Editor’s NoteWe welcome another contribution to our Assessing Emergency Powers During #COVID-19 series, focused on the Brazilian response to the health pandemic. This post gives us detailed insight into issues of transparency, management, accountability and human rights protections in a specific national context, and brings much needed attention to the rights of indigenous peoples facing a myriad of challenges in the context of the pandemic’s many intrinsic and imposed harms. Contributions have covered Italy, HungaryPoland, the United Kingdom, Nigeria, Mexico (see here), and Colombia.

Bolsonaro’s Pandemic Plan: Deny and Do Nothing

It is certainly not uncommon for government leaders to fail to respond timely and adequately to emerging infectious diseases, first by ignoring experts and then by enacting ineffective, heavy-handed, and discriminatory policies to contain and control disease spread. President Jair Bolsonaro is advancing Brazil—the Latin American country currently with the largest coronavirus outbreak—down this path as it heads into its flu season amidst the COVID-19 pandemic. Repeatedly calling COVID-19 a “little flu,” and defying expert recommendations to stay at home to contain its spread, Bolsonaro has prioritized preventing economic harms and pleasing his extreme, right-wing base over protecting the public’s health.

In late March, a judge ordered Bolsonaro’s administration to suspend its #BrazilCannotStop campaign that urged Brazilians to continue with normal life. He has been seen in bakeries and other public spaces shaking hands and taking selfies. Bolsonaro stated in a television interview that “I’m sorry, some people will die, they will die, that’s life” … “You can’t stop a car factory because of traffic deaths.” On April 16, Bolsonaro fired Health Minister Luiz Henrique Mandetta after the two disagreed over Brazil’s coronavirus strategy, including whether to continue social distancing measures. Days later, in Brasilia, the president rallied alongside anti-quarantine demonstrators, shaking hands and coughing into the crowd while protestors called for a return to military rule, dissolving the National Congress and dismantling the Supreme Court.

Bolsonaro’s authoritarian rhetoric and irresponsible leadership—if it can even be called leadership—is exacerbating an already precarious situation, with former Brazilian President Luiz Inácio Lula da Silva claiming that Bolsonaro is leading Brazilians “to the slaughterhouse” due to his failure to prepare the nation for the COVID-19 pandemic. Experts have called Bolsonaro’s actions a crisis within a crisis. Where Brazilians need government to step in and take control, there is too little action. When Bolsonaro does act, such as when he insists that state officials end stay-at-home orders, it is counterproductive and often harmful for most Brazilians. If not checked, the president’s belligerent bullying and botched COVID-19 response may lead Brazilian elites to tacitly permit a return to military rule, possibly informally or even in the form of a coup, to ensure law and order in Brazil—a power grab that the crisis could facilitate, but which would be unlikely to end whenever the pandemic ends.

Bolsonaro’s behavior in his first 16 months in office has hinted toward this extreme possibility. His past military service and present policies—dismantling social protections, attacking educational institutions, and vilifying the press, to name only a few favored tactics—pose a serious threat to Brazil’s young democratic institutions, while increasing high levels of inequality, deepening economic insecurity and further marginalizing minority communities. Just this week, in a statement endorsed by a wide range of U.N. experts, U.N. Independent Expert on Human Rights and Foreign Debt, Juan Pablo Bohoslavsky, and U.N. Special Rapporteur on Extreme Poverty, Philip Alston, jointly urged Brazil to immediately halt austerity policies and invest in public health response efforts to protect the rights to life and health of millions of Brazilians.

Despite recent funding cuts due to austerity measures, Brazil’s public health system is one of the best in the region and has responded effectively to several recent epidemics—including yellow fever, dengue and Zika—even as the country suffered a protracted economic crisis over the past several years. Hospitals, however, which were already strained and severely under-resourced before COVID-19, have begun to implode in parts of the country. Videos circulating on social media have demonstrated the desperation of families seeking urgent care, while bodies pile up next to patients in understaffed hospitals in Manaus, the capital of Amazonas. And sizeable parts of Brazil’s population—including its approximately 800,000 indigenous peoples and 13 million favela residents—will find it next to impossible to implement social distancing and handwashing measures, leading many of these vulnerable community members to all-but-certain infection and especially high death rates.

Fears that COVID-19 will decimate entire peoples are also sweeping across Brazil’s indigenous communities that have long-suffered severe discrimination, violence, and genocide due to acts or omissions of the Brazilian State. Given that Brazil’s territory includes most of the Amazon rainforest biome, the country is also home to uncontacted tribes and tribes living in voluntary isolation. These communities require special protective measures to ensure the novel coronavirus does not reach their populations as the virus could potentially cause their complete physical destruction due to a combination of preexisting discrimination in a variety of forms, lack of access to medical facilities, the inability to socially distance or practice hand washing, and multiple co-morbidities. Bolsonaro has done nothing but attack indigenous peoples and push an anti-indigenous rights agenda since his first day in office when he promised to not demarcate one single inch of indigenous lands and to assimilate indigenous Brazilians into broader Brazilian society. It is not alarmist to say that indigenous peoples were already facing the biggest threat to their survival in decades with Bolsonaro’s rise to power. The pandemic crisis and Bolsonaro’s non-response may very well amount to throwing gasoline on the already-hot coals of anti-indigenous sentiment Bolsonaro has stoked in Brazil.

Brazil is still climbing the COVID-19 crisis curve. While Bolsonaro’s policies of denial and dangerous authoritarian rhetoric continue to politicize the pandemic, opportunities for prevention and containment still do exist. Governors and other local officials have advanced some positive policy proposals despite the president’s attempts at sabotaging response efforts. Public health surveillance in the form of widespread testing and containment along with social distancing measures (where possible) are necessary next steps to alleviate some of the stress on healthcare facilities and give vulnerable communities a fighting chance.

Risks if Bolsonaro Does Act: Surveillance, Repression, and Further Democratic Erosion

For good reason, the general sentiment among those who hope to minimize suffering and death in Brazil attributable to COVID-19 is that the Bolsonaro administration must take immediate, decisive action. Of course, there are also serious risks that would accompany any action Bolsonaro does take. During public health emergencies, state surveillance powers tend to increase, become more far-reaching and are often subject to reduced oversight. While a vital tool for advancing public health, surveillance can pose a threat to human rights, especially when used as a pretext to monitor political forces or to control groups within populations. Public health surveillance, however, is vital to containing emerging infectious diseases, such as the novel coronavirus, especially when no vaccine or therapeutic intervention exists to prevent spiraling infection rates or to decrease mortality.

It may be difficult to imagine a Bolsonaro government that springs into action with a heavy-handed approach, given his general failure to do anything of substance to contain the spread of the coronavirus thus far. This inaction, however, combined with increasing societal fears and social unrest, could unleash military leaders lurking in the background of this administration to swoop in and fill the vacuum of power, returning Brazil to a dictatorial regime. Pandemics, such as the current one, create prime environments for the invocation of emergency powers and democratic backsliding (see for example, here and here on Just Security). Military leaders could opt to seize power through some form of overt action, as the pandemic crisis deepens in Brazil, or could opt for a more covert process of accumulating and then entrenching emergency powers.

In addition to popular political leaders speaking out against authoritarian attacks on Brazil’s democracy, secure mechanisms to guard against such democratic backsliding, political abuses, and power grabs are necessary to ensure a rights-based approach to the pandemic crisis. Implementation of the State’s police powers can lead to human rights violations and government overreach without proper transparency and accountability mechanisms. Moreover, when governments surveil identity groups—such as, for example, the Uyghurs in China—the risk of atrocity crimes being committed against such groups escalates. This problem becomes much more complex when surveillance becomes a necessary part of the provision of proper healthcare, as in such cases a lack of surveillance can lead to the continued social invisibility of marginalized groups and the compounding of the harms they suffer in comparison to others.

Without proper planning and consultation with vulnerable groups—women, migrants, people of color, people living in poverty, people with disabilities, detained persons, and indigenous peoples, among others—policies and measures taken in the name of public health prevention may actually harm health (for example, strict policies—like quarantine or isolation—can lead to individuals hiding symptoms or withholding important health information). Or worse, top-down policies may serve as pretexts to achieve other political ends. Furthermore, infectious disease often is associated wrongly with national or other identity groups, which can lead to further discrimination and mass violence against members of such groups. Thus, rights-based, inclusive public health approaches to surveillance are critical to maintain public trust and achieve prevention and mitigation goals.

Of course, States must have flexibility to modify or restrict the enjoyment of certain rights during times of national emergency, including pandemics. A legal framework, however, already exists to determine where acceptable restrictions end and unwarranted repression begins. Furthermore, the World Health Organization’s (WHO’s) 2005 International Health Regulations provides that the WHO may protect as confidential sources public health and other professionals who engage in whistleblowing. Finally, legislative, judicial and civil society oversight over these exercises of state police powers in exceptional circumstances are crucial to avoiding overreach or entrenchment.

In addition to its 2005 International Health Regulations providing the general framework of best practices for international law and governance during pandemics, WHO issued Ethical Guidelines in Public Health Surveillance in 2017, laying out the issues that relevant government agents, health workers, NGOs and private sector actors should consider when determining methods of collection, analysis, sharing, communication and use of surveillance data. WHO’s Ethical Guidelines include, among other recommendations: collecting data for legitimate public health purposes only; and including community values and concerns in the planning, implementation and use of surveillance systems and data (see Guidelines 4 and 7). Moreover, states should monitor, mitigate and redress harms to individuals and communities, especially those high-risk and vulnerable individuals and communities more susceptible to harm, as a consequence of public health surveillance activities (see Guidelines 8 and 9).

Ideally, what Brazil should strive for is to stop austerity and strengthen its public health surveillance system to prevent the current situation from becoming a full blown public health emergency that the nation’s weakened health system cannot contain. At the same time, state surveillance limiting privacy and other fundamental rights must be exceptional powers that are invoked solely in times of public emergency and, as Fionnuala Ní Aoláin has aptly argued in the context of counterterrorism and she and Just Security editors Ryan Goodman and Kate Brannen raised the risks of in the context of the ongoing global pandemic, such extraordinary powers must not persist to become part of a state’s legal DNA or continue long past the end of a declared or de facto emergency.

Conclusion: Human Rights, Democratic and Public Health Crises in Brazil

The problem with surveillance is that, for marginalized communities both in Brazil and the world over, abuse too often has been the rule rather than the exception. Distrust of government entities that over-police and under-protect, coupled with the policing of identity in Brazil and by increasingly authoritarian regimes elsewhere, have and will continue to frustrate efforts to control and contain the novel coronavirus.

The Brazilian context is a perfect storm in terms of both public health and human rights/democracy risks; a tinderbox trudging toward repression of rights, democratic collapse, and the rampant spread of COVID-19. Local, regional, and national leaders in Brazil and the international community must all step up to contain the Bolsonaro crisis if Brazil is to have any chance at limiting the devastation wrought by the coronavirus. Brazilians should not allow Bolsonaro to continue to chip away at the democratic institutions needed for an effective rights-based COVID-19 response. Nor should they allow fears of a leadership vacuum to lead them down the perilous path of granting Bolsonaro’s government or the military, new, unchecked powers. Concerned citizens and voters must hold policymakers and leaders accountable, insisting that they find ways to act appropriately in the face of a pandemic—to conduct legitimate public health-based surveillance without creeping further away from democratic ideals and international law obligations, and to respect, protect, and fulfill human rights, even in times of crisis. It’s what both human rights laws and good public health policies require.

Image – Brazilian President Jair Bolsonaro coughs as he speaks after joining his supporters who were taking part in a motorcade to protest against quarantine and social distancing measures to combat the new coronavirus outbreak in Brasilia on April 19, 2020. (Photo by Sergio LIMA / AFP) (Photo by SERGIO LIMA/AFP via Getty Images)