Tasks of the reconstitutionalization of Brazil

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By LUIS FELIPE MIGUEL*

The electoral campaign that has just ended reveals the dimension of the impasse in which Brazil has been placed.

Lula assumes the presidency on the 1st of January with a Herculean set of tasks to fulfill. After all, the last few years have been one of accelerated destruction of the country. The new president needs to reinsert Brazil in the world, restore the State's social commitments, resume the path of development, contain the environmental collapse and pacify the political dispute. One challenge, in particular, cuts across all the others and is crucial for the future of our democracy: Lula needs to lead the process of re-constitutionalizing Brazil.

The defeat of Jair Bolsonaro removes the risk of an authoritarian closure from the horizon, but there is still much to be done for the 1988 Constitution to return to force in the country. It is, in the first place, to restore the division of powers, the principle of equality before the law and the consensus on respect for electoral results, pillars of the democratic and liberal order that one wanted to build after overcoming the dictatorship of 1964 Of course, with the coming to power of a group openly nostalgic for the military regime, these principles would come under attack.

But it should be remembered that the emptying of the Constitution did not start with Jair Bolsonaro. The starting point is the 2016 coup – when groups dissatisfied with the reelection of Dilma Rousseff decided to sponsor a “turn of the tables”, overthrowing her in an impeachment process that, from legality, preserved only the facade. The basic element of electoral democracy was violated there, the one that determines that the most voted are sworn in and govern.

But it was not just that. Operation Lava Jato, at the time with the complacency of the superior courts, turned the Judiciary into an instrument of political persecution, revealing a biased application of the law. In 2018, Lula’s “preventive impeachment”, preventing him from running for election, with the far from discreet participation of the military leadership, stamped once and for all the country’s situation as a State of exception.

Institutional disorganization has been evident since the coup. One episode is illustrative: in December 2016, Justice Marco Aurélio Mello, of the Federal Supreme Court, determined the removal of Renan Calheiros from the presidency of the Senate. Renan Calheiros refused to comply with the determination, was supported by the Senate board and the Supreme Court ended up accepting the situation, revoking Marco Aurélio Mello's decision. In short, the relationship between the powers took the form of an arm wrestling match, in which whoever could win the most. The Bolsonaro presidency, with its threats, bravado and abuses, followed by “warnings” and dinners aimed at “harmonization” between the powers, all defined according to the resources and bluffs thrown at the table, opened up a situation in which constitutional rules do not prevailed more.

The electoral campaign that just ended reveals, with unique clarity, the dimension of the impasse in which Brazil has been placed. In relation to many of Jair Bolsonaro's abuses, starting with the use of the public machine in favor of his candidacy, the thinly veiled incentive to political violence and the reiteration of coup threats, institutions opted for leniency - they did little or nothing to curb it. them. It fell to Minister Alexandre de Moraes to take on the task of confronting disinformation, the centerpiece of the re-election strategy, through proactive attitudes, which – although justified by the urgency of the moment – ​​do not provide the basis for a stable legal order.

The burning issue of freedom of expression serves as a perfect example. Yes, the extreme right's cries of “censorship” are hypocritical, since it was betting on the deliberate dissemination of lies with the aim of distorting the popular choice. Quick and energetic action was needed to avoid irremediable damage to the electoral process. But there is still a need to define the legal framework that allows establishing the sanity of public debate, without compromising the freedom of agents and without depending on the will of any sheriff of the moment.

It is fundamental, therefore, to redraw the boundaries between the powers and to define the attributions of each one, allowing them to give predictability to the political dispute and social life as well as reestablishing the balance of the system of mutual brakes, which, in the liberal arrangement , is the guarantee of non-tyranny. But it is necessary to take into account the fact that institutions are “populated”, that is, they do not operate automatically, but through the agents who hold positions in them. This means that their operation is also dependent on the human material that composes them.

In the case of Brazil, it is clear that the quality of this material is low. A good portion of Congress is made up of people not only intellectually unskilled, but devoid of any sense of public duty; and the same can be said of superior courts - needless to cite examples. The free-for-all into which the policy was transformed removed the last inhibitions for these people to behave in an even more predatory and truculent way, generating an authentic vicious circle.

An extra element of the Brazilian institutional confusion is the growth of the military political presence. A certain “Villas Bôas doctrine”, elaborated by the former commander of the Army, would determine that the Armed Forces should be incorporated as “normal” interlocutors in the political debate. But they are clearly not “normal”, for the simple reason that they are armed. His interventions always have a threatening tone. If they become involved in politics, there is a risk that they will restrict or protect civil power.

And, no matter what their doctrines say, the Brazilian military does not consider itself a political interlocutor like the others. His interventions always date the myth of “moderating power” – the fanciful idea that the Armed Forces have the final say in disagreements between the powers of the Republic. They also like to claim a special patriotism, inaccessible to civilians. However, they commonly act, as we see now, not in defense of any idea, even a mistaken one, of the Fatherland, but to protect petty advantages.

From the veiled support for the 2016 coup to the infamous tweet by Villas Bôas himself (threatening the Supreme Court if he granted habeas corpus to Lula, in 2018) and from there to the mess in the government of Jair Bolsonaro, the Brazilian Armed Forces only confirmed their unadaptation to the democratic regime – in which their political role is to obey the civil power and nothing else. If it faces the issue, establishing the political silence of the military as an unavoidable principle, punishing coup demonstrations and nostalgia for the dictatorship, the new government will certainly suffer tensions. But, if it repeats what was done in the transition of the 1980s and chooses not to face it, it will condemn Brazil to a limited, protected and possibly ephemeral democracy. The deep demoralization of the military corporation, given the vexations it has accumulated in recent years, perhaps provides the window of opportunity for this node, finally, to begin to be untied.

There is a last challenge, no less important, to the task of re-constitutionalizing the country. It is about extending the validity of constitutional guarantees to the geographic and social spaces where, even during the best moments of Brazilian democracy, they had difficulty entering: the peripheries, indigenous territories, the conflagrated areas of the countryside, the workplaces . This is as much a question of justice as it is of political pragmatism. After all, it is the strength of dominated social groups that ultimately keeps democratic practices alive. The more these groups were able to enjoy the benefits that democracy brings, having guaranteed rights and conquering a voice to be heard in decision-making processes, the greater their interest in fighting to preserve it.

* Luis Felipe Miguel He is a professor at the Institute of Political Science at UnB. Author, among other books, of Democracy in the capitalist periphery: impasses in Brazil (authentic).

 

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