Brazil’s Supreme Court pushed back against an attempt to cancel participatory councils

On June 12, right-wing Brazilian President Jair Bolsonaro faced his first defeat at the Supreme Court. The Court issued an injunction blocking part of his recent decree, which would have dismantled important tools for civil society involvement in policymaking. The decree called for the elimination of more than 50 participatory councils, which give civil society an official role in designing public policies and monitoring policy implementation.

Brazil’s participatory councils originated with the country’s 1988 Constitution, written after its transition to democracy. By attacking the councils, Bolsonaro has challenged one of the foundations of Brazil’s democratic order.

Participatory councils are institutional venues that bring together representatives from civil society and the government. During monthly meetings, councilors develop policy proposals, pass policy initiatives, set budgets, and oversee the implementation of policies on the ground. Participatory councils operate at all levels of government across a range of different policy sectors.

Rather than just relying on voting, lobbying, and protest, participatory councils give civil society a seat at the table in deciding on policy issues. For instance, as shown in Lindsay Mayka’s new book, Brazil’s National Health Council brings together patients, health care workers, and service providers from throughout Brazil. During monthly meetings, councilors work with bureaucrats to make decisions on issues such as new surveillance systems to detect Zika and dengue outbreaks, the allocation of funds for basic reproductive health care, and potential sanctions for a local government that has misused health funds.

Over the past three decades, councils spread to a wide range of policy areas. When Bolsonaro came into office in early 2019, there were nearly 90 participatory councils at the national level in areas ranging from the environment, to crime and security, to health care.

In April, to mark his 100th day in office, Bolsonaro issued a sweeping decree to eliminate more than 50 of Brazil’s participatory councils at the national level. The decree shutters long-standing councils for disability rights, rural development, biodiversity, and LGBT rights, among others. In a tweet, Bolsonaro justified his actions by arguing that participatory councils provide a space for special interests to “deliberately disrupt Brazil’s development of Brazil,” ignore the law and go against the “real needs of the population”.

Dismantling the councils is the latest step in Bolsonaro’s efforts to roll back policies associated with the leftist Workers’ Party (PT) governments of Lula da Silva (2003-10) and Dilma Rousseff (2011-14). During this time, the PT created additional participatory councils and invested resources in strengthening participation at all levels of government.

Given that many of Bolsonaro’s supporters have little in common other than their opposition to the Workers’ Party, an attack on participatory councils may be seen as a way to rally Bolsonaro’s base. After all, Bolsonaro is politically vulnerable, given plummeting approval ratings, economic contraction, and a fractured legislative coalition.

Yet while many Brazilians associate participatory institutions with Brazil’s leftist Workers’ Party, many of the most prominent participatory councils were created under centrist and right-wing presidents before the left gained power. The councils are not just a tool of the left. Instead, participatory councils are a standard component of clean democratic governance, much like having transparent accounting practices or disseminating data on policy performance.

In fact, a number of the councils eliminated by the decree were established by centrist president Fernando Henrique Cardoso (1995-2002). New books by Lindsay Mayka and Jessica Rich point to the Cardoso government as being pivotal for the institutionalization of participatory councils in health, social assistance, and HIV/AIDS.

In other words, Bolsonaro is not simply reversing the Workers’ Party’s policy agenda. He is unraveling an established tool of democratic governance in Brazil.

Bolsonaro’s attack on participatory councils would damage Brazilian democracy, given what we know from recent research. The participatory councils deepen democracy by including groups that typically have less influence through elections or lobbying, such as the poor.

This decree also eliminates a key tool in the fight against corruption. Participatory councils increase transparency and oversight of budgets. Moreover, the expansion of Brazil’s policymaking councils has been tied to more efficient use of public funds, yielding a reduction in infant mortality among the poor.

More broadly, dismantling the participatory councils undermines the stability of democratic institutions. As Steven Levitsky and Daniel Ziblatt have argued, democracies die when politicians give up on institutions in favor of defeating their political opponents. Shuttering the councils is part of a broader step away from democratic norms in Brazil.

The Supreme Court’s recent injunction represents a partial victory for Brazil’s councils. On the one hand, the decision ruled that Bolsonaro could not eliminate any participatory council that had been mentioned in a law, protecting most of the councils slated to be eliminated. On the other hand, the ruling does not protect participatory councils that were created through presidential decrees or administrative acts, such as the National LGBT Rights Council and the National Commission for the Eradication of Slave Labor. These councils remain in legal limbo while lawyers argue that they form part of Brazil’s commitments under international law and thus cannot be eliminated through a decree.

Beyond the details of the injunction, the Supreme Court’s ruling was a landmark one as the first court decision to uphold the councils’ constitutionality. All 11 Justices affirmed the importance of participatory democracy as a foundation of Brazil’s 1988 Constitution. Thus, the decision refuted Bolsonaro’s claims that participatory councils are merely a tool of the left. While the fate of many participatory councils remains uncertain, this recognition by the Court may help supporters of the councils to advocate for their survival.

Carla Bezerra is a PhD candidate in Political Science at the University of São Paulo (USP) and a researcher at the Brazilian Analysis and Planning Center (CEBRAP).

Lindsay Mayka is an assistant professor of government at Colby College and is the author of Building Participatory Institutions in Latin America: Reform Coalitions and Institutional Change (Cambridge University Press, 2019).