Chamber of Deputies, where the processing of provisional measures begins, act to ensure the approval of the matter. However, when the provisional measure is a legal placebo, that is, it was designed only to serve specific social sectors or only to please the addressees of the norm, the conversion into law ceases to be a priority. Thus, the placebo effect becomes transparent with the norm exerting a symbolic effect for a period without concern for its effectiveness over time in an indeterminate way.

Among the provisional measures that the government neglected in 2019 and 2020, Provisional Measure No. 895, of September 06, 2019, stands out, which established the benefit of paying half price for students, the elderly, people with disabilities and young people from fifteen to twenty-nine years of age demonstrably lacking in artistic, cultural and sporting events. Provisional Measure No. 902, of November 5, 2019, which authorizes the Executive Branch to transform the Casa da Moeda autarchy into a public company, is a legal placebo insofar as it signals to market agents the possibility of a future privatization of the Casa da Moeda Moeda and other state-owned companies. In the same sense, it is Provisional Measure No. 958, of April 24, 2020, which establishes rules for facilitating access to credit and mitigating the economic impacts resulting from the pandemic, with the aim of easing the requirements imposed on its
concession, waiving the registration of contractual instruments and waiving the presentation of certificates of good standing. Another similar to the latter is Provisional Measure No. 992, of July 16, 2020, which facilitates access to credit for micro and small and medium-sized companies. It is also possible to mention Provisional Measure No. 922, of March 3, 2020, which authorizes the hiring of retired public servants for a fixed period of time, edited to imply that the government was concerned about the situation faced by the National Institute of Social Security – INSS-, which has a large volume of requests for social security and assistance benefits dammed up, awaiting analysis for response to interested parties. The indisputable demonstration that the government made no effort to approve Provisional Measure No. 922 is the fact that Provisional Measure No. 923, published in the Official Gazette one day after the publication of the previous one, was converted into Law No. 14.027, of 20 of July 2020, to establish rules regarding the free distribution of prizes through a draw, gift certificate, contest or similar operation, carried out by concessionaires or permissionaires of broadcasting services or by civil society organizations through digital platforms, aiming to support the funding the investment in broadcasting technology, leveraging the audience of the aforementioned concessionaires and encouraging interest and an increase in viewers.

In 2019, some provisional measures with a placebo effect can be highlighted due to the repercussions they had in the media. Of the 48 provisional measures issued that year, 26 were not converted and of these 9 can be classified as a legal placebo, with only one being converted into law, as shown in Table 2. Provisional Measure No. 904, of November 11, 2019, which Provides for the Extinction of the Compulsory Insurance for Personal Injuries Caused by Motor Vehicles on Land Roads - DPVAT, in addition to having great repercussions, it was a measure that caused immense confusion, since during the period in which thousands of people were in effect did not pay the insurance, the which caused some inconvenience later. On December 20, 2019, the Federal Supreme Court, by majority, granted a precautionary measure, in ADI 6262[8], to suspend the effects of Provisional Measure 904, due to its formal unconstitutionality when used to legislate matters subject to a supplementary law. Provisional Measure No. 904 had its term ended on April 20, 2020 because it was not appreciated by the National Congress. That same year, another measure adopted by the government just to have an impact was Provisional Measure No. 905, of November 11, 2019, which instituted the Green and Yellow Employment Contract and amended labor legislation. An initiative by the Ministry of Economy aimed to deepen the flexibility of labor rights, already intensely attacked by the labor reform approved during the Michel Temer administration, but with the indication, according to the explanatory statement signed by Minister Paulo Guedes, that job opportunities would be created and business, which would generate income and improve the population's quality of life. This provisional measure, in addition to including various contents that confronted the Constitution, contained a symbolic content that signaled the illusion of resolving or alleviating the serious problem of unemployment in the country. Therefore, the placebo effect, with a high degree of harmfulness, was only unveiled with the end of its validity, which occurred by revocation by Provisional Measure No. 955, of April 20, 2020.

In the year 2020, of the 10 provisional measures listed in Table 2, the content of some provisional measures that the mainstream media allocated significant spaces for its dissemination stands out as a legal placebo, with wide repercussions. Provisional Measure No. 966, of May 13, 2020, which provides for the accountability of public agents for actions and omissions in acts related to the covid-19 pandemic, was questioned not only for the attempt to exempt public agents for errors or omissions in decision-making to fight the pandemic, but by trying to define in a distorted way what would be a gross error. This provisional measure had as its main placebo content the authorization for public agents to act against the recommendations of science in the fight against the coronavirus pandemic, aiming to legitimize the denialist militancy that uses social networks to spread its ideals. This placebo content was unveiled based on the decision of the Federal Supreme Court that, when analyzing the seven lawsuits filed[9] restricted the scope of the provisional measure by establishing that the public agent must observe what organizations and recognized entities determine to take measures to combat the pandemic and that a “gross error”, as stated in the text of the MP, is not to observe scientific and organizational criteria recognized nationally and internationally, especially the World Health Organization - WHO.

Another of great impact in 2020 was Provisional Measure No. 996, of August 25, 2020, which established the Casa Verde e Amarela Program, converted into Law No. 14.118, of January 12, 2021. legislation, justifies the urgency of adopting a provisional measure with the force of law to improve existing housing programs, mainly the so-called “Programa Minha Casa, Minha Vida”, regulated by Law nº 11.977. on July 7, 2009. In the same statement of reasons for the creation of the Casa Verde e Amarela Program, arguments were used that would serve to justify the implementation of an unprecedented housing program, such as boosting the economic sector of Civil Construction and fostering employment and income generation, however, as it is a housing program that only improves the previous one, basically changing the name, it is unbelievable that the text of the justification contains excerpts like the following:

Investments in the housing sector boost the civil construction sector and foster the creation of new formal jobs and income generation. In addition, they have the potential to reduce the incidence rates of diseases related to inadequate housing, including tuberculosis, similar to COVID-19, a pandemic that is currently plaguing Brazil and the world. These factors combined well justify the institution of the legal framework, now proposed, on an emergency basis.[10]

When analyzing the content of Provisional Measure nº 996, now Law nº 14.118/2021, it is verified in article 25 that the operations with benefit of a housing nature managed by the federal government will integrate the Casa Verde e Amarela Program since August 25, 2020 , the date of entry into force of the provisional measure. Therefore, the legal placebo present in the norm that created the Casa Verde e Amarela Program is the use of a different name from the existing housing program to imply that there is a new public policy initiated by the Federal Government to facilitate the population's access to decent housing.

It should also be noted that the Bolsonaro Government issued provisional measures with an authoritarian content and at the same time signaling rejection of the existing order. This is, among others, Provisional Measure No. 979, of June 09, 2020, which provides for the appointment of directors pro tempore for federal educational institutions during the period of the covid-19 pandemic. The placebo effect is in the government's intention, exposed in the justification, signed by former Minister of Education Abraham Weintraub and sent to the National Congress, to designate, on an exceptional basis, a Rector and Vice-Rector pro tempore, for Federal Universities, and Rector for Federal Institutes and for Colégio Pedro II, during the period of public calamity, resulting from the Covid-19 pandemic. This measure, based on the suspension of classes and consequent damage to the election process, disregards university autonomy and the democratic nature of election processes in federal education. But the main objective is to point to the break with the established order, not respecting the institutional rules of democratic election for the choice of leaders of federal education institutions and, also, of demonstration of power when choosing as deans people committed to authoritarianism and with a vision of centralized public administration consistent with the model implemented in Germany and Italy in the interwar period. In this regard, it is worth remembering the lessons of Ugo Palheta[11] by stating that the fascist dynamic, in the initial stage, seeks to give a subversive appearance and presents itself as an alternative to the existing order, in a demonstration of being a force capable of challenging the “system”. It is precisely with this aim in mind that Provisional Measure 979 was edited, because in the midst of a pandemic, a challenging rule is adopted that subverts the established institutional order. It was published on June 10, 2020 and because it was flagrantly unconstitutional, both formally and materially, it was returned by the President of the National Congress and generated the issue of a revocable provisional measure, Provisional Measure No. 981, of 12 of June 2020.

Conclusion

In addition to pleasing some sectors, the purpose of the legal placebo is to deceive all the addressees of the norm, making everyone understand that there is a valid norm that can be effective in what it proposes. Sometimes, the purpose of the placebo norm is not the one that is expressed in the justification for its adoption, but implicit, in a veiled way, aiming to meet other non-republican interests, interests that are not expressed in the legislative text. These spurious interests are carried out by the same holders of the interests present in the falsification of the policy, the distortion of facts and the manipulation of information.

Therefore, in the last two years, the intensification of the use of provisional measures of placebo effect by the President of the Republic does not clash with the way in which the Federal Government is acting, with the adoption of economic policies that aim to meet the interests of the Brazilian and foreign elites, with the prioritization of the customs agenda to meet the interests of the conservative sectors of society, with the dissemination of hate speech and the denial of science, all with the intention of confronting the established rules in order to create the conditions for a regime other than the democratic one.

*João Hélio Ferreira Pes is a law professor at the Franciscan University-UFN (Santa Maria-RS).

Notes


[1]HOUAISS, Antonio; VILLAR, Mauro de Salles. Houaiss dictionary of the Portuguese language. Rio de Janeiro: Editora Objetiva, 2009, p. 1505.

[2]COLEMAN, v. On placebos. Nurs. Mirror, Sussex, 139(13):79, Sept. 1974, p. 79.

[3] ALENCAR, Camila Oliveira de; CORTELLI, Jose Roberto. Current considerations about the use of the placeto: a literature review. SOBRAPE Magazine, September 2014 – volume 24. Available at Accessed on 2014 Dec. 2014.

[4] SHAPIRO, AK The placebo effect in the history of medical treatment: implications for psychiatry. Amer. J. Psychiatry, Washington, 1(16):4-298, Oct. 304, p. 1959-298.

[5] GENESINI, Silvio. Post-truth is fake news. USP Magazine, São Paulo, n. 116, p. 45-58, January/February/March 2018, p. 47.

[6]Costituzione de la Repubblica Italiana. Articolo 77: Il Governo non può, senza delegazione dele Camere , emanare de creti che abbiano valore di legge ordinaria. When, in casi straordinari di necessità and di urgentza, the Government adopts, sotto la its responsabilità, provvedimenti provvisori com forza di legge, must il giorno stesso presentarli per la conversione alle Camere che, anche se sciolte, sono appositando convene e si riuniscono entre cinque giorni. I decreed pardono efficacy sin dall'inizio, se non sono convertiti in legge entre sixty giorni dalla loro pubblicazione. Le Camere podeno tutta via regolare com legge i rapporti giuridici sorti sulla base dei decreti non convertiti.

[7] BRAZIL. Presidency of the Republic. Legislation Portal. Available in http://www4.planalto.gov.br/legislacao/portal-legis/legislacao-1/medidas-provisorias/2019-a-2022. Accessed on 31 Dec. 2020.

[8] BRAZIL. Federal Court of Justice. ADI 6262. Available in http://portal.stf.jus.br/processos/detalhe.asp?incidente=5817441. Accessed on 11 Jan. 2021.

[9] The Direct Actions of Unconstitutionality were filed by the Sustainability Network (ADI 6421), by Citizenship (ADI 6422), by the Socialism and Freedom Party (ADI 6424), by the Communist Party of Brazil (ADI 6425), by the Brazilian Press Association (ADI 6427 ), the Democratic Labor Party (ADI 6428) and the Green Party (6431).

[10] BRAZIL. Provisional Measure No. 996, of August 25, 2020. Establishes the Casa Verde e Amarela Program. Exposition of Reasons. Available in http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2020/Mpv/mpv996.htm. Accessed on 3 Jan. 2021.

[11] PALETTE, Ugo. Fascism. Fascism. Antifascism. Contretemps: Revue de critique commniste. ISSN 2496-5146, Paris, Sept. 2020. Available at: https://www.contretemps.eu/fascisme-fascisation-antifascisme/. Accessed on 22 Nov. 2020.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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