The Weakness of Democracy in Brazil

Written for my Political Science class on Comparative Politics, taught by (my unofficial mentor whether he realizes it or not) Dr. William Crowther in the Spring of 2019 at UNC Greensboro.

I loved writing this paper, despite the sleepless nights. Thank you, Dr. Crowther.

Andrea B. Santolim Geller

The Weakness of Democracy in Brazil

PSC 260

Dr. William Crowther

Paper Word Count: 3,134

Introduction

As with many post-colonial nations attempting to modernize, Brazil is one which struggles with being highly industrialized and yet simultaneously underdeveloped. This particular South American country has been mostly democratic since the end of the Brazilian Empire (1822-1889), with the exception of the military coup from 1964 to 1988. In recent years, Brazil has developed numerous programs as well as passed various laws which seek to improve public welfare and restabilize their economy through democratic values. The weakness of the Brazilian democracy is caused by three clear factors: institutional practices that have developed over the years, the inability of the government to address criminality, and a culture of corruption among members of the political class.

As a preface, the weakness of a democracy cannot be identified without first defining a democracy which is strong. A democracy is characterized by an institutional entity which regulates economic, political, and social structures for a body of people who, in turn, legitimize said institution by freely electing representatives to lead them. Santolim references Robert Dahl’s criteria for democracy in his article, briefly delineating the five necessities: “effective participation,” “equality in voting,” “gaining enlightened understanding,” “exercising final control over the agenda,” and lastly, “inclusion of adults.”1 Therefore, a democracy is strong when all eligible voters are sufficiently informed about theirs and others’ involvement in their government so as to be able to participate in policy making and enforcement through elected representatives. Corruption of democracy, then, is defined by a public servant (government official or not) who commits an act which favors their personal interests, inherently dismissing the responsibility of representing the interests of the people.2 Pasquino’s definition implies that an act of corruption need not be technically illegal to be considered corrupt. Any individual or communal act in government which corrupts citizen representation is a weakness in legitimizing their democracy.

Each section will be analyzed by measuring the legitimacy of democracy. In order to do so, it must be understood exactly the style of democracy that the Brazilian 1988 Constitution is meant to establish. Like the U.S. government, Brazil’s three main branches are administrative (executive), parliamentary (legislative), and judiciary.3 Additionally, the government of Brazil is indeed a Federal system, with various levels of government, rather than a unitary one, within which the central government creates all policies. Because of this fundamental structure, from an objective perspective, Brazil is already set up to be ‘checked’ and ‘balanced’ by itself, from within and without the branches. Three concepts that will negate this perspective and be applied in analyzing the causes for Brazil’s democratic weakness are transparency, representation, and consequences of deviation from the first two (and lack thereof).

1. Developed Institutional Practices

Up until recent efforts to minimize the issue of lacking transparency from the federal government, Brazil has seen a history of secrecy, especially with financial transactions. The most significant of these transactions take place in the Audit Courts, which hold most, if not all, authority in determining fiscal and monetary policies. This includes but is not limited to the attribution of money to programs and reforms, dependent also on where said investment actually came from. Taxes are indeed part of the source, however, there are also “organs of external control” which are given the responsibility of managing public resources and the finances thereof.4 Although these organs are supposed to be checked by the legislative branch, Article 73 of the Constitution provides members and ministers of the Audit Courts (and in turn their sub-institutions) certain “warranties, prerogatives, and other impediments given to the judiciary [branch]” which ultimately establishes an autonomy that cannot be considered unconstitutional.5

This immunity to legislative restrictions and judicial review applies also to those external organs which are assumed by management of other countries. Such external organs can be in the form of offices or courts, but are to a great extent independent of Brazilian government jurisdiction, meaning, there are foreign powers who invest in and manage the public resources of the Brazilian people. Furthermore, the Audit Courts have authorities which reside in what is called the “intermediate category.” Because some of the organs are foreign, transactions which occur in between the courts and those organs are also protected by Article 73.6 These intermediate powers conclude the insurance of exemption from being subject to any form of adjudication.

With such extensive measures to avoid scrutiny, the Audit Courts possess complete sovereignty over public resources. Since Brazilian project planning is based on their distribution, “the control of public resources (revenue and expenses) is one of the forms most effective of control over state power, and is the condition for the maintenance of democracy.”7 If the decisions made by ministers of the Audit Courts cannot be surveyed by the elected representatives of the legislative branch, then the representation of the people is entirely invalidated by their inaccessibility to influence government programs. This distortion in representative decision-making is an example of a false legitimization of their democracy through Constitutional avoidances of transparency.

2. Inability of Government to Address Criminality

Brazil’s criminal situation is unique in that it is openly organized, which is a distinct form  from other types of criminal activity. Bailey’s definition of organized crime is conditional upon the number of individuals involved and the extent of time which the crime takes place.8 He presents a chart which compares drug trafficking as being ongoing crimes but with low hierarchical structures, to young gangs/auto theft as fast opportunities but with higher hierarchical structures.9 In Brazil, likely the most popular if not the most significant gang is the Primeiro Comando da Capital, or PCC, based in São Paulo. Guilherme identifies these gangs as “oftentimes [acting] as institutions that establish their own order in their territories, usually through violence and fear. Due to reasons such as government neglect, one of these territories in Brazil is the favela.”10 This institutional gang capitalizes on their standing higher hierarchical structures to maintain also the fast opportunities that also occur in Brazil, effectuating both massive criminal drug economies and instances of robbery/assault. There are three parts of this quote that requires dissection: criminal institutions, territorial dominance, and government neglect.

A criminal institution whose members organize openly is already the epitome of a nation whose democracy is failing. The first of two ironies of the PCC is that since they are relatively built up by the citizenry of the favela region(s) as a whole, it is a relatively parallel representation of the people, as the government is, or should be. The second is that because it is an openly criminal organization, there is a level of transparency that the government does not in turn exemplify. Whereas the actual government’s representation acts in a manner which typically benefits the already wealthy, the comparable institution made up of gangs attempts to combat those benefits through force in order to benefit the poor. The PCC is not only large but sophisticated in its network, with origins in the prison system itself, which is why Guilherme considers it an example of parallel power.11

A distinction between equal and parallel is significant in this context, because the extent of the PCC’s rule (or any institution’s rule) is contingent on the legitimacy provided by the ruled. Criminal dominance of the territory reflects who is making decisions for trade, housing, food, and recreation; in this case, gangs dominate favelas. Such domination results in extreme rates of crime, specifically by those in lower income classes. According to a study of this correlation analyzed by Justus and Kassouf (2013), “the wealth of individuals determines both their economic attractiveness to becoming victims and their capacity to protect themselves from criminals by paying for their protection.”12 The opposite is implied: the lack of wealth of individuals decreases their likelihood to become victims as well as the necessity to pay for protection. Moreover, they “argue that [the] likelihood of failure [is] determined by government spending on public safety, the penalties provided for in the law, and the costs involved in planning and committing a crime,”13 resulting in gang-dominated regions to target wealthier individuals and neighborhoods instead of favelas or otherwise lower-income regions, meanwhile residing in the latter. Because targets are rarely the less “attractive” individuals and rather the wealthier population, said lower-income regions receive less government attention; rather, it (federal spending on public safety)14 is reserved for the victims, not the perpetrators, of crime in order to address the effects, rather than investing in the causes. Conclusively, government neglect is the ultimate cause for gang-dominated territories to continue committing high levels of crime upon regions with greater wealth.

To address this seeming unreachable dominance of crime, the Brazilian government has in mostly recent years hired infrastructure planning experts, outsiders of the favela communities, to entirely redevelop them.15 Public services are being built in seemingly random favela communities, potentially with attempts to minimize the difficulty of transport from lower-income areas to individuals’ places of employment.16 Such programs include the Favela-Bairro in Rio de Janeiro (1995), Baixa Vida (1997) and Habitat Brasil (1998) which are nationwide, and Slum Upgrading Program (1996) of São Paulo.17  Although some studies show that the quality of life has improved for the remaining residents of the favelas that underwent these development programs, there is dispute upon the accuracy of the results for one particular reason: transparency.18 All articles written about these programs, be it case studies or general analysis, acknowledge the inconsistency of records from years’ past. After all, it was only with the Mensalão trials (discussed in section 3) that enforcement of transparency by the legislative branch on executives and the Audit Courts really began. There are gaps in census data and other information on basic necessities for favela residents prior to these programs and even throughout. Even now that annual statistics are being gathered and released online, there is still the question of migrants, displaced by the urbanization projects, who went unnoticed -- because they’d never officially been registered to live in favela regions.19 It is with the guise of positive intentions and the support of new futile transparency policies that these government programs are bypassing public interest to maintain political class authority.

By implementing these projects, the government avoids accountability for why favelas, poverty, and crime exists in the first place. Guilherme employs the power of planning to assert that “the most powerful social actors control the way planning-related data will be interpreted and how planning practices will be prioritized and carried out in their cities or communities.”20 The transparent information that is released depicts almost solely the positive impact, temporarily alleviating the perception of the gravity of poverty-related health issues. Targeting areas with congested gang activity undermines the parallel power and dominance of the criminal institutions, temporarily dismissing the high rates of violence and robbery. Combine the two distractions, and the masses won’t notice that their voice had absolutely no influence on the methods of helping themselves. The average Brazilian does not have access to this information on a regular basis, much less the comprehension thereof. That is part of the reason why a portion of the affected favela residents of the developments migrate to other cities, establish new criminal institutions, and continue living in a trapped situation of possessing little money and even less advocacy about it. Contrastingly, the political class possesses extensive amounts of money and equally strong decisive authority over it. The few elected representatives who may at any point intend on exposing this broadly exploitative dynamic are constitutionally prevented from scrutinizing said decisions (by the Audit Courts, for example) of the distribution of public resources. Without honest transparency and legitimacy of government by the people, those in power have every advantage in strategically avoiding consequences and further sustaining the system from which they benefit.

3. A Culture of Corruption in the Political Class

Evidently, there are instances in which checks and balances appear to occur. A most recent and scandalous example is the Mensalão trial, which actually succeeded in executing consequences for some of those indicted. The trial involved accusations against over forty government officials of vote-buying and money laundering during the administration of President Lula, the former leader of Brazil’s Partido de Trabalhadores (PT), or “Worker’s Party.”  When elected, in order to guarantee votes for his bills, payoffs were provided to representatives through fake loans. The party’s defense was that the money came from something called caixa dois, literally, “second box.”21 Caixa dois is an unofficial, illegal reservoir of money for the government. This box has never been a secret, it is something that all Brazilians are aware of and acknowledge, but it is not an example of transparency. If regulation existed for the box, transactions to and from it recorded, and such records published and accessible to the general public, then perhaps it would be considered a form of transparency, albeit still illegal. Since it is not socially denounced that this box exists, there is a cultural understanding that its reference is not basis for indictment. The absence of cultural shame is here replaced by the acceptance of corruption.

The culture of corruption originates in the same institutional practices discussed in section 1 that use unexpressed and implied powers to ensure near-absolute authority to specific individuals and groups. The first of these powers lies in the ability to refuse cooperation between the branches. The full extent of the trial took an entire seven years, stemming one particular institutional practice to benefit from the length of procedure: Article 55 of the Constitution “grants Congress the prerogative to repeal mandates after all appeals are exhausted.”22 Meaning, the Congressional seats of all accused were legally standing until proven guilty. The Supreme Court had attempted to repeal said mandates at the end of their trials, but were blocked by allies in the chamber of deputies of those accused. This is only one of many Constitutional rights granted to the political class to protect their privileges. Two more are the  foro privilegiado (privileged forum) and embargos infringentes (infringing embargoes). The foro privilegiado asserts that an indicted official will no longer be subject to even Supreme Court trials if they resign from their positions. If they do not resign, however, they are still granted a “greater number of witnesses and numerous opportunities for clarification and appeal, all of which tend to extend proceedings.”23 The embargos infringentes was a category of appeals added during the trials in 2013 which “permit defendants a new vote on criminal counts where at least four of the Supreme Court’s 11 justices vote against a guilty verdict.”24 Both laws prolong verdicts, contributing to the possibility of no punishment for the individuals accused.

Between the caixa dois, foro privilegiado, and embargos infringentes situations, it is evident just how much more privilege political officials possess in contrast to the average citizen. This speaks directly to Dahl’s criteria mentioned in Santolim’s article that is “equality in voting.” Regular trials do not include any of these secondary-chances type of policies. Elected officials are meant to represent the people. However,  once their election is secured, they are no longer bound by the same expectations and parameters of the law. If that is the case, then their superiority over the law is both symbolic and actual. Subsequently, if all officials possess this superiority, then no citizen is appropriately represented, because none of them enjoy the same privileges, negating entirely the criteria of “inclusion of adults,” or representation.

During the Mensalão trials, Brazil exemplified twice their attempts at improving transparency for government transactions so as to avoid scandals like it ever again. The first was President Lula’s ficha limpa (clean record) in 2010. He was able to pass the legislation which stated that a president could not be elected (or reelected) if they had any criminalities in his record.25 It was a risk to pass the bill, but culminated social benefits for him anyway. Lower-income households adored President Lula because as the leader of PT, he advocated for socialist policies, including but not limited to increasing the minimum wage. By passing the ficha limpa, if the Supreme Court were to convict him of any involvement in the Mensalão, a majority of the Brazilian population would be infuriated with the rest of the government. These cultural boundaries of convicting a President in Brazil kept him immune to the scandal at the time, and he was able to be reelected because of it. This is part of one of those instances where certain political officials sought to protect and represent the people, but experienced backlash due to the extent of which the general public was uninformed. The Supreme Court president at the time, the court’s “first and only black justice,” who “rose from humble origins,” was Joaquim Barbosa. Barbosa was regularly challenged during the trials for his harsh decisions by another justice, Ricardo Lewandowski. With a relatively wealthy background and therefore probable to have benefited from Mensalão, Lewandowski emphasized the stigma of indicting ministers, likely with the semblance of wanting to represent the voice of the people, of whom did not want their elected officials (including Pres. Lula, perhaps) on trial.26 In the end, threats against Barbosa and his career as a response to his determination to convict guilty officials led to his early retirement.27 Lewandowski was cheered, and Lula remained untouched.

The second transparency policy passed in 2011, when Pres. Lula also helped pass the “freedom of information law,” meanwhile Congress established the “Truth and Reconciliation Commission to deal with abuses committed under military rule.”28 These two acts combined appeared to be improvements, but around the same time, the aforementioned embargos infringentes was being passed and refusal to repeal mandates by officials who did not agree with the Mensalão trials continued to occur. Regardless, interpretation of transparency is dictated by who is recording the information, and so constrained still by the bias of the government.

The underlying issue, then, is still the presence of false representation of the people, which is strategically difficult to be restructured from within the government and nearly impossible to be eliminated from without. Corruption in the case of Brazil is not only blatant breaking of the law, but rather individuals abusing the advantages of a system which is already hierarchically exploitational.  Hagopian attempts to give the Brazilian government some credit: “Not only have Brazilian executives not encroached on the proper authority of other state institutions, but [the] state’s accountability-enforcement institutions have been actively investigating and prosecuting corruption.”28 This is merely his introduction, because he realizes the problem lies not in the effects of corruption, but in the structural causes thereof: “Brazil’s recent achievements in empowering accountability institutions and enforcement agencies [have] generated demands for political representation that the existing party system has not been able to meet.” (Hagopian, 2016) Brazil’s general public is now, because of the Mensalão trials, beginning to comprehend the extent of their politicians’ corrupt activities and how they have for so long permitted favelas to exist through a lack of transparency, all because they thrive off of the system’s profit.

Conclusion