On one hand, Brazil’s Public Prosecutor’s Office wants to use society’s decreasing faith in Congress to take its place as legislator, pushing laws that serve its own interests but not necessarily the public’s. Proposed in the name of the fight against corruption, some of these laws excessively increase the State’s power over individuals. To garner popular support and pressure Congress into passing these laws, prosecutors have packaged them into a neat “10 Measures Against Corruption” act that hides their complexity and disguises their more controversial aspects.
On the other hand, a dangerously activist Supreme Court has also decided to legislate, making decisions that are based exclusively on the justices’ personal opinions, explicitly contradicting the constitutional text. The job of the justices is to uphold the Constitution as it is, not change it at will. The supreme Law of the Land shouldn’t be just a set of guidelines. If something in the Constitution is not working, of course it should be changed, but following due process—that is, by Congress and never by those who do not have the democratic legitimacy of the vote. When justices go over Congress’s head and legislate, sometimes they might even make decisions that we like—but then they might not. This creates legal uncertainty and takes away from the people their right to have a say on the laws that will rule over their lives, reducing these laws’ democratic legitimacy.
To complicate things even further, Brazil’s admittedly lousy Congress—which still remains the only government branch that has the democratic legitimacy to legislate (after all, its members were chosen by direct popular vote for this specific purpose)—started acting in a defensive and revenge-seeking way instead of focusing on the urgent reforms the country so desperately needs. Instead of working on modernizing tax and labor laws, social security, and the political process, many representatives spend their time creating laws aimed at granting themselves amnesty for electoral crimes and curtailing the work of the federal police, the prosecutors, and the Judiciary. However, these laws are useless, stillborn, as they would inevitably be struck down by the Supreme Court. Still, these representatives’ actions are already enough to make people trust Congress (and politicians in general) even less, giving more rhetorical ammunition to justify undue interference by the Judiciary and political proselytism by the Public Prosecutor’s Office.
If this mess goes on, Brazil will reach a point inadvertently foreseen by the ever-eloquent ex-president Dilma Rousseff:
“I don’t think whoever wins or loses, neither who wins nor who loses, will win or lose. Everyone will lose.”
This post was originally published in Portuguese. It was also published as an editorial in the 10/12/2016-16/12/2016 edition of Brazilian newspaper A Voz de São João.
Image source: Fabio Rodrigues Pozzebom/Agência Brasil.