—Heloisa Fernandes Câmara, Associate Professor, Federal University of Paraná
[Editor’s Note: This is the fourth and final substantive post in the ICONnect symposium on the new Lula government in Brazil and the challenge of democratic erosion after Bolsonaro. For the introduction to the symposium, see here.]
One cannot apply the usual criteria to assess the Bolsonaro government – and it would not be different in its attempt to shatter Constitutional practices in Brazil. His was an Administration committed to deconstituent practices, and it raises the question on the necessity and possibility for accountability of actors involved in constitutional and democratic erosion. Amongst those, one can begin by demanding restauration from the now former President Bolsonaro, but go beyond, and include officials and subordinates who acted to destroy Brazilian institutionality.
Here, I seek to outline how Bolsonaro’s conduct, however disorganized and managerially incapable as it could seem, had on continuous crises with the objective of constitutional destruction its method. This modus operandi resulted in recurrent pressure on Brazilian institutions, making opposite reactions difficult – the point of my analysis in the first part of my argument. In the second part, I deal with how the action took place through criminal conduct, including both responsibility and common crimes. The objective is to wonder: for what would Bolsonaro be responsible? Finally, I deal with the necessity for accountability on the former Brazilian president, that is, to try to answer why Bolsonaro should be held accountable?
I. Bolsonarista action strategies
Bolsonaro acted constantly to promote and exacerbate crises. He triggered conflicts between powers, persecuted opponents, the press, scientists, and technical staff of the State. Crises also served, for him, as a diversionary mechanism when negative news affected his government.
There is method and strategies in this “chaos-production”. Firstly, information is propagated primarily through a disinformation ecosystem that overloads public opinion. Within this ecosystem, networks of communication created by different outlets mix false information and institutional positions, creating parallel realities. The (lack of) management of the Covid-19 pandemic is a great example of this strategy. While consensus was built on other countries on governmental action – for example, on social isolation, the lack of effectiveness of certain medical substances, and the role of vaccination – President Bolsonaro, his officials, assistants, as well as his supporters, wreaked havoc by supporting opposite theses. It was most visible in the case of the shortage of oxygen cylinders in Manaus in 2021.
Bolsonarista strategies reconfigure coalition presidentialism by issuing measures without negotiating with Congress. This occurred through presidential decrees, creating normative labyrinths. This strategy increased the number of regulated firearms to civilians, weakened environmental regulations, and limited social participation in national advisory councils.
Public administration was severely affected. The government, for instance, militarized civilian positions: in 2021, there were more than 6,000 military personnel in civil service positions. It also institutionalized harassment on technical servants. This practice was widespread and led to the creation of a specific term to name it: institutional harassment.
Federal officials also used budgetary revenues in undemocratic practices; budgetary constraints were places on areas identified as “left-wing”. Over the last two years, government financing has also been an arena for exchanging favors through the creation of the so-called “Secret Budget”. It consisted in a system in which the remit of resources prevents its control. This guaranteed the support of the “Centrão” congressional caucus, reducing financing of important areas and compromising public policies.
There were institutional and regulatory changes that hindered public accountability. We can say that this practice reached its apex on the classification of public information for a hundred years in issues such as the President’s corporate card. There was a formal complaint to high courts on Bolsonaro’s intervention on the Federal Police, when he tried to embarrass investigation on government acts. Public policy indicators were not updated to official websites, so there was no accurate information in strategic areas such as health, creating a “data blackout”
These tactics were combined with demonstrations by the President, his officials, and supporters. These demonstrations strained the relationship with other powers, especially the judiciary. Bolsonaro reviled ministers of the Supreme Court (STF), ordering air force planes to fly over its building to break windows, and inflating popular opposition against the Court.
II. What is there to blame Bolsonaro for?
One may argue that these behaviors, even if undesirable, are in the sphere of politics, and must be treated as such. It would be up, in this framework, to the Legislative and Judiciary to hold the President and his officials accountable for politically inappropriate, illegal, or unconstitutional acts. Furthermore, for supporters of this analysis, the main political accountability on the President would be his non-reelecting to the supreme post on national government, an unprecedented feat since re-election became legal in Brazil, in the 1990s.
This reasoning can be faced with two arguments: the first is that the President’s actions surpassed political divergence, using illegality as method. The second is that the continuous attacks on institutions led to democratic and constitutional erosion, encouraging support for coups d’état. We can consider that the main reason they did not take effect was his inability to mobilize support for a coup, and not his individual respect for rule of law.
The classic accountability mechanism in Brazil in this case is the Presidential impeachment, in which the National Congress analyses and conducts judgement. There were 153 requests for Bolsonaro’s impeachment, presenting different arguments such as lack of management of the pandemic and anti-democratic demonstrations. None of these requests were accepted, and due to the end of his Administration any possible analysis came to a term.
Another hypothesis of accountability is the trial of common crimes by the STF. In this case, however, the complaint must be made by the Attorney General of the Republic (PGR), a presidential appointee, and only in relation to facts pertaining to the presidential mandate.
The COVID-19 Parliamentary Commission of Inquiry suggested, in its final report, the indictment of Bolsonaro for nine different charges. The PGR Office asked for the closure of these investigations. Complaints were also filed against Bolsonaro at the International Criminal Court on the grounds that his actions and omissions during the pandemic could amount to crimes against humanity.
Currently, the STF is analyzing investigations of which Bolsonaro is part. Fake news dissemination about the vaccine against COVID-19, dissemination of confidential data about the Superior Electoral Court, attacks and fake news against STF ministers and interference in the Federal Police are investigated.
Also under analysis is the framing of their conduct as crimes against the rule of law as defined by Federal Law n. 14.197/2021, especially for their action in the campaign to insufflate distrust of electronic voting machines, which included the dissemination of false information and created a climate of disrespect for the electoral result.
In the electoral sphere, Bolsonaro was accused of having used his disinformation ecosystem to create informational chaos. Fake news was shared with the help of highly popular profiles, causing them to be replicated and reach a massive audience. The strategy used the monetization of YouTube channels, gaining undue advantages for Bolsonaro by creating factoids about the other candidates, especially his main opponent, Luís Inacio Lula da Silva. These accusations characterize abuse of political and economic power and misuse of institutional social communication, conducts that can lead to ineligibility.
The conduct of the president and his officials in the budgetary and financial sphere is still to be investigated, due to government expenses made during an election year with a clear electoral purpose – fuel subsidies and aid to professional categories, for example. It generated restrains and led to contingencies that affected areas such as education, in which student grants were only paid after country-wide protests.
The beginning of the Lula Administration in 2023 signals to secrecy decrees being withdrawn, and more evidence of criminal actions and omissions appearing. At the time I write this piece, it is only possible to wonder on Bolsonaro’s attempts to co-opt institutions and illegalities.
III. Why holding Bolsonaro accountable is needed?
The last issue to be faced is whether, given this scenario of havoc, it is worth mobilizing the justice system to hold the former president accountable. This is even more pressing issue because Brazilian history is made up of many (asymmetrical) “conciliations” and little or no accountability for crimes committed. In this case, we must refer to a basic distinction of law: holding people accountable for criminal acts is not revenge, and it is not arbitrary deprivation of rights: it is simply assuming that institutions must investigate and judge acts that are classified as violations of the established legal order. The penalty for any misconduct on this regard is to tolerate and allow the repetition of violation of rights, as well as their permanence in Brazilian society.
There was no punishment for torturers and those responsible for the forced disappearance of victims during Brazil’s last military dictatorship. Military officers continued in their positions and were kept safe from any penalty thanks to the Brazilian Amnesty Law of 1979, as well as judicial interpretations on the matter. National courts did not convicted officers, but the Inter-American Court of Human Rights did in the Gomes Lund and Vladimir Herzog cases.
The military lobby in the Constituent Assembly of 1987-1988 helps to explain how the current constitution was lenient in relation to the roles and limits of the military. The failure to face the sensitive issue of the Armed Forces and public security led to the existence of institutional authoritarian enclaves in Brazilian democratic system.
In the Bolsonaro government, the symbiotic relation between traditionalist conservatism, neo-fascism and institutional aversion to transparency and protection of human rights reached its peak. The unprecedented militarization of public service caused fundamental governmental sectors such as environmental and health control to be dismantled. Meanwhile, corrupt practices such as bribes for intermediary companies that should provide COVID-19 vaccines were combined with delay for federal action on the matter, leading to the deaths of almost 100,000 people, which could be avoided. This is an example of issues that cannot be forgotten or tolerated.
Tolerance of the intolerable is a great risk facing democracies and constitutionalism. The election of openly anti-democratic leaders who use their Administration to destroy democracies’ protection bars is a globally widespread phenomenon.
Complacency with criminal behavior encourages its repetition and dissemination. The basis of actions by Bolsonaro’s supporters who closed and barricaded highways was formed by this lack of hard action. Bolsonaristas, inflated by the ecosystem of disinformation and private financing, also camped in front of military facilities, and placed bombs in the federal capital. Terrorism gains strength in the absence of accountability for those who normalized violence and crime as a technique of government, as can be seen in this case.
The path ahead is not easy. In addition to the history of aversion to accountability, Bolsonarista ideologies are very much alive. People who believe in disinformation and blatant lies are willing to maintain Bolsonarism in governmental institutions. They constantly wave to security force officers, with police significantly supporting the movement, and raising fears of indiscipline. The exponential increase in the purchase of firearms, including high-caliber guns, together with the above-referred decrease in state control, allowed supporters to have an arsenal of weaponry, which increases the risk of violent acts to contest the electoral result. Even if there is no radicalization, institutions have been co-opted, hampering their power of reaction. Financing from entrepreneurs also play a prominent role in Bolsonarista continuity, keeping the scammer’s flame on through the monetization of virtual networks.
Precisely because of all these difficulties, the resumption of a democratic future in Brazil requires shattering practices of tolerance with autocracy and impunity that accompanies it. After the January 8 attacks on Brasília, it is crucial to investigate and punish all those who acted or omitted to act criminally, especially the civil servants, military personnel and those who financed and organized the riots. The 1988 Constitution represented a civilizational pact that was broken during the Bolsonaro Administration. It is time to resume that pact.
Suggested citation: Heloisa Fernandes Câmara, Holding Bolsonaro Accountable: Learning From the Past to Build the Future, Int’l J. Const. L. Blog, Feb. 15, 2023, at: http://www.iconnectblog.com/2023/02/holding-bolsonaro-accountable-learning-from-the-past-to-build-the-future/
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