Authoritarianism Without Emergency Powers: Brazil Under COVID-19
One of the few heads of state that insist on
denying scientific and epidemiologic facts concerning the spread of COVID-19 is
the Brazilian President Jair Bolsonaro. For Bolsonaro, politics comes before truth. Since the beginning of the
pandemic of COVID-19, he is disseminating doubts on social media (although
Twitter, Facebook and Instagram deleted some of his posts) to galvanize his
radical supporters while creating a distraction for his government’s inability
to implement social and economic aids to the low-income families affected by
social distancing. For the moment, the president has failed to gather the
public support that he needs for an extension of the emergency powers of the
executive, like Orbán did in Hungary. But his authoritarian discourse has not
disappeared from the horizon. On 31st March 2020, for instance,
Bolsonaro celebrated the anniversary of the Coup of 1964 as a “great day for freedom”.
Going Back to Work?
Yet the risk of governmental abuse of emergency
powers in Brazil comes less from the measures against COVID-19 than from possible
social disturbances that may emerge in the future. In another surprising public
appearance on Brasília’s street markets, on the 29th of March 2020,
Bolsonaro expressed his desire to enact a decree allowing people to go back to work.
A decree with this type of content would hardly be surprising, since it follows
a pattern that Bolsonaro traced from the beginning
of his government, which is to use his presidential powers to defy
constitutional and legislative obligations. Moreover, his alleged concern for
economic losses of poor people contradicts his acts. On April 1st
2020, he issued the Provisional Act 936 (a “Provisional Act”, in Brazilian
constitutional law, is an executive legislation which must be approved by
National Congress, but produces immediate effects until it is confirmed or
rejected by the legislature), allowing companies to suspend their employees’
salaries at the maximum of 100%.
Most governmental policies against COVID-19
(including restrictions on the commerce, interstate and intermunicipal public
transport, schools, and so on) have been brought by state and municipal
authorities. Despite Bolsonaro’s effort to concentrate powers in the federal
government, states are challenging the authority of the president and have been
more successful in convincing the population of the seriousness of the disease.
24 of the 27 state governors wrote a letter to Bolsonaro expressing eight
consensual coordinated actions to fight the pandemic. Their positions, which
coincide with the views of the Speakers of the House of Representatives and of
the Senate, attempt to curtail executive authoritarian aspirations.
Bolsonaro’s coronavirus denial lacks support even among important
members of his cabinet. The Minister of Health, Luiz Henrique Mandetta, has
adopted a more technical position toward COVID-19 and is acting in accordance
with the recommendations of the scientific authorities, despite being constantly
embarrassed by Bolsonaro’s pronouncements.
Although the minister has been forced to change
some of his speeches to keep his job, he has found and an important ally: the two
Houses of National Congress. The most important legislative basis for combating
COVID-19 comes from the federal legislation, especially Act number 13.979 of 2020, which establishes the competence
of the Minister of Health to define the timing of the public health emergency,
which cannot exceed the recommendations of the World Health Organization (WHO).
Since the beginning of Bolsonaro’s presidency,
the legislative branch has adopted a hesitating approach with regards to his
authoritarian pronouncements, given that it endorsed the executive economic
policies. But the global spread of COVID-19 changed this picture. The
experience of European countries, which is widely documented by scientific
authorities, generated a consensus among state governments and legislative and
judicial institutions, which enhanced the capacity of the two houses of
Congress to resist the illiberal rhetoric of the president of the republic. The
measures provided by Act 13.979 of 2020, which is a federal law enacted by the
Congress, are widely regarded as reasonable and follow the global pattern of
Bolsonaro is isolated in his defense of a
vertical quarantine—probably based on the assumption that if the economy
collapses (as it will), he will be able to address his supporters as the major
voice against the sanitary measures which are likely to produce a wide impact
in the economy. He has, in fact, taken action to implement this policy.
After a series of quarrels with Brazilian
governors, Bolsonaro issued the Provisional Act 926 of 2020 to enlarge his
powers during the crisis. This provisional act intended to prevent states from
suspending the so-called essential economic activities, which should be
specified by the president in an executive order. Furthermore, it establishes
that several activities only can be suspended in accordance with the directives
of federal agencies that regulate matters such as transport, energy, fuel,
agriculture and so on. Although one could suppose that this deference to
federal agencies would be a kind of horizontal and bureaucratic control against
Bolsonaro, the truth is the contrary. In effect, Bolsonaro controlled several
of the nominations for these offices. On a public rally on the 15th
March 2020 (against the orientations of his Minister of Health), Bolsonaro went
to the streets of Brasília in the company of the director of the National
Agency on Sanitary Surveillance, who was supposed to take action to prevent the
spread of the disease.
Chaos as Method
The current chaotic scenario is intentional. As
a political analyst described it, Bolsonaro uses chaos as a method for preserving the fidelity of his
voters. His political ideology, Bolsonarism, is based on a permanent challenge
to the institutions and a promise of a populist savior. There is nothing better
for creating a situation of despair than to disseminate the idea that
institutions and the media are against the immediate economic recover of “the
people”. One must bear in mind that bolsonarism presupposes a Schmittean notion
of popular sovereignty, based on a friend-enemy relationship by which he
identifies himself as a friend of true people and an enemy of the elites,
institutions and the media that recurrently despises his political ideas.
There is hope, however, that Bolsonaro’s
populist response to the crisis might fail. Political institutions have presented
adequate responses to Bolsonaro’s COVID-19 campaign of lies. The National
Congress expanded the economic aid to low income families proposed by the
government. Whereas the executive intended to pay US$39 to each family per
month during the health crisis, the legislature approved the amount of US$116,
which can be doubled if a family household has two working-age parents or is
funded by a single mother. By the same token, when Bolsonaro’s government
approved a public campaign to make people go back to work (“Brazil Can’t Stop”,
was the title), a federal judge in Rio de Janeiro suspended it on the ground that
the propaganda could harm the health of the population—a similar decision was taken,
on 31st March 2020, by the Justice Roberto Barroso, of the Federal Supreme Court.
In another important decision, the Federal
Supreme Court stopped Bolsonaro’s attempt to grab legislative powers through
the suspension of the period of legislative approval for provisional acts. In
an important decision to uphold the rule of law, the court rejected Bolsonaro’s intent to keep his
“Provisional Acts” indefinitely valid during the COVID-19 emergency. By the same token, the court also halted the
intended restriction to access to information established by the federal government.
State of Defense and State of Siege
In the everlasting March 2020, such different
political positions must be confronted with the Brazilian Constitution of 1988.
Until now, the vocabulary of a constitutional crisis has not been pronounced. The
1988 Constitution provides for two systems to deal with serious crises: the
state of defense (Article 136) and the state of siege (Article 137). The state
of defense can be declared by the president with the aim of recovering public
order or peace, in determined places, when they are threatened by institutional
instability or natural calamity of huge proportion. In any case, the state of
defense is subject to a thirty days deadline (with one renewal), and its decree
must be approved by the National Congress and must specify the rights that will
be limited (the Constitution allows only for limitation of specific
rights—liberty of reunion, post, telegraphic and telephonic communication) during
The state of siege is even more serious. The
president asks the National Congress permission to issue the decree in this
case. It can only happen in cases of serious civil commotion, inefficiency of
state of defense and war declaration or foreign aggression. The decree shall
specify the duration of the state of siege, the measures to be adopted and the
rights that will be suspended. It must endure for thirty days with a single
renewal—in the case of war, it can last for the period of the conflict. Since
the promulgation of the Constitution of 1988, the measure was not invoked by
As the president of the National Bar Association already opinioned, the COVID-19
crisis does not fulfill the requirements for the state of siege. Although Bolsonaro
asked federal authorities to issue legal opinions about this possibility, no
sustained legal defense of a state of siege has been presented until now.
Another measure not directly related to the
constitutional system of crisis, but which calls the attention for its
centralist profile, is the “federal intervention” in the government of the
states (Brazilian Constitution, Article 34). The measure should be used in
cases where the whole federal system is endangered. Again, after 1988,
Brazilian presidents were reluctant to adopt this measure, until Michel Temer
reached power following Dilma Rousseff’s controversial impeachment trial.
Facing huge unpopularity, Temer used the device to supposedly attack public
security problems in the state of Rio de Janeiro. Bolsonaro allegedly could
invoke the federal intervention in his war against Brazilian state governors,
although his political support seems to decrease as he proceeds with his anti-truth
health policy. It seems unlikely, in our judgment, that the two houses of
National Congress will support this political adventure.
As of this writing, Bolsonaro’s government was
not able to shut down the legislative chambers or excessively centralize power,
as his supporters expect. His rhetoric is more salient then his capacities.
However, if democratic collapse was not reached, deterioration is gaining ground.
In the current political setting, leftist and centrists are together against
Bolsonaro. And even among his voters, some already seem to regret it. Perhaps
this resistance may increase the chances for him to try a suicidal political
assault, if the military decided to back him. If this is the case, instead of
being close to Orbán’s Hungary, Brazil is more likely to follow the traditional
political tragedy. With everyone on quarantine in their houses, Brazilian
democracy hangs on the capacity of conservative institutions—National Congress
and the judiciary—to recognize the failure of Bolsonaro’s project. On the 31st
March, he went to television to deliver another speech, this
time more moderated (or frightened?). Still, he used WHO Director Tedros
Ghebreyesus’ words to defend his own view on balancing the struggle against the
virus against the need for daily bread. Yet for the fifteenth consecutive day,
Brazilians went to their balconies with their pans.
We can extract two conclusions from the
Brazilian case. First, it seems to show that emergency powers may not be
necessary for a situation of health crisis. Using the legislative and executive
apparatuses, governments can enforce measures for protecting public health, at
least in a good scenario. Of course, the economic perspective must be
considered—and that is the most important thing Ghebreyesus communicated:
governments must, in times like these, take care of their citizens and support,
specifically, the poorer ones. Second, it can show that perhaps a coordinated
effort among local governments, legislatures and judicial authorities can
provide a relevant resistance against illiberal populist leaders.
The Brazilian case, with Bolsonaro, becomes
more dramatic because of his irresponsible tactics to influence behavior and to
challenge democratic institutions. When
we turn to the people that live in Brazilian favelas, sharing spaces that, in
most of the cases, do not allow for separate rooms, the situation becomes
dramatic. This is the reason why, sooner or later, Bolsonaro must be held
responsible for the deaths he is influencing.
Emilio Peluso Neder Meyer
Emilio Peluso Neder Meyer is a Professor of Constitutional Law at the Federal University of Minas Gerais, Brazil, and Research Fellow of the Brazilian National Council for Scientific and Technological Development (CNPq).
Thomas Bustamante is Professor of Legal Theory at the Federal University of Minas Gerais, Brazil; Research Productivity Fellow of the National Council for Scientific and Technological Development