The offensive strategy against governors and the legal strategy of the Federal Attorney General’s Office (AGU): democratic erosion and subversion of legal argumentation

June 9, 2021

On May 27, 2021, the Office of the General Counsel for the Union (AGU) was activated by the President of the Republic, Jair Bolsonaro, to act against the restrictive measures imposed by the governments of the states of Pernambuco, Rio Grande do Norte, and Paraná, which have been trying to control the Covid-19 pandemic.

The AGU filed a Direct Unconstitutionality Lawsuit (ADI 6855) aiming to obtain from the Federal Supreme Court the suspension, in an injunction, of the state decrees that determined the adoption of lockdown and curfew measures, as well as, in the merits, the declaration of the alleged unconstitutionality of such normative acts. The petition presented, however, is nothing more than an unfounded and fallacious legal construction. Its arguments deviate from the purposes of the democratic legal system of the 1988 Constitution (CR/88). This is yet another implementation of the erosion of democracy in the rhetoric and legal field by the government of President Bolsonaro.

What is this argumentative content? What would be the objectives of the President and the AGU evidenced in such a phenomenon? Is there an institutional attrition in Brazil? These are some of the discussions that can be found in this text.

The (un)control of the pandemic in Brazil

Although more than a year has passed since the beginning of the Covid-19 pandemic and there are already vaccines being produced and administered against the disease, the public health situation in Brazil is still completely out of control. In fact, the year 2021 has been even more catastrophic for the country as far as the pandemic is concerned. The frightening record of 4,249 deaths per day reached in the month of April, as well as the 70% increase in the number of deaths from the coronavirus in May, in comparison with the average recorded last year, are some examples of the worsening situation.

In this scenario, several Brazilian states and municipalities have decided to adopt more restrictive measures to combat the pandemic, as was the case of the states mentioned in the ADI filed at the behest of the president. The state of Rio Grande do Norte, for example, besides the constant lack of professionals to work on the front line, already has a suspected case of death caused by the new variant discovered in India.

In Pernambuco, the number of confirmed cases exceeded 500,000 last Monday (06/07/2021) and the indicators remain high, with the record of 111 deaths by the coronavirus in 2021 registered yesterday, June 8th. In Paraná, the number of cases and deaths from Covid-19 has been growing exponentially since March 2020 and has been showing a considerable worsening, with bigger jumps in the indexes, starting at least from February and March of this year, which has caused a real collapse of the state health system.

These states are governed both by parties that oppose Bolsonaro (PSB – Pernambuco and PT – Rio Grande do Norte) and by a party aligned to the government (PSD – Paraná). This aspect seems to indicate that the president of Brazil is totally opposed to any attempt supported by science to minimally control the coronavirus contagion in the current pandemic context.

Also in April 2020, the Federal Supreme Court had already decided for the autonomy of political entities – states and municipalities – to adopt measures to address the pandemic, recognizing the common competence (art. 23, II of CR/88) and concurrent competence (art. 24, XII of CR/88). However, this does not seem to have been enough to stop the president’s impulses to boycott the public policies established in the country against the spread of the disease.

The fact is that President Jair Bolsonaro constantly and at all costs tries to hinder the efforts to combat Covid-19, whether through his negationist stance presented from the beginning through his speeches and the agglomerations caused; the norms issued by the federal government due to the pandemic; the sabotage of the Ministry of Health; or the irresponsible and genocidal refusal to purchase vaccines to immunize the population. This Bolsonarist management oriented to boycott the sanitary measures against the virus is demonstrated, even in the report produced by the Human Rights Watch, released in January this year. Its omissions and measures translate the deliberate search for a herd immunity that has already cost the lives of thousands of Brazilians.

ADI 6855 appears, then, as another of these presidential attempts to interfere and frustrate the confrontation of the health crisis by the states. The petition signed by the Union’s General Attorney André Mendonça, together with Bolsonaro, draws attention for its fundamentals, which invoke supposed risks to individual liberties and are not in line with an adequate hermeneutic reading of the 1988 Constitution. A logic very similar to the one adopted in the judgment of the restrictive measures for religious temples and cults (ADPF 811).

The contents of ADI 6855

In its grounds, the ADI No. 6855 presented questions the democratic legitimacy of the restriction measures imposed by the governors of Pernambuco, Rio Grande do Norte and Paraná.

In summary, the AGU claims the need to limit what it calls an “excess in the handling of emergency powers”, using as grounds (I) the Resolution of the European Parliament of November 13, 2020; (II) the Venice Commission; (III) Legislative Decree No. 6/2020; (IV) Law No. 13,979 of February 2020; (V) the Pact of San Jose de Costa Rica.

The excerpt taken from the Resolution of the European Parliament reiterates the need to preserve fundamental rights in emergency situations. Likewise, the excerpt reinforces the limitation of impacts on the rule of law and democracy. In the same sense is the pronouncement of the Venice Commission.

Legislative Decree 6/2020, the Pact of San Jose da Costa Rica, and Law 13.979/2020 were highlighted as important measures to combat the advances of Covid-19.

The AGU argues that none of these normative diplomas would have the power to transfer to political entities the possibility of enacting and legislating on generic restriction measures. The AGU’s central reasoning is to reinforce that the political and administrative measures taken against the advancement of Covid-19 are alleged attacks on fundamental freedoms and rights.

From this perspective, the AGU’s petition harangues the Covid-19 protection measures adopted by local political entities, even cunningly calling the current Brazilian context a “dystopian scenario. Its strategy is to use valid legal baggage in a displaced way, when convenient, to reinforce its whole fallacious argumentation, as if fighting the pandemic were synonymous with the extension or emergence of authoritarianism in Brazil.

The proposed action presents itself as democratic, defender of fundamental rights and guarantees, but does not consider the need for restrictions to preserve life. The wordplay imposed is of an autocratic political project disguised as democratic. It is a performative contradiction in search of a normalization of Bolsonarist mismanagement.

It is possible to conclude that, behind the arguments raised by the AGU, the motivations of the President of the Republic evidently serve a specific interest, morally unjustifiable and beyond reason, considering that Brazil surpassed 473,000 Covid deaths on June 6 and has already registered more than 70,000 cases in 24 hours, and may reach up to 115,000 cases per day. Even in the face of the worldwide downward trend, with advances in several countries, Brazil registered the highest numbers of new cases and deaths in the American continent.

Among the abstractions made by the Union’s General Attorney André Mendonça, we are also struck by the use of the doctrine of the Argentine professor Roberto Gargarella, who criticizes the political authoritarianism characteristic of Latin America, highlighting the history of violations of the continent’s constitutions. By analyzing the structure of Latin American constitutions, Gargarella concludes that such constitutional texts allow a greater concentration of powers in the Executive Branch, a phenomenon called hyper-presidentialism.

Gargarella himself refers to Bolsonaro’s administration as “capricious, and of catastrophic consequences. The mentioned jurist, through The Lancet magazine, reminded that the greatest threat to Brazil would not be the virus, but the president himself, whose attitudes commonly point to arbitrariness and irrationality.

The author criticizes the process of democratic erosion that the current Brazilian Democratic State of Law has been experiencing and points out as a probable cause the concentration of powers in the Executive branch, never referring to the restrictive measures adopted by state governments as authoritarian or unreasonable actions, as André Mendonça seems to indicate.

It so happens that ADI and its contradictory argumentation can be framed as an element that integrates Jair Bolsonaro’s attacks on democracy – this one responsible for a true democratic erosion.

Democratic erosion and the erosion of legal institutions

Democratic erosion can be defined as “the incremental, but ultimately still substantial, process of decay of the three basic predicates of democracy: competitive elections, constitutional rights of free speech and association, and the rule of law”.

Thus, erosion promotes a substantial shaking of democratic structures, with the deterioration and decomposition of democracy into its fundamental elements. Because it is a slower and gradual process, authors Ginsburg and Huq understand that this is the most common contemporary form of institutional rupture, with the strategy of inserting antidemocratic elements.

It is through this strategy that the initial petition of ADI 6855, elaborated by André Mendonça, “bases” its argumentation. The institutions engaged in fighting the pandemic are put as virtual enemies of the population, in an attempt to blame the solutions created and developed by political entities committed to life. It is used an argument that appears to be democratic, but materially it is not.

For Mendonça, there is a supposed systematic attack on individual liberties against citizens. The lawyer reiterates this hollow argument throughout the petition. The data reveal the opposite, as already demonstrated: Brazil is going through the biggest health and hospital crisis in its history, in which there is a genuine hecatomb with the Brazilian population.

This element is ignored by Mendonça. The lawyer follows the model of President Bolsonaro: attacks and institutional damage to the Brazilian democracy. Furthermore, he purposely displaces the democratic legal mechanisms to what suits him, instead of using an adequate hermeneutic structure of the legal norms for the concrete case. Thus, the contradictory and fallacious rhetoric attempts to call into question the unblemished legal and democratic legitimacy to deal with the measures to combat Covid-19.

Finally, there is another relevant problem in this context: Justice Marco Aurélio Mello is due to retire on July 5, at which time a new appointment should be made by the then president of the Republic.

The name suggested is precisely that of André Mendonça. In this sense, it is possible to question the possible political and legal implications of this probable nomination.

(Brasília – DF, 04/29/2020) President of the Republic, Jair Bolsonaro, during the signing of the Term of Office that gives possession to the Minister of Justice and Public Safety, André Luiz de Almeida Mendonça. Photo: Isac Nóbrega/PR

The fact that the candidate for the vacancy on the highest court in the country deliberately distorts arguments in order to give in to the whims of the president of the Republic sets off a red alert for a possible instrumentalization of the court for political purposes, in disharmony with the fundamental rights and guarantees of the 1988 Constitution.

It is necessary to remain vigilant in the face of these signals. The fallacious legal argument is not a lack of knowledge, it is a well-defined political project. It is the true demonstration of the denialism and genocide of Bolsonaro’s administration.

By Nathalia Brito de Carvalho [1], Lucas de Souza Prates [2], Luísa Mouta Cunha [3]

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[1] PhD candidate at the Graduate Law Program of UFMG. Researcher at the Center for Transitional Justice Studies (CJT/UFMG).

[2] Undergraduate student of Law at the Federal University of Ouro Preto. Researcher associated with International Law without Borders (DisF) and the Center for Transitional Justice Studies (CJT/UFMG).

[3] Law student at the Federal University of Minas Gerais. Extension fellow at the Center for Transitional Justice Studies (CJT/UFMG).