Jun 23 2023 | Nº. 72

Editorial

The newest addition to Brazil’s Supreme Court (STF) will be Cristiano Zanin, the lawyer who, along with his wife, Valeska Martins, defended President Lula during his various legal challenges over the past decade. Lula had long been expected to nominate Zanin to this position, which unlike in the United States is not a lifetime appointment. At 47, Zanin will have the right to stay on the court until 2050 when he turns 75, the mandatory retirement age for Brazil’s top jurists. Zanin was a controversial pick. For one thing, critics consider him too close to Lula both personally and professionally. Others noted that Zanin lacks deep jurisprudential experience. Indeed, pundits on the left and right pointed out that there simply is not enough information to judge Zanin’s views on important matters likely to be taken up by the STF in the years ahead. Furthermore, many progressives hoped that the president would pick a woman or a person of color instead of Zanin, a relatively young, straight white man. Most assessments of the nomination considered it either a missed opportunity or a brazen ploy to put a friend in a high place.

And yet Zanin was quickly confirmed. During his confirmation hearing before the Senate on Wednesday, even those aligned with former president Bolsonaro noted that neither he nor any of his predecessors named a foe to the STF, a clear attempt to downplay concerns that Zanin and Lula are too friendly. Others noted that the fact that Lula has gone from incarceration back to the presidency is a testament to Zanin’s legal prowess. Even Senator Sergio Moro, the former judge who sentenced Lula to prison before joining the Bolsonaro administration, posed mild questions, noting explicitly that he respected Zanin as a lawyer who played his part as Lula’s chief counsel. Senator Flavio Bolsonaro, the former president’s son, was also surprisingly deferential. Part of the reason Zanin sailed through his hearing probably has to do with an enduring sense that presidents have the right to a great degree of discretion when selecting justices. It could also be that few senators want to end up on the wrong side of an STF minister in a political climate that remains unsettled. Before the end of the year, Lula will get the chance to name another STF member when Rosa Weber retires in October. Many expect that process to be more heated than the one that wrapped up this week. 

While Zanin faced the Senate, Lula was once again abroad, visiting Europe for the third time in five months. On Tuesday, June 20, Lula arrived in Rome for a meeting with the Italian president followed by a sitdown with Pope Francis and then a brief event with far-right Prime Minster Giorgia Meloni. On Thursday, Lula arrived in Paris where he will meet with President Emmanuel Macron. He is also expected to take the stage at a Coldplay concert at the personal invitation of the band’s frontman Chris Martin, who met privately with Lula when the band performed in Brazil earlier this year. Martin also offered to perform at COP30 in Belém in 2025. While some allies and opponents alike complain that Lula is spending too much time away, there are clearly plenty of high profile figures eager to meet Lula as his administration reaches the six-month mark. 

Highlights

• BOLSONARO’S TRIAL. On Thursday, June 22, the Brazilian Superior Electoral Court began the trial of former president Jair Bolsonaro. He is accused of having used executive power and the government bureaucracy to favor his candidacy for re-election in the October 2022 dispute. In addition to this original accusation, made by the Democratic Labor Party (PDT), the trial will likely deal with evidence indicating a series of attacks on the electoral system and democracy. The original accusation was. If convicted, Bolsonaro may be ineligible to run for public office until 2032. If that happens, he will lose the right to participate in the next three elections, which include the contests for the positions of mayor, governor, congressional representative, senator and even president of the Republic in the 2026 race. Bolsonaro's return to electoral disputes would only occur when he was 75 years old.

• MEETING WITH AMBASSADORS. In this case, the PDT questions the meeting that Bolsonaro held with approximately 60 foreign diplomatic representatives, including ambassadors, in which the then president attacked the electronic ballot box and the Brazilian electoral system. The meeting took place in July 2022 at Palácio da Alvorada, the official government residence, three months before the election in which Bolsonaro would be defeated by the current president, Luiz Inácio Lula da Silva. The event was broadcast on the state television channel and retransmitted on official social networks. The PDT argues that Bolsonaro's action at that time involved using the government structure for his own benefit and against the candidacy of Lula, his rival.

• BOLSONARO'S DEFENSE. The ex-president's defense argues that there was no violation of electoral legislation, as Bolsonaro had the prerogative, as head of state, to conduct Brazil's relations with foreign representatives present in the country at that time. In recent press interviews, Bolsonaro has been saying that Edson Fachin, at the time the president of the Superior Electoral Court, had also held a meeting with diplomats, months before, to praise the Brazilian electronic voting machines. In his defense, he says he believes he had the right to show the world that the Brazilian system was not free from challenges. To justify this distrust. Bolsonaro cites a 2018 document, which deals with attempted hacker attacks on the ballot box.

• UNCERTAIN FUTURE. The decision on the future of the former president will be taken by the seven judges that make up the Superior Electoral Court, which is the highest body of electoral justice system in the country. The president of the court is Justice Alexandre de Moraes, who is also member of the Federal Supreme Court, equivalent to the Supreme Court in the United States. Moraes has been a relentless judge in cases involving attacks by Bolsonarists on democracy. The prognosis for Bolsonaro is unfavorable. If he is convicted, the former president will likely support the candidacy of other members of his party and allies of the extreme right. More than a third of the Brazilian electorate say they are Bolsonarists and tend to think that Bolsonaro will have been wronged if he is convicted. The verdict may be issued by the end of this week, but the court has a maximum period of up to 60 days to decide the case.

• COUP PLANS. This week there were new revelations about the coup d’état efforts planned by the Brazilian military. The evidence comes from the investigation that the Federal Police are carrying out by examining a cell phone seized with a court order from Bolsonaro's former assistant, Lieutenant Colonel Mauro Cid. Among the documents found are legal opinions indicating possible paths for the arrest of ministers of the Federal Supreme Court, the summoning of the armed forces to play a political role in the coup, and the cancellation of the presidential election of October 2022. The monitored conversations involve military personnel who were and are on active duty, which may lead to inquiries, investigations, and charges filed in military and civil courts. The holding of trials related to these new revelations would be a test for the Lula government, which seeks to purge Bolsonarist coup plotters from the armed forces, but has encountered resistance from the military.

• COUP INVESTIGATIONS. This week the Parliamentary Commission of Inquiry that is investigating the failed attempt at a coup d'état, which took place on January 8, heard 16 people involved in the attacks on democracy in Brazil. Silvinei Vasques, the former general director of the Federal Highway Police, was the first person to testify. He is accused of having politicized the institution and of having ordered agents to prevent Lula’s voters from going to the polls during the 2022 presidential election.

• MST UNDER CONGRESSIONAL SCRUTINY. The Parliamentary Commission that is scrutinizing the activities of the Landless Workers’ Movement (Movimento Sem Terra) approved summoning João Pedro Stedile, an economist and one of the best-known leaders of the movement. Stedile's visit to the joint committee should intensify disputes within the commission, whose sessions has been rather uncontroversial so far.

Feature Article

by Graziella Testa

Arthur Lira, the Congressional Politician Who Thinks He Is  the Prime Minister

The contradictory signs of the first six months of President Lula's third term can confuse anyone who proposes to analyze Brazilian politics. After calmly approving an issue as relevant as the fiscal framework, President Lula struggled to pass simple legislation such as the reorganization of the number of ministries in his cabinet. In this article, we address the institutional design of Brazilian presidentialism and the changes that the relationship between the executive and legislative has undergone in the last five years in Brazil. We argue that shallower analyzes have focused on the strengthening of the legislative over the executive, but Lula's biggest challenge is not the strength of Congress but the degree of centralization of power in the hands of the president of the Chamber of Deputies, the lower house of the Congress

Building governability is never an easy task for minority governments, but in multiparty systems this challenge is even greater. The Brazilian presidential model is different from the American one because scholars associate it with the proportional electoral system, which generates the need for the governments in power to include several parties. More than that, the number of political parties in Brazil has increased gradually since the beginning of the New Republic in 1988, reaching 30 parties in 2018. This means that the elected president needs to make alliances with other parties, including some that were opponents during the election campaign. There are still two characteristics that interfere with this governability: the first is the presence of political parties from the so-called centrão (big center) with little attachment to ideological positions and more concerned with obtaining resources for their electoral constituencies. The second is the constitutional format and the practice of adding public policies measures to the constitution, which means that everyday decisions need higher percentages of the total number of members of the House and Senate to be approved.

Recently, the subject of the supposed strengthening of legislative power over the executive has appeared in different journalistic vehicles and has become almost common sense. From conjunctural analyzes that credit the phenomenon to Arthur Lira, the president of the Chamber of Deputies, to more exaggerated and definitive interpretations that speak of a “de facto semi-presidentialism.” The fallacy in these analyses is that the executive increasingly loses power to the legislative branch and depends on it to govern. Our argument is that the strengthening of the legislature was a consequence of the profile of President Jair Bolsonaro, who had no ambition to develop and execute public policy. On the other hand, the centralization of the work of the legislative branch is a reality that hinders the relationship between the executive and the legislative.

A first point that needs to be made is that the legislature has always had central importance in the formation of different governments and the design of public policies in Brazil. Since the enactment of the 1988 Constitution, the Congress has played an inescapable role for those elected to the executive, even though establishing a political agenda has shifted to the president of the republic, who initiates most of the legislation approved in the House. In political science literature, it is not new that the legislature has relevant weight and political parties are fundamental in the construction of the coalition, that is, parties that choose to compose the base of the government and share with the head of government the prioritization of issues and implementation of public policies. The legislature even uses the formal prerogatives of the president's agenda, such as the power of a presidential decree, to approve its own agenda. None of these phenomena is new or can be credited to any president of the Chamber of Deputies or the president of the republic.

There have been, however, some relevant changes in the relationship between the executive and the legislative in the last five years. The first that needs to be highlighted was the performance of the Congress during social distancing as a result of the COVID-19 pandemic. On the one hand, the legislature assumed a prominent role and autonomy to respond to the numerous challenges posed by the pandemic and an inert and denialist executive under President Jair Bolsonaro. The second change was the centralization of work in Congress. During social distancing, the legislature was reduced to holding general sessions, without the functioning of the committees and other bodies, which are the main spaces for including the demands of congressional members and civil society. Therefore, two processes took place in a parallel manner: on the one hand, the legislative occupies a vacuum of power left by the executive and, on the other, the functioning of the legislative bodies is centralized in general sessions and, therefore, in the hands of the  president of the two chambers of the congress.

Lula's election upset that balance. Lula’s more “policy-oriented” profile clashed with the tremendous powers enjoyed by Arthur Lira, re-elected president of the Chamber of Deputies and a former supporter of Jair Bolsonaro. At the same time, the main tool used by Bolsonaro to build a coalition, the so-called “secret budget,” in which resources were distributed to politicians without any accountability, was ruled unconstitutional by the Supreme Court in January 2023. Lula seeks to build his coalition through party leaders rather than through the president of the Chamber of Deputies. To do so, he has two tools: sharing ministerial positions with parties that are ideologically distant from the Workers' Party or distributing earmarked parliamentary amendments to the budget in order to build ad hoc majorities in specific cases. Both remedies are bitter and will certainly result in a loss of popularity, in addition to the resistance of Arthur Lira. It is not clear which path Lula will take or which unlikely allies he will embrace. What we do know is that governance depends on democratic stability, the most precious asset we can aspire to.

Graziella Testa holds a PhD in Political Science from USP and is a professor at the School of Public Policy and Government at Fundação Getulio Vargas. She has been a visiting scholar at Universidad Nacional de San Martín and at Harvard University. She is a contributor to the Konrad Adenauer Foundation and a member of Legis-Ativo / Estadão, where she also hosts a podcast about the legislative branch of government. She is a columnist for the magazine  Revista Problemas Brasileiros and Agência Estado and a political risk consultant to the financial and retail sectors. She researches Brazilian politics, focusing on legislative studies and informal institutions.

Feature articles express the opinions of the author and do not necessarily reflect the opinions of the editors or WBO.