Fernando José Gonçalves Acunha & Juliano Zaiden Benvindo
University of Brasília.
In a text dedicated to the current political turmoil in Brazil and its potential constitutional effects, one of us stressed that despite that crisis, the core of the Brazilian 1988 Constitution is being dismantled at an unprecedented and fast pace (Benvindo, 2017). This would configure what Richard Albert has called a ‘constitutional dismemberment’, that is, a constitutional change that ‘seeks to transform the identity, the fundamental values or the architecture of the constitution’ (Albert, 2018). An abrupt constitutional change is underway, threatening the integrity of the Constitution precisely in a moment when the government is extremely unpopular (its approval rating was 9% by the end of April, and the President himself is now being investigated by the Supreme Court), and the political environment is so poisoned that no true opposition grounded on political terms appears to be strong enough to present a sustainable case against this ‘modernizing’ constitutional reform.
Paradoxical as this sounds, this symptom may be the outcome of the very malfunction of Brazilian democracy, characterized by the most fragmentary political system in the world (there are now 27 parties in Congress) and a President who strongly lacks legitimacy after taking power as a consequence of the impeachment of then President Dilma Rousseff in August 2016. Nevertheless, an administration with enormous public disapproval has had, at least until now, enough support in Congress to steamroll reforms rejected by most of the population, as can be noticed from the deliberation proceedings on the social security reform. The Executive and Parliament, regardless of their deep unpopularity and the criminal investigations into their activities, have been working at full steam, raising thereby serious debates over how well-equipped Brazilian Democracy is to challenge this ‘constitutional dismemberment,’ and how this top-down way of decision-making could also constitute a form of democratic decay, defined by Tom Gerald Daly as ‘the incremental degradation of the structure and substance of liberal constitutional democracy’ (Daly, 2017).
This crisis has led to an interesting phenomenon, as it reshapes how the three branches interact with each other. While the President and Congress are making great strides toward constitutional change despite their unpopularity and criminal investigations, the judiciary has gained momentum as the branch that has better responded to the wishes of the population. This is why it could be said that the decay of democratic politics, in Brazil, comes along with the new role occupied by the judiciary, in which much of the hopes of an effective fight against corruption is invested. A politicization of the Judiciary is the immediate outcome of this phenomenon, and it comes with no surprise that figures like Judge Sergio Moro (who presides over the ‘Car Wash’ probe) or the Supreme Court now occupy the center stage of the news and the public debate. Analyzing this context, Diego Werneck Arguelhes recently wrote that Brazilians are witnessing a structural transformation that intends to affirm the Judiciary (and especially some individual Judges) as the true representatives of the nation’s will (Arguelhes, 2017).
In such a scenario, ‘anti-politics’ is a widespread sentiment throughout the Brazilian society. That might be one of the reasons why we could say that ‘populism is knocking on the door’ (Benvindo, 2017). And this is not an isolated event once we take notice of the larger (worldwide) picture. Elsewhere, anti-establishment, anti-politics, and anti-elitism, among others, have been the driven forces that led to ‘populist’ victories in Hungary, Poland, Turkey, the United States, Venezuela, and so forth.
‘Populism’ is a very common word these days. In order to work with it, it is necessary to find a useful definition whose main contours adapt to our line of argument. In general terms, a populist project, according to Andrew Arato, is based on a logic that ‘establishes friend and enemy relations, over a frontier of radical antagonism, thereby extricating ‘the people’ from its enemies within the population as well as outside’ (Arato, 2017). By constructing an orientation towards conflict, populism divides the body politic and purports to do so in irreconcilable terms, labeling foreigners and even fellow nationals (the internal ‘other’) as a kind of enemy that must be confronted and beaten. This ‘politics of resentment’ (Koncewicz, 2017) is an outcome expressed not only as a reaction against ‘elites’, but against pluralism as well.
Of course, not every populist experience is the same. Ethnical nationalism, for example, is a common feature of right-wing contemporary populist governments in Hungary and Poland. On the other hand, recent Latin American populism is not centered on a similar nationalistic basis — though nationalism was a key factor in some previous Latin American populist governments, like the presidency of Getúlio Vargas in Brazil in the 1930’s and the 1940’s — it is commonly left leaning and emphasizes a special appeal to the economic oppressed (like poor workers) and a political discourse against imperialism and capitalism, as can be observed in the administrations of Rafael Correa (Ecuador) or Hugo Chávez/Nicolás Maduro (Venezuela).
It is undeniable, though, that populism — whatever its ideological orientation — emerges in a landscape of widespread crisis, whereby discredited political institutions are no longer perceived as capable of channeling the interests of the population. Institutional fallout, economic turmoil and the feeling of displacement and insecurity caused by a hyper-integrated worldwide society are perfect raw materials for a populist rise.
Contrary to a well-established and almost unanimous mindset embraced a decade ago, that seems to be the scenario in Brazil nowadays. In many analysts’ reviews about the past 15 or so years, Brazil (and Chile and Uruguay alike) was treated as an outsider in Latin America regarding populism. Kenneth Roberts and Steven Levitsky even said that Brazilian leftist Worker’s Party, while in power, could not be depicted as a populist movement, since it did not operate as an engine whose sole purpose was allowing the ongoing rule of a strong leader viewed as the incarnation of the society’s will (for them, the Brazilian left was an example of an ‘institutional left’) (Introduction, The Resurgence of the Latin American Left, 2011).
The relative stability that marked the last decade, however, is not here anymore. Political and economic realities are far too different and there is no certain indication of an immediate solution to the crisis that has emerged. As already mentioned, the federal administration is deeply unpopular; Congress and the political parties have extremely low levels of trust; every living former Brazilian President since re-democratization is involved in corruption trials; President Temer himself has no assurance of reaching the end of his term, since the Supreme Court is conducting investigations against him based on corruption charges, the Superior Electoral Court is also on the verge of deciding whether the 2014 election should be annulled based on illegal campaign financing, which would unseat President Temer; the economy, despite a slight improvement, is still relatively stagnated; the unemployment rate is skyrocketing; etc. All of it lends space to political emptiness and a moralizing discourse that intends to trace a line dividing ‘corrupts’ and ‘ethical agents’ amidst a growing sense within the population that a drastic change is necessary.
Such an entrenched sentiment of chaos and the absence of hope leaves a fertile ground for blatantly authoritarian and extremist alternatives, represented, among others, by controversial characters like Representative Jair Bolsonaro, a former Captain of the Army who currently occupies second place in some opinion polls in the 2018 presidential election. His trajectory is a renewed example of a phenomenon vividly portrayed by US President Donald Trump, whose anti-elitist tone, combined with his attacks on ‘political correctness’, his defiant stance against minority groups, his despisal of the press, and his mastery over the fears of a population that feels unprotected in an ever-changing world, were key elements of his upsetting electoral victory in the 2016 presidential elections.
Though there is no sure indication of what the effects of the Trump administration will be for his country and for the world, there are good reasons to believe that the strong institutions of American democracy may protect the United States from a major blowout. But, as already suggested by Issacharoff in his work about Fragile Democracies (Harvard Law Review, 2007), different countries demand specific tools to protect themselves against extremism. Not every country has solid institutional bases to cope with populist threats. Hungary had its constitutional system turned upside down by the Fidesz rule (whose majority does not correspond to its actual share of the total vote); Turkey is changing its government character from parliamentarism to presidentialism through constitutional amendments and a referendum full of questioning; Poland is facing attempts by the current government to stack the deck against the opposition by packing courts and other independent accountability institutions. For that reason, it is not incorrect to say that in a context of a (right-wing) populist victory paired with a persistent political and economic crisis, a leader emboldened by a moralist discourse against ‘corruption’ (always attached to the ‘other’) could lead Brazil to the worst of these paths. The next Brazilian presidential elections, at least as it is now stated in the constitutional text, are scheduled for October 2018. Until then, the very political crisis can still lead to unpredictable developments. In any case, Brazil, as with some other experiences elsewhere, is about to see how far its institutions and its constitutional system are capable of tackling the populism that is knocking on the door. And whether and how its young democracy, whose recent signs of decay have stained a beautiful history of constitution-making, can overcome these ever-present threats.
Fernando José Gonçalves Acunha is a Professor of Constitutional and Administrative Law and holds a PhD in Constitutional Law from University of Brasilia (UnB). He is also an attorney in Brasília, Brazil. His primary research interests relate to Constitutional Law, especially Latin American constitutionalism and Comparative Constitutional Law. He is the author of O Combate à Discriminação Regional no Brasil: Limites e possibilidades do direito (Lumen Juris, 2014), written in Portuguese, and several articles”.
Juliano Zaiden Benvindo is Professor of Constitutional Law at the University of Brasília (UnB). He is the head of the Center for Comparative Constitutional Law of the University of Brasília and a fellow of the National Council for Scientific and Technnological Development in Brazil. He holds a Ph.D from the Humboldt University of Berlin, Germany (2009). In 2013-14, he worked as a post-doctoral visiting fellow at the Center of European Law and Politics of the University of Bremen, Germany. He has published articles and books in English and Portuguese in distinguished journals and publishers. Since 2014, he has been a regular contributor to I-CONnect, the blog of the International Journal of Constitutional Law.