Democratic Institutions Face a Challenge in Bolsonaro's Presidency

Henrique de Souza

Conectas

As Jair Bolsonaro was sworn in as president on the first day of 2019, civil society was left to anticipate which of the plethora of problematic promises he has made will be kept and prioritized. After decades of an obscure presence in the lower house of congress, Bolsonaro gained notoriety in the last five years with conservative rhetoric against gender education and human rights, steadily painting himself as the only true opposition to the allegedly progressive agenda of the Workers’ Party (PT).

Bolsonaro has a strong anti-crime stance, painting the 'left' as soft on crime. In a campaign marked by fake news, this could not be further from the truth: during the 13 years of the PT's tenure, the prison population rose from 200,000 to 720,000, and the enactment of a new drug law in 2006 was responsible for an increase of 180,000 inmates in just 10 years.

The Federal Supreme Court recently ruled over the "unconstitutional state of affairs of Brazilian prisons," acknowledging the failure of the executive and legislative branches to remedy systemic violations behind bars. The new president's claims would put his administration in direct opposition to this landmark case, as he stated on several occasions that prison overpopulation is "a problem only for people that committed crimes," and that "custody hearings," a recently created first court appearance for people detained, should be terminated. He also stated that he would push to lower the criminal majority age and raise the periods of sentencing. As part of the Criminal Justice Network, Conectas has a permanent advocacy effort in Brasília and is constantly looking for new ways to shift public and official opinions toward more progressive criminal policy. Carceropolis is a new platform that allows the viewing of available data of the Brazilian prison system all the way down to individual prison facilities.

One of Bolsonaro's campaign banners was to give security forces carte blanche to kill on duty, which has been echoed by the new governors of Sao Paulo and Rio de Janeiro, the two most populous states in Brazil. This rhetoric is especially dangerous in a country that employs the most lethal police force on earth, and where accountability for police activities has never been fully implemented in the democratic years, largely due to the shielding of violent acts by the justice system.

While civil society has been pressuring governments to review accountability mechanisms for police activity, a 2017 law designed to take investigations of army operations within the country away from civil institutions has been deliberately misinterpreted by local police forces. Their interpretation would allow all alleged crimes committed by military police to be tried before military courts and investigated internally, by peers of the alleged perpetrator.

The case will ultimately have to be settled by the Supreme Court, just like several flagrant rights violations still pending, but until that happens, all cases that had their jurisdictions affected are in a judicial limbo, severely limiting the possibility of a timely response for victims of institutional violence.

Other campaign promises were validated on day one of Bolsonaro's presidency. The LGBTI+ rights secretariat has been extinguished from the human rights ministry, and the system for the regulation of indigenous lands has been moved from the ministry of justice, which has participation mechanisms, to the ministry of agriculture, now manned by people close to the agrarian-extractivist industry. Marginalized groups will be targeted by the executive and legislative branches, who will rely heavily on a justice system that is elitist and expensive to access. Conectas has long exposed how internal mechanisms of control deny judicial independence for younger, would-be progressive members of the justice system.

It remains to be seen if the judiciary and public ministry will strengthen their roles as guardians of the constitution and international obligations or if they will simply refrain from interfering in favor of long-kept institutional privileges and an idea of stability. In any case, Bolsonaro will appoint at least two justices to the Supreme Court, certainly with a narrow view of human rights; that is if he does not follow through with the shortly defended idea of raising the number of members of the Supreme Federal Court (STF) to 21, from the present day 11, allowing him to appoint an additional 10 justices and perpetuating his ideology far past his presidency.

All this comes in the midst of strong rhetoric against organized civil society. As the now president remarked in his victory speech he would "put an end to all activism in Brazil." On day one, a presidential decree gave powers to his secretary of state, a reformed general, to "monitor" all NGOs' work, which was strongly denounced by civil society, who is preparing to fight the measure in Congress.

But perhaps the most important effect of the latest election is showing how little sway the rule of law (estado democrático de direito) has on Brazilian society, influenced by an inflated sense of impunity towards patrimonial crimes and corruption scandals. Terms like human rights, democracy and fair trials have a bad connotation for a large segment of the population, who view such terms as "ideological" and limited. Perhaps this reflects the historical distancing of the main population from institutions, something that can only be remedied by further democratization, transparency and education, none of which seem to be priorities for the new government.