(Bloomberg Opinion) -- Jair Bolsonaro has, once again, dealt a body blow to Brazilian democratic norms. Last week, during a live internet broadcast on a national holiday, the president pardoned far-right lawmaker Daniel Silveira, a day after the former military policeman was sentenced to nearly nine years in prison over his calls for supporters to invade the Supreme Court and his incitement of physical attacks against justices. It was, Bolsonaro argued, a question of free speech.
In theory, Brazil's constitution does allow presidential grace. In practice, individual pardons are vanishingly rare. Worse, stepping in to ransom an ally for personal interest, immediately after a near-unanimous Supreme Court ruling and before all legal avenues are exhausted, is a willful and direct affront to the judiciary. It feeds a constitutional crisis and toxic culture wars. Whether Silveira's anti-democratic offenses are covered by the clemency provision isn't even clear. With less than six months to go before a presidential election that he appears unlikely to win, this pardon is also a salutary reminder of Bolsonaro's authoritarian vision of government — with himself as the ultimate arbiter.
Silveira is unpleasant and almost, in himself, insignificant in an episode that has become about more than aggressive online tirades. A lawmaker swept to Congress in 2018's right-wing wave, he gained some notoriety during his campaign when he smashed a road sign in memory of Marielle Franco, a human rights activist murdered months earlier who had been critical of police action in the favelas and denounced paramilitary groups. Elected, he has done nothing of note in legislative terms. That hasn't stopped him getting caught up in an inquiry into disinformation and then in trouble over the video tirade that threatened Supreme Court justices, turning himself into a cause celebre. In one particularly unbecoming episode, he attempted to evade an electronic ankle tag by sleeping in his congressional office.
Last week, he was sentenced to eight years and nine months, fined and stripped of his seat in the chamber of deputies. A decision that was always going to inflame the president, it also tested the mettle of Bolsonaro's two appointees to the 11-member Supreme Court. In the end, only one of the two, Kassio Nunes Marques, voted to absolve the congressman. The second, Andre Mendonca, voted for a lower sentence — though under pressure from seething far-right social media, he later had to defend his decision.
The next day, the president announced a pardon. “This is constitutional, and it will be carried out,” he said during his weekly “live.”
The Supreme Court's justices, with their ability to select and delay cases, took a risk in sentencing Silveira, who has shown open defiance of judicial demands. American University's Matthew Taylor, who studies Brazil and judicial politics, points out that compliance is always a top priority for a Supreme Court. That is never more so than months before a highly polarized presidential election, with an unpredictable incumbent. Now the sentencing has intensified a head-on clash.
Confrontation between the executive and the judiciary has been a feature of Bolsonaro's presidency. Using other branches of power to distract from a poor track record is an old trick that Bolsonaro has embraced. He has attacked the justices and the electoral process, which they oversee. At the height of the pandemic, he joined a rally demanding the court's closure, and in September stirred up tens of thousands of supporters for a show of force, warning elections would be “a farce” and that he would not abide by the rulings of one of his betes noires on the court. “There are three options for me: be jailed, killed or victorious,” he said in one heated speech. “I'm letting the scoundrels know: I'll never be imprisoned!”
Those collisions have stemmed from Bolsonaro's inaction — the judiciary has stepped up to fill the vacuum left by the executive, as around Covid-19 public health measures and data —but also from his actions, as justices in one of the most independent judiciaries in the region have rallied to defend democratic institutions. That effort has come at a cost, given, as Taylor points out, that securing congressional backing in the battle against executive on basic issues like electronic voting has required compromises, including taking a less aggressive stance on corruption.
Even against that background, though, last week's pardon marks a new low point, a dog whistle to the president's core supporters and a warning — and that was before a “free speech” gathering for loyalists at the Planalto palace on Wednesday, at which Silveira was welcomed like a conquering hero.
The tough sentence will inflame Bolsonaro's desire to pack the court with conservative sympathizers — something he has already promised — should he win again. Given the independence and individual weight of Supreme Court ministers, as the justices are known, and a longstanding tradition that has seen them appointed from and loyal to the political establishment, not individuals or single parties, that's easier said than done. Still, it's a worry for checks and balances, and basic norms.
But there's more. Clemency, as early as medieval times, has been intended as an instrument to balance excesses, right historical wrongs or to defuse situations of tension, say when there are anti-government protests. In this case, Bolsonaro has done the very opposite. Much like former U.S. President Donald Trump's use of pardons to shield cronies, distribute favors and display the magnanimity of a sovereign, there's more than a touch of the autocrat here. The Brazilian leader placed himself in the position of adjudicator — l'Etat, c'est Bolsonaro.
Come October, no one can say they have not been warned.
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- For Its Expats, Brazil Is Now the Country of the Past: David Wainer
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Clara Ferreira Marques is a Bloomberg Opinion columnist and member of the editorial board covering commodities and environmental, social and governance issues. Previously, she was an associate editor for Reuters Breakingviews, and editor and correspondent for Reuters in Singapore, India, the U.K., Italy and Russia.
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