As Brazil approaches the tragic mark of 560,000 deaths from Covid-19 (likely an underestimate), the second highest in the world in absolute terms and one of the very highest per 100,000 people (265.15), cries for the accountability of the Government, in particular the President, are becoming louder. Since the end of May 2021, protests against Bolsonaro have been growing across Brazil, including in all 26 capitals and the federal district (Brasilia), and abroad, in more than 40 countries, despite disputes over the appropriateness of street demonstrations during a pandemic, and fear of getting infected, which likely keep the numbers lower than they would be. These protests have been fueled in part by the findings of the Commission of Parliamentary Inquiry (CPI) established in late April 2021 to investigate the federal Government’s response to the pandemic. The CPI seems to be gradually confirming and making more salient an already widespread conviction that the federal Government has been negligent, incompetent, and at times even criminal in its response to the pandemic. Such belief is based on well-known and well-documented evidence that the federal Government, in particular its leader, Bolsonaro, has made a relentless and partly successful effort to sabotage all public health measures attempted by state governors, city mayors, the National Congress and even his own Ministry of Health to combat the pandemic. The CPI has also unearthed strong indication of corruption in the procurement of vaccines.
As of 23 July 2021, no less than 129 impeachment requests against Bolsonaro had been filed in the Lower House of Congress, involving 1,556 individuals and more than 550 civil society organizations, a historic record. There are also several investigations under way against him by the Attorney General’s Office. Only time will tell whether Bolsonaro will ever be subjected to impeachment in Congress and/or criminal proceedings in the courts for his conduct - let alone be condemned. This piece argues that he should be impeached. There is ample indication, and also hard evidence, that the President has indeed committed both political-administrative offenses (‘crimes of responsibility’) and ordinary crimes during the pandemic that justify the opening of both types of proceedings. The political and legal hurdles that need to be overcome in each of these cases are high and, at least for the moment, no prosecution seems likely to occur. Yet, as the British Prime Minister Harold Wilson is supposed to have said, a week is a long time in politics. Bolsonaro’s political situation is far from secure. So the discussion that follows is more than an academic distraction.
The crimes of the President
I think it is useful to distinguish between two different types of inappropriate conduct of the President during the pandemic. The first relates to his duty, as a Brazilian citizen like any other, to abide by the country’s laws and regulations. The second relates to his duty, as chief officer of the federal Government, to adopt measures to protect the lives and health of the population. As we shall see, there is not only strong indication but also hard evidence that Bolsonaro has intentionally, and repeatedly, breached both of them, committing thereby not only illegal acts but also political-administrative offences (‘crimes of responsibility’) and ordinary crimes.
Bolsonaro has repeatedly and defiantly flouted regulations imposing the use of masks in public places, public transport and commercial premises, not only in Brasilia (the Federal District) but across Brazil. He was fined twice by the authorities in the state of Sao Paulo, and was also the subject of a court injunction imposing a fine of R$2.000,00 for each time he disrespected those regulations in Brasilia. Yet he has not changed his behaviour. On the contrary, he continued to circulated without a mask, indicating his total disregard and disrespect for the law. The following passages of the court injunction summarize it rather well:
‘The conduct of the President of the Republic, Jair Messias Bolsonaro, who has been refusing to use a face mask in public acts and places in the Federal District, in public events and places in the Federal District, shows a clear intention to disregard the rules imposed by the Federal District Government… [A]s the highest authority of the Executive Power, the President of the Republic must ensure compliance with all the rules in force in the country... It is no wonder that upon taking office, the President of the Republic undertakes to "maintain, defend and comply with the Constitution, observe the laws, promote the general good of the Brazilian people, sustain the unity, integrity and independence of Brazil", as provided for by art. 78, caput, of the Federal Constitution of 1988. That is to say, the President of the Republic has a constitutional obligation to observe the laws in force in the country, as well as to promote the general good of the population, which implies adopting the necessary measures to safeguard the sanitary and environmental rights of citizens, preventing the spread of a virus that spreads quickly, often silently’
As well as not using a mask, the President has flouted the recommendations of his own Ministry of Health on the importance of social distancing to combat the virus by defiantly going on errands in the city of Brasilia and elsewhere which inevitably provoked large gatherings of curious people and his supporters (who he hugged and shook hands with, always without using a mask). Worse, the President also promoted public acts, including a large one in the Government’s Palace, carnival style, where hundreds of his supporters gathered for hours without masks and with no social distancing .
Such conduct is not simply illegal and subject to civil fines. It also constitutes the ordinary crimes of ‘exposure of another person’s life and health to risk’ (Article 132 of the Penal Code) and breach of a preventive sanitary measure (Article 268 of the Penal Code). Moreover, the President’s conduct also constitutes political-administrative offences (‘crimes of responsibility’) as deliberately breaching laws is a direct violation of Article 78 of the Constitution and of a basic tenet of the principle of the rule of law also enshrined in the Constitution (Article 1).
But flouting pandemic regulations was not the only, nor even perhaps the most serious of the crimes of the President. He has also incited the population to commit crimes, which is in itself a crime in the Brazilian Penal Code (incitation to crime, Article 286). He has done so by encouraging people to flout pandemic regulations and, worse, to invade public hospitals to check if the reported hospitalizations and deaths from Covid-19 were not a plot of the press to undermine his Government. Some did follow that prompting, committing thereby the crime of ‘putting at risk the safety and the functioning of a service of public relevance’ (Penal Code, Article 265).
There is also compelling indication and evidence of Bolsonaro’s dereliction of his duty to protect the life and health of the population. Public health in Brazil is a concurrent competence of the federal, states, and municipal governments (Articles 23, 24, and 196 of the Federal Constitution), and the federal Government has traditionally taken the lead on public health initiatives. The federal Ministry of Health has not only by far the largest budget compared to any state (let alone municipality), but also the technical capacity and coordination potential required during a pandemic. Such capacity had been tested and proven throughout the previous decades with internationally praised national programmes of vaccination and primary healthcare. It may seem implausible now but Brazil was one of the countries rated highest in the ranking of pandemic preparedness before the current crisis (22nd out of 195 countries), in great part due to the historical good record of some of these federal programmes.
Yet rather than allow this infrastructure to work to combat the pandemic, Bolsonaro has been doing the exact opposite. He has constantly denied the seriousness of the virus, calling it a ‘little flu’ and a ‘little cold’ on a national TV broadcast and accusing the media of a plot to deceive the population and cause hysteria. As he put it, ‘[t]he people will soon see that they were tricked by these governors and by the large part of the media when it comes to coronavirus.’
If not for reiterated Supreme Court’s decisions confirming that states and municipalities had the constitutional competence to adopt measures independently of approval by the federal Government, Bolsonaro would have likely enacted a presidential decree suspending public health measures across the whole country (see Brazil report in the Oxford Compendium of National Legal Responses to Covid-19).
But President Bolsonaro’s conduct was not simply omissive. He has actually worked relentlessly to sabotage all efforts taken by other authorities to combat the pandemic, including his own Ministry of Health as we saw above (he eventually dismissed his health secretary in the middle of the pandemic and appointed an army general with no experience in the field of health). His own preferred 'policy', luckily rejected by most governors across the country, had at its core a single ‘silver bullet’: a so-called ‘early treatment’ with a cocktail of drugs including Ivermectin, Chloroquine and Hydroxychloroquine, the latter two known for several months to be inefficacious against Covid-19. There is also mounting evidence that Bolsonaro has played an intentional part in the significant delay in the implementation of the national vaccination programme by the Ministry of Health and its current shortage problems. Why Bolsonaro has behaved in such a seemingly irrational manner bewilders many and is still a matter of debate. Some believe in a combination of ignorance and madness. Others believe that some ulterior less noble financial motives in the sale of the drugs he relentlessly promotes (the recent CPI findings of potential large scale corruption in the Ministry of Health in the procurement of drugs and vaccines has added fuel to this hypothesis). But perhaps the most plausible explanation is the one put forward in an impressive study of Bolsonaro’s conduct by the University of Sao Paulo and led by Professor Deisy Ventura: Bolsonaro has been relentlessly trying to implement a ‘herd immunity’ strategy of spreading the virus in Brazil as quickly as possible to enable the economy to reopen and his political prospects of re-election to improve, whatever the cost in human lives.
Whatever his motives, Bolsonaro’s response to the pandemic will likely go down in history as the worst and most catastrophic among all leaders of the world. The question is whether such disaster (560,000 deaths and counting) can and will lead to his political and criminal accountability. In my view, it should.
See Decree 40.648, of 23 April 2020.