Supreme Court Justice Luís Roberto Barroso observed the occurrence of a “relatively new” phenomenon in democracy in 2019, when he suspended excerpts from a decree issued by President Jair Bolsonaro that altered the structure of Conanda (National Council for the Rights of Children and Adolescents).
According to him, democratic setbacks in the world today are no longer caused by armed coup d’états. “Instead, the greatest threats to democracy and constitutionalism are the result of specific regulatory changes that appear valid from a formal point of view, which (…) express the adoption of measures that gradually erode the protection of rights and the democratic regime,” said Barroso, citing the book “How Democracies Die” by Steven Levitsky and Daniel Ziblatt.
Two years later, in March 2021, by 10 votes to 1 – by Justice Marco Aurélio Mello – the Supreme Court voted in line with Barroso and declared unconstitutional the decree reducing the number of people serving on Conanda and hindering the participation by civil society on the council. But this has not been the only such democratic threat.
Also in 2019, another presidential decree targeted the structure and functioning of another council: Conama (National Environment Council), the advisory and deliberative body of the National Environment System. The council is one of the most important bodies for Brazilian environmental policy, as it drafts in technical and participatory meetings much of the country’s environmental legislation.
The restructuring reduced the number of voting seats from 93 to 23. It also reduced the seats held by non-business civil society organizations from 11 to 4 and shortened the terms of these organizations from two years to just one, while replacing the selection process from election to random draw. As such, environmental organizations, indigenous peoples, traditional populations, the scientific community and rural workers effectively lost space for representation and participation.
“This alteration threatens the very existence of the council, since it was created precisely to hear these voices,” said the lawyer Júlia Neiva, coordinator of the Development and Socioenvironmental Rights program at Conectas – who is participating in ADPF Case (Allegation of Violation of a Fundamental Precept) No. 623 as an amicus curiae (friend of the court), together with the organization WWF and local institutions such as ISA (Socioenvironmental Institute), Transparency International Brazil, Network of Atlantic Forest NGOs and Climate Watch.
In March, the Supreme Court also had the opportunity to analyze this change, but the case was interrupteby an adjournment requested by Justice Nunes Marques, with no date forecast for its resumption.
‘Pushing through’ change
The decree also raises questions because it recalls the famous cabinet meeting of April 2020, when Environment Minister Ricardo Salles suggested taking advantage of the concern with Covid-19 to “push through” the changes to environmental regulations. “It seems opportune to remember this comment when we are witnessing the dissolution of yet another space for public monitoring,” said Neiva. “It’s as if there were a veil covering the situation, because the appearance is one of normalcy, as if the body continued to exist, but as it stands it cannot function in the way it was intended.”
Although the measure is viewed with apprehension, the lawyer said the expectation is that the same standards used in the Conanda case will also be applied to Conama.
Civil society organizations are key to ensuring respect for two of the most important informal rules of democracy. According to political scientist Jairo Nicolau, from the Federal University of Rio de Janeiro (UFRJ), one of these rules is mutual tolerance; the other is institutional forbearance. “Mutual tolerance is to recognize that rivals, if they play by institutional rules, have the same right to exist, to compete for power and to rule. Institutional forbearance means avoiding actions that, while respecting the letter of the law, clearly violate its spirit. In addition to the text of the Constitution, a democracy needs leaders who understand and respect the informal rules,” wrote Nicolau in the preface to the Brazilian edition of Barroso’s referential work “How Democracies Die,” published by Zahar. Therefore, in the absence of such figures, engagement is needed by players who can remove the veil of illusion shrouding values that are incompatible with popular sovereignty.