‘The worst form ofgovernment—exceptfor all the others thathave been tried’

Leonidas Zelmanovitz

Despite some obvious differences, Brazil and the United States have a lot in common. They are both nations forged from European colonies in the New World; they have large territories, populations, and economies. They also have in common a tainted history of slavery, though both a-re now multi-ethnic federal republics where, supposedly, the rule of law is t-he law of the land. And from time to time, their political systems suffer from the baleful effects of populism, although the recent violence in Brazil had other causes than the instigation of a populist leader.
One significant difference, however, is constitutional longevity. While the United States has operated—at least nominally—under the same Constitution for well over 200 years, Brazil has had six constitutions so far (1824, 1891, 19-34,1945, 1967, and 1988). All but the last were brought about by revolutions or military coups.
The military regime that overthrew the government in 1964 remained in power until 1985, when it returned authority to a civil government which re-institutionalized the country with the constitution of 1988.
Notice the bad timing: t-he current Brazilian Constitution was drafted by a co-nstitutional convention reeling from more than twenty years of a supposedly right-wing military dictatorship. Furthermore, the document was finished before the fall of the Berlin Wall. That explains most of the center-left, nationalist, and socialist tendencies of the current Brazilian charter. Having s-aid that, it is also the cornerstone of the rule of law in Brazil, with a federal form of government, well-defin-ed separation of powers, a government limited by individual rights, an independent judiciary responsible for running fair elections, and last but not least, civil control over the military.
I like to quip that the constitutional assembly established effective checks and balances, even if they did so unintentionally. Indeed, since the re-democratization of the country, two presidents have been impeached (Fernando Collor de Mello and Dilma Rousseff) and one president (Luis Ignacio “Lula” da Silva) was put in jail for corruption. I doubt you can affirm more strongly the power of the legislative and judicial branches than that.
When Lula was put in jail in April of 2018 (having been convicted of bribery that, between himself and his accomplices, reached into the billions of dollars) many Brazilians saw it as confirmation that at long last, the rule of law was firmly established in Brazil.
Both Hon. Sergio Moro, the judge who first convicted Lula, and the task force of public prosecutors who initiated the cases against him, had been part of programs with the United Stat-es Justice Department mea-nt to train Brazilians on ho-w to administer justice the American way. To some, th-at indicated that they were finally getting things right. To Lula’s lawyers, it meant that his prosecution was he-avy-handed, and that judge Moro was a “CIA agent.”
At about the same time (January 2019), a center-right candidate, Jair Bolsonaro, was elected president. Bolsonaro ran on a “Populist” platform, but the extent to which he appealed to the populist impulse is less clear. He promised respect for private property, a banner issue for agribusiness. He promised to curb urban violence, a banner of the middle class. He promised to uphold conservative social values, a banner of the quarter or so of Brazilians who are Evangelicals. Most significantly, he ran as a candidate against the corruption with which Lula’s Labor Party (PT) became identified, a banner for all Brazilians who had not benefited from the corruption scandals during the 13 years that PT was in power, first under Lula and later under his handpicked successor, Dilma Rousseff. Bolsonaro was t-he first right-of-center president elected since the re-democratization of the cou-ntry, resulting in the first ac-tual transmission of power to an ideologically distinct party, another high mark for Brazilian democracy. From there, things went downhill.
Bolsonaro was elected without a majority in Congress and his apparent “anti-corruption” campaign, promising to put the majority of Congress in jail, understandably alienated that same majority he needed to govern effectively.
Moreover, in one of the most glaring political blunders of his political career, Bolsonaro appointed as Justice Secretary in his cabinet Judge Moro as “exhibit A” that his “anti-corruption” campaign was meant to be serious. That alienated further the political establishment, and gave some (unjustified) credence to the allegations that the verdicts against Lula were politically motivated.
Eventually, by the middle of his term, Bolsonaro reached a modus vivendi with the majority of Congress. That allowed him to fulfill a few of his campaign commitments. But his poor performance as the chief executive due to the lack of support in Congress, the accusations that he had caved in to the corrupt political class when he finally managed to get something done, and the limitations of a medium-income country without a social safety net facing the pandemic, alienated many of his supporters. Therefore, his coalition faced the 2022 elections weaker than it was in 2018.
Meanwhile, Lula was pulling all levers he could to be freed from jail and to have his political rights restored. In a controversial decision in November 20-19, the Supreme Court rev-ersed its own precedents a-nd set Lula free, effectively putting him out of reach of further guilty verdicts. The Court nullified his convicti-on on jurisdictional grounds and declared that the procedures against him were to be restarted at a different court. But by that time, the statute of limitations had b-een met, so no further prosecution could go forward.
One of the few legislative reforms that Bolsonaro was able to get from Congress was a partial reform of electoral laws establishing that the electronic ballot boxes would be required to issue printed receipts (like they do here in my state, Indiana). That victory was short-lived, however. The Supreme Court, the same court that freed Lula from jail, declared such reform unconstitutional in September 2020 based on the flimsy argument that printing the votes would risk the secrecy and liberty of voting. With that, elections in Brazil continued to be impossible to audit.
You see, the final tally of the elections is computed by an ad hoc electoral tribunal (TSE) controlled by members of the Supreme Court. In the absence of any possible instrument to perform an audit, whatever they say is the result cannot be challenged. Their decision to invalidate a law that would make such an audit possible dramatically incre-ased the perception that the court was not impartial.
In August 2022, Supre-me Court Justice Alexandre de Moraes was appointed the chief justice of the Electoral Court (TSE), just in time to preside over last year’s election. Justice Moraes is a controversial figure in the country.
Under Moraes, the Electoral Court outstepped its constitutional bounds and curbed discourse by Bolsonaro supporters while curbing only the most outrageous slanders against Bolsonaro (such as the accusations leveled against him by Lula’s supporters in the traditional media that Bolsonaro was a cannibal).
When the Electoral Co-urt announced that Lula had won the second round of voting by a margin of about 1% of the votes, it is no w-onder that many among the almost 50% of the voters who voted for Bolsonaro rejected the results of the election as illegitimate.
Mind you, the perception of illegitimacy does not result from the fact that it is impossible to audit the election. It starts with the very fact that Lula was able to run after being convicted at three levels of courts (the si-ngular judge who received the case and two appellate courts, one regional and the other national), and never acquitted.
Bolsonaro never recognized the defeat, but instructed his government to proceed with the transmission of power to the new administration, which took place on New Year’s Day.
Between the second round of the elections in early November and the inauguration of Lula, the Electoral Court rejected legal challenges against the result of the election. At the same time, Bolsonaro rejected popular appeals to invoke emergency powers and left the country on the eve of Lulas’s inauguration.
However, tens of thousands of his supporters remained in front of military barracks around the country asking for the armed forces to intervene in what they perceived as a stolen election.
With that, we come to th-e events of Sunday, January 8. On that day, thousands of Bolsonaro supporters overcame insufficient barriers established by the police and invaded the presidential palace, Congress, and the p-alace of the Supreme Court in the national capital, Bra-sília, before being expelled from them in the evening and 1,500 of them arrested.
There is more than a fleeting similitude between what happened in Brasília that day and what happened in Washington, DC, on January 6, 2020.
The unjustified violence was motivated by a perception not so much that the e-lection was stolen, but that common sense measures to prevent them from being s-tolen were not in place, and therefore, it is impossible to affirm the negative, that is, that it was not stolen. The one-sided narrative by the traditional media, the one-sided curbs on social media of any discourse that was identified with right-wing positions, also added to the grievances of the invading mobs. Of course, the silence of political leaders or half-baked condemnations did not help either.
Here, I think, may end the parallels between the two episodes. It remains to be seen to what extent what happened on January 8 in Brazil will serve as a pretense for Lula’s administration and a compliant Supr-eme Court to crack down on all the opposition, and not only on the rioters. Somet-hing like that would never happen in the US, right?
Lula has not helped to reduce the temperature by accusing the armed forces of negligence at best and collusion with the rioters at worst. Bolsonaro left the a-rmy as a captain before bec-oming a backbencher politician for 27 years. He left the army because he was not pr-omoted in the window requ-ired for anything more than an honorable discharge. T-hat, I think, says all you ne-ed to know about the top br-ass’s opinion about the man.
The army, furthermore, left power at the end of the military regime having been burned by the experience, and although it is true that they have exercised some “moderating” power until that moment in history, after that, such “prerogative” has passed to the Supreme Co-urt, as I have argued here. Consequently, it is unlikely that the Brazilian intellige-nce community would go r-ogue and take sides in a p-olitical dispute. Can we say the same for the United St-ates?
Let us hope that the institutional checks and balances, the norms of acceptable behavior in political disputes, and the awareness of public opinion, both in Brazil and in the United St-ates, prove sufficiently stro-ng to uphold the rule of law, in order for us to continue to enjoy for generations to c-ome “the worst form of go-vernment—except for all t-he others that have been tried.”