Pandemic lays bare constitutional struggle for power in Brazil


It only took five days for the Supreme Court of Brazil to spring into action when the Jair Bolsonaro Last month, the administration canceled the census, citing the Covid-19 pandemic and budget constraints.

Judge Marco Aurélio ordered the government to reverse course and conduct the ten-year constitutional inquiry, which had already been postponed once last year. “It is up to the Supreme Court to impose the adoption of measures to make demographic research feasible,” he said.

For many, the decision – like many others made by the highest court during the coronavirus pandemic – was welcome in favor of scientific and evidence-based decision making. But it was also a reminder of how the highest judicial body had become active in Brazilian politics.

Since Bolsonaro – a former captain of the far-right army – came to power more than two years ago, the tribunal better known as the STF has established itself as a bulwark against what some claim to be. the excesses of the populist leader.

For the judges and those close to the court, this militant position is authorized by the far-reaching constitution of Brazil and justified by the autocratic tendencies and the denialist attitude of the president towards the pandemic. For the critics, the judges are engaged in a “judicial activism” which delegitimizes the decisions of the court.

Those in between see a vicious cycle, with each side feeding on each other and gradually weakening Brazil’s already fragile institutions.

“It is obvious that the STF has been militant for some time [and] has increasingly become the case. The fundamental problem right now is that we have a framework which is just below any standard, which is totally dysfunctional, ”said Filipe Campante, professor at Johns Hopkins University.

“When the executive is completely incapable of performing basic functions, then the other powers are forced to intervene. But that feeds the dysfunction because they’re not supposed to. This feeds the antagonism that Bolsonaro lives on.

Campante says an example of this is the census, which is an “extremely fundamental function of the state. [that] the executive has shown itself unable and unwilling to do so ”.

But the tension between the 11-member Supreme Court and the executive branch has been exposed even harsher by the Covid-19 pandemic, which has already claimed the lives of 430,000 Brazilians.

Over the past year, the STF has issued 9,000 decisions related to the pandemic, according to a court tally. Most of these decisions supported traditional scientific approaches to tackling the virus, including the use of lockdowns and social distancing and the importation of vaccines.

They angered Bolsonaro, however, who consistently downplayed the severity of the disease and attempted to reopen local economies shut down by state governors. Tensions peaked last year when the populist leader joined rallies calling for the court to be closed. He has since pushed allies in Congress to attempt to remove the STF judges.

“In Brazil, we are living through a very unique moment with a lot of conflict and this has been greatly reinforced by the pandemic. There is a clear divide between those who have tried to minimize the disease, including those close to the government, and those who advocate caution, ”Judge Gilmar Mendes told the Financial Times.

“The tribunal has been the target of much criticism from people who support these denial measures. They say we are usurping the skills that should be executive power, but we are sure we have fulfilled our role under the constitution, ”said Mendes, himself accused by critics of politicizing work.

Judges of the Brazilian Supreme Court are appointed by the president and serve until their retirement at the age of 75. Of the 11 bench members, seven were appointed by the former administrations of the Left Workers’ Party. One was nominated last year by Bolsonaro.

Much of the court’s power derives from the size and scope of Brazil’s constitution, which, at over 70,000 words, is one of the longest and most detailed in the world. The scope of the charter allows the STF to judge the legality of a wide range of issues.

“This places the STF at the center of the Brazilian political debate. If a president – who can even count on the support of the legislature – attacks the constitution, it is the role of the court to impose limits, ”said Eloísa Machado, professor of constitutional law at the Getúlio Vargas Foundation.

Opponents say, however, that the court’s interpretation of the constitution increasingly amounts to “judicial activism,” which delegitimizes its authority.

Uziel Santana, the president of Anajure, a evangelical the lawyers association, said an STF decision last month allowing state and city authorities to ban in-person religious services during the pandemic was “technically and legally flawed.”

Brazilian Supreme Court Judge Edson Fachin Edson Fachin overturned the corruption convictions of former President Luiz Inácio Lula da Silv. © AFP via Getty Images

“It is not for the Supreme Court to act as a legislator, [but] more and more in recent years, it legislates. This activism ends up interfering too much in the sphere of another power, and that is not a good thing in a democratic rule of law, ”he said.

For Santana, a specific problem was the frequency of so-called monocratic decisions, where only one justice can rule on issues with broad ramifications for society. Between 1988 and 2018, more than 72% of cases ended in a monocratic decision, according to data from the Getúlio Vargas Foundation.

More recently, Judge Edson Fachin single-handedly overturned the transplant convictions of former President Luiz Inácio Lula da Silva, restoring the left-wing leader’s political rights ahead of next year’s elections. The decision was then confirmed by a plenary vote following an appeal by state prosecutors.

“The US Supreme Court has become deeply politicized on one level, but Brazil is even worse because you don’t have parties, you have interests. Judges have political interests and make decisions based on political interests, ”Campante said.

“You come to a situation where everything they decide loses its legitimacy. You think, “What are the political interests behind all of this?”

Additional reporting by Carolina Pulice



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