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  • Luís Henrique Pedroso


De l’esprit des lois (1748), by Montesquieu can be traced back as one of, if not the, first modern doctrine on the separation of powers. No, I do not forget John Locke, but the Frenchman’s widely known separation of powers in executive, legislative and judiciary has influenced constitutions around the globe for the past centuries. Despite modern constitutional systems show a less dogmatic approach to Montesquieu original theory, it is relatively common sense in the 21st century to think of the three branches working independently and providing mechanisms of checks and balances to power-sharing systems. For liberal democracies such independence is vital for good governance as they mutually counter-balance each other. This is no different in the case of Brazil. Its most recent Constitution, in force since 1988, provides institutional prerogatives to each power that, together, shall preserve democracy. Within the last decade, more precisely, since the Presidential election of 2014, the roles and institutional principles, values and prerogatives of the executive, legislative and judiciary powers in Brazil have been questioned and put into distress.

Not long ago the sitting President Rousseff has been impeached with considerable pressure to both the legislative and judiciary, for some, arguably overstepping their constitutional rights. The distress continued throughout the mandate of President Temer and emerged strong once again in the last few weeks. Popular pressure on the Federal government to act upon preventive and responsive measures against the coronavirus pandemic has deteriorated the already not too amicable relation between the three powers. Most notably, the tensions between the executive and the judiciary. If summarized, three events elucidate it:

  • the Supreme Court (SFT) ruling in favor of Governors and Mayors, giving them extended liberty to issue acts in their territories establishing social distancing, self-isolation and lockdown restrictions. Controversially, the Presidency was against this STF ruling, raising questions to effectiveness and legality of the decision according to the pact of federations defined by the 1988 Constitution;

  • the Supreme Court suspension (more like a vetting) of the President’s nomination of Alexandre Ramagem to become the Federal Police General Director. According to the STF, the nomination violated the principles of impersonality, morality and public interest due to the allegations from former Minister of Justice Sergio Moro that the nomination aimed at interfering in the institution for personal reasons;

  • the Supreme Court inquire about fake news involving threats to the Court and its Ministers from a group of President Bolsonaro’s supporters. On Wednesday (May 27th), the Federal Police, following judicial orders, collected electronics from bloggers, businessman and politicians suspected of participating and financing a scheme of fake news targeting the Supreme Court and its Ministers.

Each of the three events had a reaction from the executive, being the last one the most energic. Since the presidential campaign in 2018, the narrative promoted by Jair Bolsonaro has been based on the motto “me against the system”. He was elected as the “outsider”, despite being in Congress for almost 30 years, that would put an end to the bleeding caused by innumerous corruption scandals, that would foster the economy with more liberal policies and that would restore more conservative values in based on the trinomial religion, family and gun. With that narrative in mind, now is time for the “Supreme Court against me, my family, my supporters” motto. Recent public speeches and accusations coming out of the executive has now reached a high tone, putting the country to alert. Or not.

A democracy demands an engineering of permanent alertness to many different facts, including, but not limited to, common social values, economic interests, international political and military security and functional representative institutions. And the interference from the judiciary in the political process is not novel. The examples of Italy in the early 1990s and more recently in South Korea prove it.

But, undoubtedly, declarations (or threats) such as the ones from Minister Augusto Heleno about “unpredictable consequences to the national stability” and President Bolsonaro’s about “not admitting anymore attitudes from certain individuals” in reference to the Supreme Court’s Minister Alexandre Moraes who chairs the fake news inquire. And then, finally, I come to the word “rupture” that gives title to this text. On May 28th, Congressman Eduardo Bolsonaro, son of President Bolsonaro, has publicly mentioned the possibility of democratic rupture. Immersed in the context above presented, the voluntary choice of the word “rupture” brings me back to Montesquieu’s theory and to a book from Manuel Castells named “Rupture: the crisis of liberal democracy”.

Castells, in 2017, fundaments his book in the assertion that liberal democracy is in crisis and there is a rupture in the relations between who is governing and the ones that are being governed. This rupture is as emotional as cognitive, meaning that gradually the concept of a liberal democracy hardly fought for the last two centuries to overcome authoritarian forms of government and institutional discretion is coming to a collapse. This model of representation and governance is being replaced by mistrust in democratic institutions and, therefore, a rupture is in process. I wrote about in the 2018, I now bring it back to light with a twist towards the role of the judiciary and its clash with the executive.

If, in general, the ones being governed do not feel represented by the governing ones and also do not trust the counter-balance institutions, what is left of democratic values? That might explain the growing movements against the institutional foundations of Brazilian politics. The principle of apoliticism by the judiciary is questioned, as well as the extend of judiciary’s political power vis-à-vis the legislature. Not to say the legislative, a source of mistrust overpopulated by representatives of no one but their own agendas. We are living a time of unprecedent uncertainty brought by the public health crisis of coronavirus that is shaping the world and will bring severe changes to both global and national economies. These two elements shall not be disregarded, specially because they can pose threats and glories to the three powers, but mainly to the executive and legislative. Coming back to Montesquieu, this growing concern of political and institutional rupture in Brazil ought to be determined by the rule of law.

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