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The pandemic shows the constitutional power struggle in Brazil

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It only took five days for the Brazilian Supreme Court to take office Jair Bolsonaro the administration canceled the census last month, citing the Covid-19 pandemic and budget constraints.

Judge Marco Aurélio ordered the government to reverse its course and conduct a constitutionally mandated decade-long poll, which was already delayed once a year. “It is up to the Supreme Court to take steps to make demographic research feasible,” he said.

For many, the ruling – like the scores of others taken by the high court in the coronavirus pandemic – was welcomed in favor of scientific and evidence-based decisions. But it was also a reminder of how active the highest judicial body has become in Brazilian politics.

Since Bolsonaro, a former far-right army captain, came to power more than two years ago, a court better known as STF has emerged as a boulevard, with some saying it is an abuse of the populist leader.

For those close to the judiciary and the courts, this activist stance is supported by the broad Brazilian constitution and guarantees the president’s autocratic tendencies and denial of his stance on the pandemic. For critics, the judge is engaged in “judicial activism” that delegitimizes court decisions.

Those involved see a vicious cycle, each side feeding off each other and gradually weakening Brazil’s weak institutions.

“It is clear that STF has been an activist for a long time [and] it has become more and more. The key issue right now is that we have an executive that is below any standard, which is completely dysfunctional, ”said Filipe Campante, a professor at Johns Hopkins University.

“When you are unable to perform the basic functions of the executive, then other powers are forced. But that feeds the functioning again, because they are not supposed to do it. It feeds the antagonism that Bolsonaro experiences.”

Campant says an example of this is the census, which is “a basic function of the state.” [that] it has shown that the executive cannot and does not want to ”.

But the tension between the 11-member Supreme Court and the executive branch has been revealed even more harshly by the Covid-19 pandemic, which has already claimed the lives of 430,000 Brazilians.

In the past year, the STF has made 9,000 decisions related to the pandemic, according to the court. Most of these resolutions supported the main scientific approaches to fighting the virus, including the use of blockchains and the social exclusion and importation of vaccines.

However, they have angered Bolsonaro as he has steadily reduced the severity of the disease and tried to reopen local economies covered by state governors. Tensions peaked last year with rallies calling for the populist leaders to close the court. He has since encouraged allies in Congress to try to impeach STF justice.

“In Brazil, we are living in a very special time with major conflicts, and the pandemic has greatly improved that. It is clear among people who tried to minimize the distribution disease, those close to the government, and those who recommend caution,” Judge Gilmar Mendes told the Financial Times.

“There has been a lot of criticism from the court in favor of these denial measures. They say we are usurping the powers that should be of the executive branch, but we are confident that we have fulfilled our role within the constitution,” said Mendes, accusing him of politicizing labor.

The Brazilian Supreme Court judge appoints the president and fills him until he retires at the age of 75. Seven of the 11-member seats were nominated by the left-wing administration of the Workers ’Party. One was named by Bolsonaro last year.

Much of the power of the court comes from the size and scope of the Brazilian constitution, which, with more than 70,000 words, is one of the longest and most accurate in the world. The breadth of the letter allows STF to judge the legality of a wide range of issues.

“This puts STF at the center of Brazil’s political debate. If a president – who can also count on the support of the legislature – attacks the constitution, it is the court’s job to set limits,” said Eloísa Machado, a professor of constitutional law at the Getúlio Vargas Foundation.

Opponents say, however, that the court’s interpretation of the constitution is increasingly “judicial activism,” which delegitimizes its authority.

Uziel Santana, President of Anajure, an evangelical the lawyers ’association said the STF last month during a pandemic allowed state and municipal authorities to allow people to ban religious services because the decision was“ flawed from a technical and legal perspective ”.

Brazilian Supreme Court Judge Edson Fachin overturned the impeachment sentences against former President Luiz Inácio Lula da Silv. © AFP via Getty Images

“It is not up to the Supreme Court to act as a legislator, [but] it has been legislating more and more in recent years. That activism interferes too much in the realm of another power, which is not a good thing in a democratic state governed by the rule of law, ”he said.

For Santana, a specific problem was the frequency of so-called monocratic decisions, where only justice can be decided on issues that have large branches for society. Between 1988 and 2018, more than 72 percent of cases ended with a monocratic decision, according to data from the Getúlio Vargas Foundation.

Recently, Justice Edson Fachin single-handedly overturned a conviction against former President Luiz Inácio Lula da Silva, restoring the political rights of the left-wing leader ahead of next year’s election. The decision was then upheld by a full vote after an appeal by the state prosecutor.

“The U.S. Supreme Court has been politicized on some levels, but Brazil is even worse off because you have no party, you have interests. The judiciary has political interests and decisions are made based on political interests,” Campant said.

“You’ll end up in a situation where you lose any legitimacy they decide. Do you think: ‘what are the political interests behind this’? “

Additional news from Carolina Pulice

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