Pandemic exposes a constitutional power struggle in Brazil

It took only five days for Brazil’s supreme court to take action when the Jair Bolsonaro the administration canceled the census last month, citing the Covid-19 pandemic and budget constraints.

Judge Marco Aurélio ordered the government to reverse course and make the ten-year survey mandatory for the constitution, which had already been postponed once last year. “It is up to the Supreme Court to impose measures to make demographic research viable,” he said.

For many, the ruling, like many other rulings adopted by the Supreme Court during the coronavirus pandemic, was welcomed in favor of scientific, evidence-based decision-making. But it was also a reminder of the activity of the highest judicial body in Brazilian politics.

Since Bolsonaro, a former far-right army captain, came to power more than two years ago, the court best known as STF has become a bulwark against what some claim are the excesses of the STF. populist leader.

For judges and those close to the court, this activist stance is allowed by Brazil’s powerful constitution and backed by the president’s autocratic tendencies and denialist attitude toward the pandemic. For critics, judges engage in “judicial activism” that delegitimizes court decisions.

The middle ones see a vicious cycle, with each band feeding each other and gradually weakening Brazil’s already fragile institutions.

“It is obvious that the STF has been an activist for a long time [and] it has become more and more so. The fundamental problem right now is that we have an executive that is just below any norm, which is totally dysfunctional, ”said Filipe Campante, a professor at Johns Hopkins University.

“When you have the executive completely unable to perform basic functions, the other powers are forced to intervene. But this again fuels dysfunction because they are not supposed to do so. It fuels the antagonism of what Bolsonaro is going through.”

Campante says an example of this is the census, which is a “basic function of the state [that] the executive has proved incapable and unwilling to do so ”.

But tensions between the 11-member Supreme Court and the executive branch have been exposed in even clearer terms by the Covid-19 pandemic, which has already killed 430,000 Brazilians.

In the last year, the STF has made 9,000 decisions related to the pandemic, according to a court account. Most of these rulings supported major scientific approaches to fighting the virus, including the use of blockages and social distancing and the importation of vaccines.

However, they have annoyed Bolsonaro, who has constantly downplayed the severity of the disease and tried to reopen local economies protected by state governors. Tensions peaked last year when the populist leader joined rallies calling for the court to close. He has since pushed Congress allies to try to prosecute STF judges.

The U.S. Supreme Court has been deeply politicized to some degree, but Brazil is even worse because you have no parties, you have interests.

“In Brazil we live in a very unique time and with many conflicts and this has been greatly improved by the pandemic. There is a clear division between people who tried to minimize the disease, including people close to the government, and those who recommend caution, “Judge Gilmar Mendes told the Financial Times.

“The court has been the target of much criticism from people who support these denialist measures. They say we are usurping powers that should be from the executive branch, but we are confident that we have fulfilled our role within the framework of the constitution, ”said Mendes, who is accused by critics of politicizing labor.

Brazilian supreme court judges are appointed by the president and serve until retirement at the age of 75. Of the 11-member bench, seven were appointed by the former left-wing Labor Party administrations. One was appointed last year by Bolsonaro.

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

“This puts 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, the role of the court is to impose limits,” said Eloísa Machado, professor of constitutional law of the Getúlio Vargas Foundation.

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

Uziel Santana, the president of Anajure, an evangelical lawyers’ association said a decision by the STF last month that allowed state and municipal authorities to ban face-to-face religious services during the pandemic was “technically and legally flawed.”

“It is not up to the Supreme Court to act as a legislator, [but] every time in recent years he has been legislating. This activism ends up interfering too much in the sphere of another power, and this is not good in a democratic state governed by the rule of law, ”he said.

For Santana, a specific problem was the frequency of so-called monocratic decisions, in which a single 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 alone overturned the grafted sentences of former President Luiz Inácio Lula da Silva, restoring the political rights of the left-wing leader ahead of next year’s election. The decision was later confirmed by a plenary vote following the appeal of state prosecutors.

“The U.S. Supreme Court has been deeply politicized at some level, but Brazil is even worse because you have no parties, you have interests. Judges have political interests and make decisions based on political interests,” Campante said.

“You get to a situation where anything you decide loses legitimacy. Think, ‘what are the political interests behind this’? “

Additional reports by Carolina Pulice