Leonardo Avritzer's reputation rests on his contributions to the understanding of participatory forms of democracy. In this book he has broadened his range by digging deep into the mechanics of participatory democracy, combining it with the idea of institutional innovation and extending his expertise into Brazil's labyrinthine judicial system. The book intricately disentangles various models of participation, but inevitably it reaches its high point in the analysis of Brazil's judicial system, culminating in the impeachment of President Dilma Rousseff and the trial of her predecessor Luiz Inácio Lula da Silva, understood to be about misguided institutional innovation.
Participation in its many forms has the purpose of preventing or reversing the capture of democratic institutions by special interests and political parties. If policies are to be responsive to the needs of the people, especially those with but limited voice, then ways have to be found to pre-empt the closure of decision-making and the self-protecting instincts of bureaucracy. And if the participation is to be more than an exercise in public relations, innovation is needed to institutionalise it. The most famous example is the pioneering participatory budget system in the southern Brazilian city of Porto Alegre, which allocates infrastructure funds. Avritzer also pays due attention to two other less well-known cases which are in some ways embarrassing to certain sorts of ideological predisposition: Bolivia's ‘Participación Popular’ and Mexico's reform of the body overseeing its vast electoral management and supervision apparatus – the Instituto Federal Electoral. Under the Porto Alegre model deliberative assemblies are encouraged to operate institutionally and to consider proposals even from individuals, so long as they are members of voluntary associations, which are then channelled to a municipal-level decision-making body. It is regarded as having worked well during 15 years of government by the Partido dos Trabalhadores (Workers’ Party, PT) in the city, especially by purposely incorporating low-income areas. Although it was replaced in 2005 when 15 years of PT rule came to an end, ‘participatory institutions continued in another format’ (p. 53). In Argentina, the fate of participation depended on political parties keeping their hands off – something agreed upon in Rosario but not in Buenos Aires. Likewise in São Paulo; but in Belo Horizonte and Recife the parties were held at bay. In Recife about US$350 million was spent on projects ‘funnelled through the PB [participatory budgeting] process’ between 2001 and 2010 (p. 63). The Bolivian Ley de Participación Popular (Popular Participation Law, LPP) was launched by President González de Losada in 1994. Goni, as he is known, won two elections but was then forced out by a popular uprising in 2003, yet this system survived his removal. It created ‘approximately 16000 civil society institutions and social movement organizations’ (p. 24) and established comités de vigilancia (supervisory committees) overseeing local government expenditure in health and education. In a highly centralised state where historically local government had previously controlled hardly any resources, this was a major change. The advent of the Movimiento al Socialismo (Movement towards Socialism, MAS) in 2005 does not seem to have led to the politicisation observed in São Paulo and Buenos Aires, save in areas where its opponents exercise local power (the lowland and resource-rich Media Luna region) and have used LPP institutions to contest the MAS.
Participation and innovation are seen by Avritzer as mechanisms to democratise the innumerable non-electoral areas of the state that are too easily hidden from view in bureaucracy. Most of his cases show the destabilising effects of intervention by political parties; but, when it comes to the judiciary, the corporatist interests themselves can be an obstacle. So his tone becomes understandably more urgent and quite indignant when he reaches the tumultuous events in Brazil since 2014. His main criticism is of the extreme autonomy of both Brazil's judiciary and of its public prosecution service (the Ministério Público – MP) as established by the 1988 Constitution. This was drawn up by Congress sitting as a Constituent Assembly and thus, unsurprisingly, was written for the benefit of the political class. For example, ministers and members of Congress can be tried only in the Supreme Court. But it also empowered the judiciary and bolstered its corporate autonomy and budgetary independence. The Supreme Court can review laws passed by Congress as well as executive decisions down to a very detailed level, for example ordering the health system to provide expensive treatment to a patient on the basis of the Constitution's statement that ‘health is a right for all’. The MP for its part has the power to take up issues of social concern on its own initiative and has been very active in environmental and health issues, and, in the demarcation of indigenous land, acquiring a broadly progressive reputation. During the Rousseff impeachment process, however, both the MP and the judiciary exceeded their powers, and did so in ways which, though apparently technical, favoured the impeachment.
One other aspect of the current investigation into corruption being carried out by the Federal Police of Brazil – known as ‘Operação Lava Jato’, or ‘Operation Car Wash’ – is the role of the presiding judge and the deployment of plea bargaining Brazilian style, which differs from the US version. In the United States, both prosecution and accused face the uncertainty of a jury's decision: the prosecution does not want to lose the case and the accused does not want a heavy sentence, so they seek a compromise in their common interest. In Brazil there is no jury: the judge is in charge of verdict and sentence, so the accused faces not so much a gamble as a direct threat in a highly asymmetrical bargain. The plea bargain was only recently introduced in Brazil precisely to make prosecution of corruption less cumbersome, but in Avritzer's view it has been abused in the Lava Jato affair because the judge and the prosecutors have investigated only PT-linked corruption and only PT politicians and their business partners have been convicted. This has culminated in the imprisonment of Lula – who himself has not struck a plea bargain. The lead judge in the Lava Jato trials was subsequently appointed Minister of Justice by President Bolsonaro.
The book concludes comparing the role of the Colombian Constitutional Court with that of the Brazilian Supreme Court, somewhat to the credit of the former. The Colombian Court has issued politically sensitive rulings but they have usually involved rights and have not changed the balance between the powers of the state, whereas in Avritzer's view the Brazilian Court is ‘trying to establish its capacity to review or cancel the written text of the Constitution’ (p. 124).
It is a truism to say that to understand democracy one must go beyond elections and the activities of the political class, and delve into the entrails of the bureaucracy and the judiciary. The execution is complicated, because it requires navigating a forest of rules and regulations and dissecting numerous small-scale decisions, but this book offers excellent examples of how to go about this task.
