Rule of Privilege
In Brazil, the Republic has crossed the Rubicon
The image of Brazil as seen by the world, in the last few decades, oscillated between growth surges amid commodity prices booms, corruption scandals, and recession hardship. More recently, however, it has been associated with the figure of Jair Bolsonaro, a president who became known for his mistaken attitude during the pandemic, as well as being held responsible for the acceleration of the Amazon jungle’s deforestation. He is also frequently labeled by major media vehicles, both in and outside Brazil, as authoritarian, and as a person who represents a major threat to rule of law. One may debate how well or badly Bolsonaro has handled Brazil’s public health and environment. The charge that he poses a threat to the rule of law is in many ways a more profound allegation.
The proposition that the president represents a risk to rule of law is rooted in Bolsonaro’s past as a house representative and former army captain. During his seven mandates in Congress, he frequently praised the presidents of the military period, which lasted in Brazil from 1964 to 1985. More recently, during his presidential term, those who claim Bolsonaro represents a threat to rule of law have pointed to his recurring participation in popular events and manifestations, in some of which groups defending shutdown of the Congress and the Supreme Court have been identified.
Operação Lava Jato revealed the largest corruption scheme ever documented in the western world
There is no record that Bolsonaro ever defended closing these institutions. Having said that, they have been frequent targets of critical assessments not only by the president, but also by significant segments of the society. True, demands for Congress shutdown by minorities are relatively common in developing countries, usually as a result of links between the political class and corruption. But it is not common — actually, it is quite rare — to observe demands for closure of the Supreme Court, even by small minorities in developing countries. What could possibly be behind such demands, in the present case?
To answer this question, it is necessary to understand the context that led to Bolsonaro’s election in 2018.
Lula, the first president of Brazil, who belonged to the leftist PT — Workers Party — was succeeded in 2011 by Dilma Rousseff, his former aide. Dilma practiced a much less sound economic policy than Lula’s, but the combination of a favorable external context, accommodative monetary policy, and generous extension of credit lines by state owned banks enabled the country to grow moderately until 2013, amid post-GFC global tail winds. Beginning in 2014, the fall on global commodity prices exposed the excesses of the feckless credit policies, while currency depreciation and low real interest rates drove inflation higher. At the same time, the first results emerged from “Operação Lava Jato” (“Car Wash Operation — CW”), a joint investigation by the Federal Police and a group of prosecutors, which would end up revealing the largest corruption scheme ever documented in the western world.
The investigation exposed a corruption scheme that involved despoliation of resources from Petrobras, the state-owned oil company, into banking accounts of PT and its allies, and to some of their members’ personal or electoral campaign accounts. The venture included also private firms, especially infrastructure companies, which bribed key party figures in exchange for overpaid business contracts.
The combination of high inflation, rise of non-performing bank assets, exchange rate depreciation and involvement of several large companies and key government politicians in the corruption scheme induced the largest recession ever recorded in the Brazilian economy, which contracted more than 6 per cent between 2015 and 2016. Given the spread of the plot amid the establishment, it would also generate a strong aversion of the population towards politicians and parties, especially PT. The turmoil would eventually lead to the impeachment of Dilma Rousseff in 2016, and her replacement by Vice-President Michel Temer, who completed her term.
As CW evolved, the Supreme Court also faced larger scrutiny by the public. The Court evidenced a division in what constituted support for the operation, with one group of ministers backing the work of the task force, and another group adopting a more “guaranteeing” approach, tending to protect the establishment. Acting congressmen and government cabinet members in Brazil have the constitutional prerogative of being judged by the Supreme Court — the so-called “privileged forum”. Therefore, the fact that few politicians have been arrested throughout the investigations fostered a perception of impunity, exposed the double standards of justice and increased the people’s hostility towards the Court.
We can trace the origin of the disastrous circumstances of the 2018 election to a single phenomenon, present in the Brazilian state even before its birth: patrimonialism, which would become so firmly entrenched as to mold politics and the social fabric of the country throughout the centuries.
The classical, Weberian meaning of patrimonialism is the lack of separation between public and private interests; it usually involves appropriation of the state’s resources by the governing class. Note, however, that patrimonialism in Brazil never really followed this template, at least prior to the arrival of PT into the presidency.
Rather, using state resources to obtain privileges had always been associated with what Raymundo Faoro, Brazil’s greatest interpreter, defined as the “estamento burocrático”—the “stand”. The stand is the layer of public servants and government contractors that has always orbited power in Brazil, extracting rents and privileges at the expense of the rest of the society. Faoro traces the genesis of the stand to the Avis Revolution in Portugal, back in the 14th century, when the King established a direct suzerainty link with the population and reduced the importance of the nobility. The stand developed from this centralization of power, with the addition of several layers of government officials and contractors throughout the centuries.
The modern period of centralization of the Brazilian state began in the 1930s, amid the global trend of growing state intervention in the economy. President Getúlio Vargas inaugurated the formation of the central bureaucracy and the establishment of state-owned companies to explore major economic activities. This process would accelerate during the 1950s and the military period. With the rise of PT in 2002, however, the concept of a strong state would reach a new level.
The limitation of the Supreme Court’s power by the Senate, as constitutionally provisioned, is a fiction
Corruption of public officials and the use of state-owned companies for patronage purposes had been present in Brazil and other states for a long time. The PT innovation would turn out to be the seizure of the state’s resources and their divesture into the party funds, in order to support a plot for its perpetuation in power. In two centuries as an independent state, this was the first time the country and its resources were sequestered by a political group organized around such an objective. This template could be compared to a form of patrimonialism closer to those exercised by the absolutist regime of Imperial Russia or by some contemporary dictatorships in Africa.
As we discussed, the perception of impunity — of political privilege — was another factor in the 2018 election. How is this situation related to patrimonialism?
The “privileged forum” for the political elite, confirmed in Brazil by the 1988 constitution, as it had been by its six predecessors, is an institute that finds no parallel in any other modern state. Its origin can be traced to the “Ordenações Manuelinas”, the law code edited by King Manuel I of Portugal in the early XVI century.
Organized in books that specified the distinct judiciary instances by which different classes of people (clergy, noblemen, king’s officials and the remaining) would be subject to, the code instituted the inequality of treatment among individuals, defined who could be arrested, and by whom, and specified the punishments for crimes, which depended on the class of the person involved.
Abolished in Portugal in the 19th century, this system proved to be remarkably resilient in Brazil, and persists, with some modifications, to our day. In addition to contributing to the perpetuation of privileges and the endorsement of the extraction of rents by the stand, the mechanism induces the political engagement of the Supreme Court, making the limitation of its power by the Senate, as constitutionally provisioned, a fiction, since many senators have judicial liabilities. For the same reasons, it disincentivises the President to appoint to the Court experts in constitutional law, but, rather, to opt for personal friends or sympathisers of his political agenda. The almost lifetime term of the Court’s ministers (until 75 years of age) exacerbates the bias in its composition. The flawed setup explains the decision of the Supreme Court to maintain the political rights of former president Dilma Rousseff by the occasion of her impeachment — something the constitutional text explicitly forbids, along with the frequent intromission of the court into exclusive matters of the two other branches of government and its effort to protect the establishment from corruption investigations. The patrimonialism endorsed by the constitution and the Supreme Court, a heritage of the entourage of Manuel I, explains the growing rancor of the population towards the Court and completes the analysis of the circumstances that conditioned the 2018 election.
Despite the growing political engagement of the Court, until recently it had refrained from directly influencing the political process of the country.
Former president Lula is a figure condemned by several crimes, with sentences confirmed by three different instances of the judiciary. By reinstating his political rights, under allegations of unsuitability of the circuit court to judge the processes — and despite having confirmed the jurisdiction several times in past years — the Supreme Court inflicted a serious, perhaps fatal damage, to the rule of law it is supposed to guarantee.
Francis Fukuyama, in his classic work The Origins of Political Order elaborates extensively on the concept of rule of law. In particular, he offers a useful test for whether a society lives under Rule of Law. “Rule of law exists,” says Fukuyama, “if the law represents a constraint to the ambitions of the most powerful [politicians].”
In ancient Rome, rule of law ended when the wealth of the state and the stakes for the consulship election and command of the most important expeditions — which yielded prestige and plunder — had increased so much as to throw the republic into civil war, amid the quest for power. That is, rule of law ended when established rules ceased to be an obstacle to politicians’ ambitions. The republic was terminated, and the empire emerged. Like in Rome for Sulla and Pompey for Cesar, in Brazil, rules could no longer contain the ambition of Lula.
Rule of law ended when established rules ceased to be an obstacle to politicians’ ambitions
The patrimonialism that prompted this textbook violation of rule of law in contemporary Brazil, constitutes, perhaps paradoxically part of the very rule of law that permits the perpetuation of all sorts of privileges and double standards. As Fukuyama also explains, in pre-1789 France, rule of law, in the form of “acquired rights” of tax exemptions for the noble class pushed the burden of extra taxes entirely upon workers. Rule of law also prevented Louis XIV from simply expropriating or executing entire families of his enemies, a common practice observed in states where rule of law was almost entirely absent, like Qin China or Imperial Russia. In Brazil, as in absolutist France, rule of law protects privileges long entrenched in society and make changes enormously difficult to be implemented. One of the most symbolic of these double standards is the social security of public servants, which for a long time granted these individuals much softer conditions for retirement than those of the rest of the workers. It took many decades and enormous effort for the country to finally reform this system in 2019. Many other distortions remain, however, most in the form of tax exemptions and personal advantages to certain groups. Some of the most bizarre examples are the remaining right of single daughters of army officers to enjoy a lifelong pension; the right of every congressman to employ 25 advisors, and each senator, 50; and — yes, it is true — each Justice of the Supreme Court to have, among dozens of assistants, one whose major functions are to help the minister dress his gown and pull back his desk chair, among other tasks.
Jair Bolsonaro, partially due to his long-dated antagonism to PT rule, presented a feasible alternative that could, somehow, work towards reversing this dismal situation. His electoral platform was centered in the fight against corruption and in reforms to reduce state intervention in the economy — two themes which his past as congressman did not particularly support. Of course, it is one thing to galvanize people’s hopes, an entirely different thing to establish a line of action to address these hopes, and a third issue to make some progress. On fighting corruption and impunity, little has been achieved, although it can be argued that the level of appropriating state resources for patronage in the current government is low, by historical standards. On market-oriented reforms, his Economy Minister, the Chicago-trained economist and former banker Paulo Guedes, has achieved some success. And, yes, it is true that Brazil could have fared better in the pandemic if the President had adopted a more responsible attitude. Regarding the Amazon, it is also true that deforestation has trended upwards recently. However, according to a United Nations report, Brazil is second only to Russia in total area of preserved native vegetation, and is not among the top 100 producers of CO2 per capita, according to the World Bank.
The rule of law is in deep trouble in Brazil — but not because of Bolsonaro. Indeed, without an (unlikely) constitutional reform to extinguish the privileged forum and limit the term of Supreme Court Justices, there seems to be no hope for it.
But what, then? It is not as though the absence of rule of law does not find parallels in today’s world. Russia, Turkey and China are examples of societies in which rule of law has for a long time been weak or non-existent. But the leaders of these countries are hardly defenders of republican values, whereas Brazilian elites pretend to believe themselves to be unquestionable supporters. Be skeptical when you read these words: “Bolsonaro must be stopped so that he does not jeopardize Brazil’s strong democracy and institutions.”
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