Supreme Court’s veto of Federal Police chief invoked the constitution – any appointment can be challenged if it is not: impersonal, moral, and in the public interest.
The institutions of the Brazilian state function as a counterweight, limiting the actions – in this case – of a president who does not have the self-control and wisdom to understand the ethical, formal, and informal limits guiding those who exercise power.
Like unsuspecting prey succumbing to an octopus’s tentacles, the Bolsonaro government is beginning to feel the restraining power of the state.
Brazil’s institutions have shown their power to restrain the presidential pen when not employed to the standards of the constitution – and shown that being a friend of the president is not enough to qualify for Justice Minister, or head of the Federal Police.
Choice of the new Justice Minister
By trying to shoehorn the secretary of the presidency, Jorge Oliveira, into the Ministry of Justice, and Alexandre Ramagem into command of the federal police, Bolsonaro only gave ammunition to his outgoing justice minister Sérgio Moro’s accusations: that Bolsonaro’s pressing for his personal appointments, and his undue interference and non-impartial conduct, put the state at risk, as well as diminishing public morality.
Within 24 hours Bolsonaro had walked back his nomination of Oliveira for Justice, and produced another nominee, André Mendonça. Oliveira’s main qualification had been his link of trust with the president – his name was put forward by Bolsonaro’s sons. Mendonça,on the other hand – while also being close to the president – has a 19-year career as a federal government lawyer.
How to choose a head of the federal police?
Ramagem was one of the sources of conflict between Moro and Bolsonaro. After Moro vetoed the name, and resigned, Bolsonaro thought he had full powers to go ahead with the appointment. But the tentacles of Brazil’s institutions caught up with him.
Supreme Court veto
Supreme Court justice Alexandre de Moraes,in his judgment vetoing Ramagem, said:
“the power of the State in a Nation under Law is that the State is limited by the Law (…). The purpose of judicial review is to prevent acts incompatible with the order laid down by the constitution. This includes appointments to public positions, which are required to comply not only with the principle of legality, but also with the principles of being impersonal, moral, and in the public interest”.
In other words, the president of the Republic cannot appoint anyone he wants to public office, if the nomination is not what the constitution demands it should be: impersonal, moral, and in the public interest.
Restraining presidential caprice
Capriciousness in the presidency needs to be constrained by the tentacles of the state. Over recent weeks, Bolsonaro: tried to limit the power of state governors to decree a public health quarantine; tried to use his presidential pen to order that churches and temples be opened because he considers them essential services; and sought to appoint friends to important public posts in a way that was far from being carefully-considered or in accordance with the proper customs of the Republic.
The institutions of Brazil’s democratic state, established by a strong constitution under the rule of law, rejected all these attempts, using compliance with the law and the constitution as its means. The tentacles of the institutions will continue to function as a counterweight, to limit the actions of a president who is lacking two of the essential attributes for governing: self-control, and the wisdom to understand the ethical, formal and informal limits of the exercise of power.