By ALEXANDRE LC TRANJAN*
It is not the form, that is, respect for the proper procedural rite, that gives legitimacy to the deposition of a leader
Much has been said about the genocide committed during the Bolsonaro government, linked to the massive six hundred thousand national deaths during the Covid-19 pandemic. In addition to the obvious drama experienced by all the families involved, in addition to the president's contempt for such suffering, here will be discussed, briefly, the criminal framework of his actions. After this analysis, it will be necessary to kick the ladder on which we have climbed, in order to realize how little benefit this type of discussion brings us.
To begin with, it is necessary to keep in mind that “genocidal” is not only a nickname we give our enemies, but also the designation for those who incur a specific criminal type. Namely, according to Law 2889, of 1956, art. 1st, is genocidal (that is, commits genocide):
Whoever, with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) kill group members;
b) causing serious harm to the physical or mental integrity of members of the group;
c) intentionally subject the group to conditions of existence capable of bringing about its total or partial physical destruction;
d) adopt measures aimed at preventing births within the group;
e) forcibly transfer children from the group to another group;
It strikes the eye, first of all, that the type contains a special subjective element (what the old doctrine would call “specific intent”), namely, the “intent to destroy […] a national, ethnic, racial, or religious group”. This is an obvious impediment to criminal accountability, as it requires an underlying will to conduct, the proof of which is difficult, if not impossible.
But we must not be hasty: although it brings evidential difficulties, it is a limitation that guarantees a minimum of legal certainty in relation to the presumption of innocence of individuals who may, perhaps, be accused of this crime. Do I need to speak more clearly? Well, when the first accusations of "genocidal" came to light, Bolsonaro's minions soon retorted with an argument, in the best style you quoque that the right consolidated as its master litany, that “the PT was the genocide, because the money from corruption could be invested in hospitals and, well, a lot of people died without a bed in the SUS”. As ridiculous as such a rhetorical maneuver sounds, if there were not the aforementioned requirement of such specific intent, there would be room for it to be placed in a serious discussion.
But with Bolsonaro it is different. This is not an indirect impact of a bad economic policy — although I cannot remember what it was, and the data on the evolution of the Brazilian GDP do not help much to refresh my memory —, as boasted by the bourgeoisie, or of very traditional practices corrupt institutions that were instrumentalized especially in the context of petismo to endorse the judicially overdetermined coup action, both in the impeachment of Dilma and in prison sentenced by an alleged judge and ratified by alleged judges to prevent Lula from running for office in 2018, giving victory to his opponent. In the case of Bolsonaro, in addition to corruption, still present, stronger than ever, it is, moreover, an action directed against the population, in favor of the spread of the virus and “justified” by the most outlandish pretexts possible[I].
Encouraging people to leave the house, ridiculing those who take precautions, discrediting vaccines, not wearing a mask and even removing the one of a boy who was at an event[ii] “agglomerative”, an agglomeration that, among many others, promoted, in short, a series of acts against basic health measures by which the president, from whom one would expect a kind of care for his people — I mean, of um President, not this idolater of torturers—did his best to spread disease and death.
More than that, Bolsonaro also acted as he could against measures to contain contamination by Covid, in a series of acts in favor of the widest possible opening of trade (for example, the bizarre broadening of the concept of “essential activity”), all for the sake of the sacred economy. Yes, that same one, which hasn't stopped getting worse since the moment Bolsonaro's troupe put their boots on Planalto.
I believe that this is enough for us to consider that the president committed intentional conduct to “destroy, in whole or in part, a national group”, killing (that is, facilitating death, omitting himself in his duty to prevent it, favoring the spread of a potentially lethal virus), or causing “serious physical harm” to his own people.
Even for traditional political philosophy, which only blesses the sovereignty of the State and its government, there is a limit which the individual, in his duty to the sovereign, is not obliged to exceed. This limit is precisely that of the threat to its physical integrity. If the main function of the social pact, by which citizens surrender their freedom, is precisely the guarantee of their security, there is no reason for a political regime to subsist that does not guarantee, or worse, that threatens the health of its subjects. For Locke, Hobbes and their most varied followers, the revolution takes on an air of self-defense, and becomes a means by which the people guarantee their own survival.
One could think of the role of criminal law as a defense mechanism for the people. But its performance, unlike what the PT strategy had in mind, is limited in itself because it is conditioned by the forms of capital. The law, that is, the legal form, in general, and this is the core of this analysis, derives from the commodity form, being molded from the pillars of contractual freedom (vehicle of the subsumption of labor to capital) and the protection to private property. It is naive to believe in a revolutionary right, obviously, since as a form determined by capital, it does not present any possibility of transplanting it. But it is also foolish to believe in a neutral law, which will not take the side of the bourgeoisie, both in ruptures and in everyday life, through its operators ideologically molded by it. We know what happened, by legal means, with former President Lula in 2018, part two of the second coup d'état that the CIA presented Brazil with[iii].
From part one, in 2016, we gained the obvious teaching that it is not the form, that is, respect for the proper procedural rite, that gives legitimacy to the deposition of a leader. But also that the very idea of legitimacy is discussed, because it is not a fair and universal right that arises, but specific conditions in space and time and materially determined by the mode of production. The deposition of a president from the forms of capitalism depends solely and exclusively on the Zeitgeist [spirit of the time], which we should translate as “the will of the bourgeoisie” at the moment of the coup. If the way of regulating the PT's developmentalism no longer corresponded to the most efficient maximization of the mercantile valorization process and expansion of the profits of the capitalist class, let a coup d'état come along that put Brazil on the rails! If there was no liberal candidate in a position to win the 2018 elections, and if Lula had a real chance of returning, then the coup would unfold in a rigged election — ironically, in this Bolsonaro is right — and that overdetermination would now be fascism . Why not? Fascism is capitalism's plan B when it can no longer wear a suit and shoes, because it's time for boots[iv].
That's why begging the mayor for a vote on impeachment Bolsonaro sounds as silly as we all felt when we said there wasn't going to be a coup, and there was; when we shouted Temer out, and he stayed until the end of 2018; when #elenão was on our social networks, and he came. It is also naive to have faith in the judiciary, which constantly puts its hands on the heads of (and holds hands with) (because it itself is part of) coup plotters, as the STF did with Moro, as the TSE did with Bolsonaro. Nor did the CPI deliver what it promised when it made us expect heads to roll. Because heads don't roll in the metaphorical sense.
The absence of any exaggeration in imputing Bolsonaro as a genocide is evident. But so what?, as he would say. We are very far from any exaggeration, any radicalism, and also from any possibility of effective social transformation, when we stick to whining about its genocide and waiting for the justice of the robed petty bourgeois.
In 2022, when he finds himself in the dilemma between trying phase three of the coup or dropping the banner and playing piano, as Trump did, let us not wait for the symphony without preparing for the worst. We chickened out in 64. In 22, for the memory of six hundred thousand lives, added to those who did not flee the struggle in the darkest twenty-one years of our history, it cannot be the same. But let us also bear in mind that defending democracy is defending a form that, like fascism, originates in capital. To this, the crisis is immanent. And new ones will come, accompanied by new coups, redemocratizations, and so on. One cannot escape the cycle by defending one of its stages. We shouldn't choose between being cattle or playing opposite him.
*Alexandre LC Tranjan is a law student at the University of São Paulo (USP).
Notes
[I] Cf. revealing report on the subject in https://brasil.elpais.com/brasil/2021-01-21/pesquisa-revela-que-bolsonaro-executou-uma-estrategia-institucional-de-propagacao-do-virus.html. Accessed on November 03, 2021.
[ii] View https://www1.folha.uol.com.br/poder/2021/06/bolsonaro-abaixa-mascara-de-menino-e-pede-para-menina-retirar-protecao-contra-o-coronavirus-no-rn-assista.shtml. Accessed on November 04, 2021.
[iii] View https://www.lemonde.fr/international/article/2021/04/09/au-bresil-une-operation-anticorruption-aux-methodes-contestables_6076204_3210.html. Accessed on November 16, 2021.
[iv] This entire analysis can be found, in greater detail and depth, in MASCARO, Alysson Leandro. Crisis and Coup. São Paulo: Boitempo, 2018. The theoretical basis of this work is found in Idem, State and Political Form. São Paulo: Boitempo, 2013. This, in turn, is largely based on PACHUKANIS, Evguiéni. General Theory of Law and Marxism. Translation by Paula Vaz de Almeida. São Paulo: Boitempo, 2017.
