Constitutional Erosion in Brazil 9781509941957, 9781509941971, 9781509942602

Table of contents :
Acknowledgements
Table of Contents
Introduction: Defining Brazil’s Constitutional Erosion
I. What is a Constitutional Crisis?
II. Constitutional Erosion
III. Constitutional Crisis and Constitutional Erosion: A Comparative Assessment
IV. Brazil under Bolsonaro: Soldiers as Politicians
V. Armed Forces and Politics: Brazil and Beyond
VI. The Structure of this Book
1. Transitional Constitutionalism: Judicial and Military Attempts at Controlling a Transition
I. The Brazilian Dictatorship of 1964–1985 Juridical Apparatus
II. Transitional Justice Processes Shaping Constitutionalism
III. Amnesty and the Federal Supreme Court
IV. The 1964–1985 Dictatorship on Trial
V. Interactions between Brazilian Institutions and the Inter-American Court of Human Rights
VI. The Military in Brazil: From Impunity to Politics
2. Social-Democratic Constitutionalism: Neoliberal Unconstitutional Politics and Socio-Economic Rights
I. Authoritarianism and Neoliberalism
II. Constitutions and Economic Power
III. Transformative Constitutionalism and Transformative Justice
IV. Socio-economic Rights, Constitutionalism and Transition in South Africa
V. Socio-economic Rights, Constitutionalism and Transition in Brazil
VI. Neoliberalism and Transitional Constitutionalism
3. Institutional and Personal Judicial Guarantees: Judges, Inequality and Politics
I. Against the Transition: The Lack of Effi cient Judicial Institutional Reforms
II. Corporativist Guarantees
III. Operation Car Wash: Taming Politics through Judicial Discourse
IV. The Personification of Operation Car Wash
V. From the Bench to Politics
VI. Individualities v Institutional Behaviour
4. Judges and Courts Destabilising Constitutionalism
I. Deputies and Senators in the Federal Supreme Court
II. The Judicial Oversight of an Impeachment
III. Ruling on Presumption of Innocence: Balancing and Unbalancing Constitutional Rights
IV. Imprisoning the Ex-President
V. Constitutional Courts and Political Instability
VI. Unstable Constitutionalism in Brazil
5. Subverting the Rule of Law: The Military vs the Milícias – Eroding Brazilian Constitutionalism
I. The Military in Brazilian Post-1988 Democracy
II. Soldiers Returning to Politics
III. Militarised Public Security
IV. Supporting Elections via Milícias
V. Constitutional Erosion or Blatant Coups? A Comparative Assessment
VI. Fuelling Attacks on Constitutional Democracy
6. Moderating Powers? Military and Judges in Brazilian Constitutionalism
I. An Overview of the Moderating Power
II. Authoritarianism: A Substitute for the Moderating Power
III. The Ghost of the Moderating Power and the Military Elite
IV. 1964–1985 – Suspension and Return of the Moderating Model
V. Moderating Power Transfer: From the Military to the Judiciary and Back again
VI. A Case of Weak Democracy Syndrome
7. Digital Constitutionalism: WhatsApp Elections and Fake News
I. Capitalism, New Technologies and Democracy
II. Surveillance Capitalism and Instrumentarian Power
III. Politics and Network Propaganda
IV. Fake News, Authoritarianism and Political Choices
V. WhatsApp, Elections and Misinformation
VI. Controlling Fake News in Brazil
8. Constitutional Resilience against Erosion: Responses Provided for by the 1988 Constitution
I. Coalitional Presidentialism and its Misuse
II. The Constant Threat of Impeachment
III. Capturing State Institutions and Fighting the Media
IV. Parliamentary Control and the Abuse of Executive Orders
V. On Federalism: The Governors’ Reactions
VI. ‘I Will Interfere!’ The Federal Supreme Court Fights Back
Epilogue
Index

Citation preview

CONSTITUTIONAL EROSION IN BRAZIL This book provides a fascinating analysis of a single jurisdiction, Brazil, and accounts for both the successes and the failures of its most recent constitutional project, inaugurated by the 1988 Constitution. It sets out the following aspects of constitutional identity and erosion: – the different phases of the promised transition from military rule to a socialdemocratic constitutionalism; – the obstacles to democratisation derived from the absence of true institutional reforms in the judicial branch and in the civil–military relationship; – the legal and social practices which maintained a structure that obstructed the emergence of an effective social democracy, such as the neoliberal pattern, the entrance in the political field of unlawful organisations, such as the milícias, and the way the digital revolution has been harming democratic sovereignty. Situating Brazil in the global context of the revival of authoritarianism, it details the factors which are common to the third wave of democratisation reflux. Accounting for those aspects, particular to the Brazilian jurisdiction, it shows that there is a tension in the Brazilian constitution. On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics since 1988. On the other hand, it retained authoritarian practices through the hands of diverse institutions and political actors. By exploring the ideas of constitutional erosion and collapse, as well as democratic, social and digital constitutionalism, the book presents a comparative analysis of Brazil and other jurisdictions, including the United States, South Africa and Peru. Volume 1 in the Constitutionalism in Latin America and the Caribbean series

Constitutionalism in Latin America and the Caribbean Series editors: Richard Albert Carlos Bernal Catarina Santos Botelho The Constitutionalism in Latin America and the Caribbean series publishes outstanding scholarship on the law and politics of the many varieties of constitutionalism in Latin America and the Caribbean. From single-jurisdiction and cross-national studies to inquiries into the relationship between constitutional and international law in multilevel legal orders in the region, the series welcomes submissions that identify, contextualise, illuminate, and theorise the origins, challenges, foundations, and future of constitutional law and politics in these understudied – but fascinating and important – parts of the world. Scholarship published in this series covers the range of methodologies in law and politics, including but not limited to comparative, doctrinal, empirical, historical, and theoretical perspectives. The series editors invite preliminary inquiries as well as full proposals for monographs and edited volumes in what aims to be the leading forum for the publication of exceptional public law scholarship on Latin America and the Caribbean.

Constitutional Erosion in Brazil

Emilio Peluso Neder Meyer

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2021 Copyright © Emilio Peluso Neder Meyer, 2021 Emilio Peluso Neder Meyer has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2021. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Meyer, Emilio Peluso Neder, author. Title: Constitutional erosion in Brazil / Emilio Peluso Neder Meyer. Description: Oxford ; New York : Hart, 2021.  |  Series: Constitutionalism in Latin America and the Caribbean ; volume 1  |  Includes bibliographical references and index. Identifiers: LCCN 2021017088 (print)  |  LCCN 2021017089 (ebook)  |  ISBN 9781509941957 (hardback)  |  ISBN 9781509950508 (paperback)  |  ISBN 9781509942602 (pdf)  |  ISBN 9781509941964 (Epub) Subjects: LCSH: Constitutional history—Brazil.  |  Brazil—Politics and government—1985–2002.  |  Brazil—Politics and government—2003– Classification: LCC KHD2919 .M49 2021 (print)  |  LCC KHD2919 (ebook)  |  DDC 342.8102/9—dc23 LC record available at https://lccn.loc.gov/2021017088 LC ebook record available at https://lccn.loc.gov/2021017089 ISBN: HB: 978-1-50994-195-7 ePDF: 978-1-50994-260-2 ePub: 978-1-50994-196-4 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For Renata, Isabela and Guido.

vi

Acknowledgements

T

his book is partially a product of the COVID-19 pandemic. A few months after I got the news that my proposal for it was to be included in Hart Publishing’s Constitutionalism in Latin America and the Caribbean series, my family and I were struck by the sudden death of my younger brother, Guido. I must dedicate this book to so many people, but he certainly deserves a central place in the project for all that he represented in my life. If one also considers the context of the pandemic – this was at the start of May 2020 – it is possible to understand that I was faced with both favourable and adverse conditions. It was probably the challenge to work while mourning and the pandemic itself (with the adaption of classes for both me and my daughter, Isabela, new working conditions, social distancing, and so on) that pushed me hard to write this book. Under those circumstances, the support of Renata, my wife, and Isabela, as well as my father (Tufi), mother (Maria Elisabeth) and sister (Lorenza) was crucial. I must also dedicate this book to Gabriela and João, Guido’s family, for showing me the strength to go on in difficult times. Friends that always supported both my academic and personal life also – although at distance – played an important role. I know that it might be unjust to name some of them and not others, but I must, at least, not forget my undergraduate and faithful friend Cirilo. All the madness that accompanied the rise of Jair Bolsonaro to the presidency led me to revise the text several times. The erratic behaviour of the President of the Republic was an extra factor to consider and directly affected the whole text. Although the reader will find that constitutional erosion in Brazil started long before his rise to power, it can also be seen that Bolsonaro and his aides have contributed enormously to the current situation. Bolsonaro also directly affected (and attacked) the environment of the Brazilian universities that was so energetic and productive. Nonetheless, I remain grateful to share a communicative space that is so fruitful. This book is also, as I see it, the result of a work in progress and of a process of accumulation and renovation. In this sense, I must thank all of those that surround me at the Federal University of Minas Gerais (Universidade Federal de Minas Gerais, UFMG), especially Marcelo Cattoni (who was supervisor of my masters and doctoral degrees and is now a gentle colleague and friend), Renato Cardoso and Misabel Derzi. By the same token, Thomas Bustamante has become a partner in various projects that have influenced several parts of the book. Fabrício Polido assisted my understanding of the controversies between law and digital innovations, and influenced in writing chapter seven. Colleagues from UFMG’s Institute of Advanced Transdisciplinary Studies (IEAT) helped

viii  Acknowledgements me to go beyond the borders of law, which impacted some of the chapters of this book. I must show all my gratitude to the team of researchers that has accompanied me through the years at UFMG’s Study Centre on Transitional Justice – even if some of them are formally no longer there. Felipe Tirado was extremely generous and sharp (in a good way) in pushing me to review some parts of the text. Mariana Rezende shared several of the arguments that appear in chapter six and contributed a lot to improve it. Several other researchers read the manuscript and provided important critical assessments: Mariana Tormin, Ana Luiza Marques, Nathalia Brito, Natasha Burrell, Raquel Possolo, Ulisses Reis, Ana Carolina Rezende and Bruno Castro. Some debates outside UFMG helped give the book its final shape. Juliano Benvindo always showed me the flipside of my arguments so I could improve them. Jane Reis, Cristiano Paixão, Conrado Mendes, Rafael Mafei, and others, exchanged with me their thoughts throughout the process and allowed me to reach what I thought was a plausible reading of contemporary Brazil. Abroad, Tom Daly, Anthony Pereira, Octávio Ferraz and Par Engstrom are some of the people I thank for their influence. ICON-S became an excellent space of discussion and innovation – the same goes for ICON-S Brazilian Chapter and the Brazilian Association of Political Philosophy and Constitutional Law. Publishing in blogs such as I-Connect and Verfassungsblog was important to make the process more public. Richard Albert, Catarina Botelho and Carlos Bernal Pulido, organisers of the Constitutionalism in Latin America and the Caribbean series, were real enthusiasts of the publication. I must especially thank Richard, who became a true supporter and was always available to push the project forward. The entire Hart Publishing team was fantastic in reviewing the manuscript and preparing it for publication. I shall thank the Brazilian National Council for Scientific and Technological Development for providing me with a scholarship that was important for the development of the whole project (CNPq, 304158/2018-6). I must also thank to the German Law Journal, which authorised my use of previously published material in chapters three and four.1 Emilio Peluso Neder Meyer Belo Horizonte, March 2021

1 E Meyer, ‘Judges and Courts Destabilizing Constitutionalism: The Brazilian Judiciary Branch’s Political and Authoritarian Character’, 19 German Law Journal 4, 727–768.

Table of Contents Acknowledgements��������������������������������������������������������������������������������������vii Introduction: Defining Brazil’s Constitutional Erosion������������������������������������1 I. What is a Constitutional Crisis?........................................................3 II. Constitutional Erosion.....................................................................7 III. Constitutional Crisis and Constitutional Erosion: A Comparative Assessment.............................................................10 IV. Brazil under Bolsonaro: Soldiers as Politicians.................................13 V. Armed Forces and Politics: Brazil and Beyond..................................17 VI. The Structure of this Book..............................................................19 1. Transitional Constitutionalism: Judicial and Military Attempts at Controlling a Transition�����������������������������������������������������24 I. The Brazilian Dictatorship of 1964–1985 Juridical Apparatus���������28 II. Transitional Justice Processes Shaping Constitutionalism................34 III. Amnesty and the Federal Supreme Court.........................................40 IV. The 1964–1985 Dictatorship on Trial..............................................45 V. Interactions between Brazilian Institutions and the Inter-American Court of Human Rights.............................48 VI. The Military in Brazil: From Impunity to Politics............................50 2. Social-Democratic Constitutionalism: Neoliberal Unconstitutional Politics and Socio-Economic Rights�����������������������������52 I. Authoritarianism and Neoliberalism...............................................55 II. Constitutions and Economic Power.................................................58 III. Transformative Constitutionalism and Transformative Justice..............................................................60 IV. Socio-economic Rights, Constitutionalism and Transition in South Africa........................................................66 V. Socio-economic Rights, Constitutionalism and Transition in Brazil..................................................................71 VI. Neoliberalism and Transitional Constitutionalism..........................75 3. Institutional and Personal Judicial Guarantees: Judges, Inequality and Politics���������������������������������������������������������������������������79 I. Against the Transition: The Lack of Efficient Judicial Institutional Reforms.........................................................82 II. Corporativist Guarantees...............................................................84

x  Table of Contents III. Operation Car Wash: Taming Politics through Judicial Discourse..............................................................89 IV. The Personification of Operation Car Wash....................................90 V. From the Bench to Politics...............................................................93 VI. Individualities v Institutional Behaviour........................................ 100 4. Judges and Courts Destabilising Constitutionalism������������������������������ 103 I. Deputies and Senators in the Federal Supreme Court..................... 105 II. The Judicial Oversight of an Impeachment................................... 110 III. Ruling on Presumption of Innocence: Balancing and Unbalancing Constitutional Rights........................................ 113 IV. Imprisoning the Ex-President........................................................ 116 V. Constitutional Courts and Political Instability............................... 118 VI. Unstable Constitutionalism in Brazil............................................. 125 5. Subverting the Rule of Law: The Military vs the Milícias – Eroding Brazilian Constitutionalism������������������������������������� 129 I. The Military in Brazilian Post-1988 Democracy............................ 132 II. Soldiers Returning to Politics........................................................ 135 III. Militarised Public Security............................................................ 139 IV. Supporting Elections via Milícias.................................................. 141 V. Constitutional Erosion or Blatant Coups? A Comparative Assessment........................................................... 148 VI. Fuelling Attacks on Constitutional Democracy............................. 151 6. Moderating Powers? Military and Judges in Brazilian Constitutionalism�������������������������������������������������������������� 154 I. An Overview of the Moderating Power......................................... 156 II. Authoritarianism: A Substitute for the Moderating Power.................................................................. 159 III. The Ghost of the Moderating Power and the Military Elite................................................................... 164 IV. 1964–1985 – Suspension and Return of the Moderating Model............................................................. 166 V. Moderating Power Transfer: From the Military to the Judiciary and Back again.................................................... 168 VI. A Case of Weak Democracy Syndrome......................................... 172 7. Digital Constitutionalism: WhatsApp Elections and Fake News��������������������������������������������������������������������� 176 I. Capitalism, New Technologies and Democracy............................. 181 II. Surveillance Capitalism and Instrumentarian Power...................... 185 III. Politics and Network Propaganda................................................. 189 IV. Fake News, Authoritarianism and Political Choices....................... 192

Table of Contents   xi V. WhatsApp, Elections and Misinformation..................................... 195 VI. Controlling Fake News in Brazil.................................................... 197 8. Constitutional Resilience against Erosion: Responses Provided for by the 1988 Constitution���������������������������������������������������������������� 199 I. Coalitional Presidentialism and its Misuse.................................... 203 II. The Constant Threat of Impeachment.......................................... 204 III. Capturing State Institutions and Fighting the Media...................... 210 IV. Parliamentary Control and the Abuse of Executive Orders...................................................................... 215 V. On Federalism: The Governors’ Reactions..................................... 217 VI. ‘I Will Interfere!’ The Federal Supreme Court Fights Back................................................................................... 219 Epilogue���������������������������������������������������������������������������������������������������� 225 Index��������������������������������������������������������������������������������������������������������� 231

xii

Introduction Defining Brazil’s Constitutional Erosion

T

he central argument of this book is that, since 2014, there has been a slow, detrimental, erosion of the constitutional identity provided for in the 1988 Brazilian Constitution.1 The country has faced diverse political crises. The constitutional system, designed in 1988, has entered a period of political and constitutional instability including a popular resurgence in 2013,2 a defeated candidate refusing to recognise the legitimacy of the presidency’s electoral results in 2014, the Federal Supreme Court’s rulings imprisoning and suspending legislative representatives and a controversial impeachment process.3,4 This culminated in President Bolsonaro’s electoral victory. The book presents some of the causes and the main actors involved in the constitutional erosion that preceded his election and has deepened afterwards. It also shows that the 1988 Constitution can still be rescued and can act as a barrier to halt its slow destruction. The constituent assembly that enacted the 1988 Constitution bore all the hallmarks of a democratisation process following an authoritarian regime.5 It created an ambitious constitutional document which represented the different voices heard in the constituent power procedure. There was a long bill of fundamental rights, which included the rights to life, liberty and equality. Property was protected, as long as its social function was sufficiently assured. Guarantees 1 The 1988 Brazilian Constitution will be referred throughout this book as the 1988 Constitution. 2 The institutional focus adopted in this book has meant that a deep analysis of the so-called June Journeys (Jornadas de Junho) has been put aside, even if former President Dilma Rousseff proposed a ‘small constituent assembly’ (mini-constituinte) for a political reform. The 2014 elections seemed to disrupt the several institutional confrontations that directly led to the current political crisis. For the 2013 manifestations, see L Avritzer, O Pêndulo da Democracia (São Paulo, Todavia, 2019) and C Souza Neto, Democracia em Crise no Brasil (São Paulo, Contracorrente, 2020). 3 This book adopts the official translation of the names of authorities and institutions. For instance, in quotations, the Portuguese acronym for the Federal Supreme Court (STF) is also used. See www2.camara.leg.br/english; www.mpf.mp.br/atuacao-tematica/sci/dados-da-atuacao/linkstematicos/traducoes-oficiais-do-mpf; www.brazil.gov.br/government/ministers; www.international. stj.jus.br. 4 In this book, the Brazilian Federal Supreme Court will be referred to as the Federal Supreme Court. Where a foreign, supreme or constitutional court is quoted, the book will refer to its nationality. 5 Z Elkins, T Ginsburg and J Melton, The Endurance of National Constitutions (Cambridge, Cambridge University Press, 2009) 79.

2  Introduction derived from predictability and the rule of law, fundamental rights for defendants, procedural rights and constitutional remedies, such as habeas corpus and habeas data, were provided for. Consumer rights, environmental protection, a wide range of socio-economic rights and an expansion of political participation also formed part of an extensive list. Institutionally, the federation was to be decentralised, as compared to other countries in Latin America.6 The separation of powers was affected by a presidential system which followed a coalitional model,7 with a dangerously wide spread of political parties.8 There was an attempt to finally subordinate the military to civilian control. The judicial branch was enhanced with institutional and individual prerogatives. The 1988 Constitution promoted the expansion of constitutional review, employing direct lawsuits concentrated in the Federal Supreme Court (Supremo Tribunal Federal). It also created a powerful organ to embrace the roles of ombudsman and the functions of public prosecutors (the Ministério Público) and strengthened bodies for the defence of the poor and marginalised. The 1988 Constitution designed pensions and social assistance politics within a public social security system. The constitutional text tried to place Brazil within an international order limited by human rights. Realpolitik soon resulted in innovations which frequently came into tension with tests to the democratic pedigree of the recently reinvented constitutional system. Individuals from very different backgrounds were elected president. An internationally renowned sociologist, Fernando Henrique Cardoso, was elected in 1994, having previously served as Finance Minister during Itamar Franco’s Presidency (1992–1995) – a government widely seen as responsible for promoting economic stability. A migrant from an impoverished north-eastern region of Brazil and former metallurgical and union leader, Luis Inácio Lula da Silva, was elected president in 2003 and led one of the most promising phases of Brazil’s recent history. Years later, he would face numerous accusations of corruption and end up in prison as a result of a dubious criminal lawsuit (see chapter three). Two presidents – Fernando Collor (1992) and Dilma Rousseff (2016) – have faced impeachment. In both cases, the allegations were considered to be weak (see chapter eight). A political opponent of the former dictatorship, Dilma Rousseff confronted one of the most enduring political crisis Brazil has ever faced, only to be cast aside in a process which some have called a ‘parliamentary coup’.9 Her vice-president, Michel Temer, acted as her substitute while he faced several 6 A Díaz-Cayeros, Federalism, Fiscal Authority, and Centralization in Latin America (Cambridge, Cambridge University Press, 2006). 7 S Abranches, ‘Presidencialismo de coalizão: o dilema institucional brasileiro’ (1988), 31 Dados – Revista de Ciências Sociais 5. 8 F Limongi, ‘Democracy in Brazil Presidentialism, Party Coalitions and the Decision-making Process’ (2007) 3 Novos Estudos CEBRAP 1. 9 E Meyer, ‘Judges and Courts Destabilizing Constitutionalism: The Brazilian Judiciary Branch’s Political and Authoritarian Character’ (2018) 19 German Law Journal 727.

What is a Constitutional Crisis?  3 accusations of corruption. Temer did not last long in the presidency. However, he was able to broaden the neoliberal agenda introduced by previous administrations that would be radicalised by the next president, Jair Bolsonaro. The process which led Bolsonaro to the presidency followed the wave of populism that had been experienced by Poland, Hungary and the Philippines, to name but a few.10 The electoral campaign in 2018 was massively influenced by social media, Lula’s imprisonment and his prohibition from running and extreme political polarisation. The election resulted in the victory of an extreme farright candidate and former soldier, Jair Bolsonaro, all in the midst of a political crisis. Before presenting the structure of this book and some of its methodological parameters, this introduction will highlight two paradigmatic concepts for this volume: constitutional crisis and constitutional erosion. This will be done using the general comparative tone of the book. I.  WHAT IS A CONSTITUTIONAL CRISIS?

Scholars link constitutions to the notions of stability or even perpetuity. Against those features, two recent studies were carried out. On the one side, a debate flourished on ‘unstable constitutionalism’, referring to the situations of South Asian countries. In those cases, the willingness of different political actors to maintain the constitutional structure is in tension with the general and permanent disagreement on the appropriate elements that identify a society and should be protected by a constitution.11 In other words, people are in accordance that a constitution shall exist, but they strongly oppose the ways to define it. On the other side, empirical studies have shown that a constitution lasts, on average, for 19 years, the same longevity proposed by Thomas Jefferson, to avoid a situation where the dead govern the living. Flexibility, the ability to adapt over time; specificity, the level of detail and scope; and inclusion – meaning the capacity for involving different groups in shaping and defending constitutions – all contribute to their endurance.12 In 1991, John Finn had already argued that the claim of constitutional perpetuity is fanciful, as crises present severe challenges to the promises made

10 Bolsonaro’s populism has peculiar features. He was elected with an anti-establishment discourse (despite having been a congressman for 30 years). The so-called ‘Bolsonarismo’, a movement comprised of his supporters (although heterogeneously), claims that the president opposes the system (media, academics, NGO’s, parts of the judiciary and political opposition). See T Bustamante, R Mafei and E Meyer, ‘Illiberalism in Brazil: From Antiestablishmentarianism to Bolsonarism’ in A Sajo, S Holmes and R Uitz (eds), The Routledge Handbook on Illiberalism (Abingdon, Routledge, forthcoming). 11 See M Tushnet and M Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge, Cambridge University Press, 2015) 5. 12 Elkins, Ginsburg and Melton, National Constitutions (2009) 207.

4  Introduction when societies adopt constitutions.13 In times of emergency, should people be tied by the textual commitments created in the past or should they be released from them to help safeguard a worthwhile goal? Those questions are part of a longstanding constitutional debate. Carl Schmitt argued against the normative character of a constitution, and in favour of pure politics, indicating that the ‘fundamental political decision’ was the best way for a constitution to perform its duties – the ‘sovereign is who decides on the exception’.14 Crises would not be exceptional situations, but, rather, the best moments in which a constitution can perform its role. However, Schmitt’s perspective blurs the distinction between politics and law, and endangers the mechanism by which constitutions can mediate the tension between these two systems. Facing cases in which emergency powers apply, Finn referred to the principles of constitutionalism that could govern national crises, even if individual textual documents give specific confirmation to those normative standards. Failure to comply with any specific constitutional textual norms does not exclude a commitment to the principles of constitutionalism. More importantly, the principles of constitutionalism can be revealed in crisis situations. To understand such crises, it is vital to theorise about constitutional maintenance and endurance. The principles of constitutionalism that rule situations of constitutional emergency require the consideration of moments where the appropriateness of a constitution to govern a political community becomes the question.15 In this sense, a constitutional crisis could very closely resemble a state of exception. The problem is that the challenges that democracies face today have much more to do with incremental and slow processes of deterioration which are often undiscernible. In the face of the debate in the United States under the presidency of Donald Trump, the website Vox interviewed several American scholars devoted to studying the constitutional system to determine if a constitutional crisis was occurring.16 As this is a controversial concept, different ideas arose. 13 J Finn, Constitutions in Crisis: Political Violence and the Rule of Law (New York and Oxford, Oxford University Press, 1991) 5. 14 ‘In practice, widely held norms of legality and a positive orientation toward the regular operation of a liberal constitutional democracy together seem to insulate countries against the nihilistic unravelling of legality that Schmitt embraced’ (T Ginsburg and A Huq, How to Save a Constitutional Democracy (Chicago, University of Chicago Press, 2018) 60). See, also, C Schmitt, Political Theology (Chicago, University of Chicago Press, 2005) 5. ‘Not only do emergencies, which “cannot be circumscribed factually and made to conform to a preformed law,” increasingly constitute the normal rather than exceptional state of political and legal affairs, but also their proliferation highlights the structural advantages of an executive-dominated authoritarian institutional alternative, liberated from obsolete legalistic (and especially liberal) ideals’ (W Scheuerman, ‘States of Emergency’ in J Meierhenrich and O Simons (eds), The Oxford Handbook on Carl Schmitt (New York, Oxford University Press, 2017) 547–48. 15 To avoid the collapse of the system, principles of constitutionalism must currently be understood as requiring respect for separation of powers, fundamental rights and basic democratic requirements (such as the prohibition of unbounded executive legislation). 16 S Illing, ‘How do we know if we’re in a constitutional crisis? 11 experts explain’, Vox, 16 May 2019, www.vox.com/2019/5/16/18617661/donald-trump-congress-constitutional-crisis.

What is a Constitutional Crisis?  5 Victoria Nourse focused on the branches of government, recognising a constitutional crisis if the executive, for example, does not abide by the courts’ rulings. Keith Whittington referred to crises of operation and crises of fidelity that promote constitutional breakdown, such as situations where political disputes are not resolved under the constitutional structure or where political actors do not adhere to constitutional commitments. Jessica Silbey spoke in terms of one branch hijacking the other and silencing the voice of the people. Peter Shane stated that a constitutional crisis takes place when the constitutional structure is no longer able to commit to the fundamental values of democratic constitutionalism. According to Mark Tushnet, persistent conflict does not equal a constitutional crisis. However, this phenomenon will arise when the results of the contest are outside democratic lines. Aziz Huq mentioned a sharply defined moment of conflict over the content of constitutional norms, separating sequences of crises from moments of slow erosion. Tom Ginsburg agreed with Nourse and Whittington that there must be a fight between the branches of government without resolution inside the constitutional structure. The United States was, thus, facing several constitutional confrontations, but not crises. Ilya Somin pointed out that crises occur where there are major and systematic breaches of the constitution or if there is significant disagreement as whether the constitution has been violated. In this case, moments of polarisation exacerbate the likelihood of crises. Constitutions play diverse roles. One of them is linked to what a nation represents. Constitutions can provide a kind of national identity, usually in a softer sense for countries that have overcome the traditional nation-state archetype. The 1990s debate between Charles Taylor and Jürgen Habermas showed that, in pluralistic societies, constitutions should provide a more abstract and thinner conception of the historical and political project that societies pursue to accomplish their objectives.17 Institutions must be directed by such projects aimed at not leaving any minority behind. What type of constitutional identity is at stake in a particular jurisdiction can help to pinpoint if a crisis is taking place. Jared Diamond, in his reading on turning points for nations, indicates how new identities are formed from the mosaic that succeeds moments of crisis. Britain, for example, would reflect the composition of a contemporary multi-ethnic society which adopted the welfare state while remaining among the wealthiest nations in the world and which maintained its monarchic parliamentary democracy after the 1950s crisis – although 17 Habermas’ views can be examined in J Habermas, The Inclusion of the Other: Studies in Political Theory (C Cronin and P de Greiff eds) (Cambridge, MA, MIT Press, 1999) 203. Habermas appropriates Dolf Sternberg’s concept of ‘constitutional patriotism’ to advance an idea of identity less centred on ethical homogeneity. See, also, J Müller, Constitutional Patriotism (Princeton and Oxford, Princeton University Press, 2007); M Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (London and New York, Routledge, 2009) and M Cattoni, Poder Constituinte e Patriotismo Constitucional (Belo Horizonte, Mandamentos, 2006).

6  Introduction a lot may change with Brexit.18 Both external and internal pressures can lead to changes that must be appropriately tuned to conserve the parts that function well and change those that must be reformed. New solutions must be compatible with the structure of a nation and elements fundamental to identity must be retained. A crisis is a turning point in which conditions before that moment are different to those that come after it. It does not have a specific time boundary, nor are there clear lines to separate what constitutes success and failure when responding to crises. The frequency, duration and scale of impact alters the way a crisis is determined. Although there are precise moments where a crisis is unveiled (such as the 31 March 1964 military coup in Brazil, the 11 September 1973 coup in Chile and the 1 February 2021 coup in Myanmar), several critical situations follow a process developed over years. They form a collection of different social, economic and political facts. ‘The “crisis” is a sudden realisation of, or a sudden acting on, pressures that have been building up for a long time.’19 Several factors play different roles in dealing with a crisis and can help to identify it. First, there is always the problem of acknowledging that a crisis is actually taking place; this often involves denial, partial recognition and downplaying the seriousness of the situation. There is also the fact that a nation is composed of different types of people and has diverse political leaders. Difficulties with correctly identifying the main problem a society faces creates hurdles to detect that a crisis is happening. After the Second World War, the German people needed to undergo a ‘denazification’ process which required recognition and accountability for crimes against humanity committed under a generalised policy structured in a repressive apparatus.20 Such acceptance of responsibility is part of diverse transitional processes in Latin America, producing effects that are only sensed generations after a dictatorship is gone. When the cases of Argentina, Chile and Brazil are compared, it becomes clear that the military have established different dynamics with civilian powers according to the criminal liability lawsuits to which they were exposed. Some of these arguments indicate that a constitutional crisis can happen at the level of political or constitutional identity. Notwithstanding this situation

18 J Diamond, Upheaval: Turning Points for Nations in Crisis (New York, Boston, London, Little, Brown and Company, 2019) 6. Diamond explores the comparison between individual identities and national identities, albeit he is aware that merely equating them is misleading. In the view of this book, however, it should be clear that one must avoid simply making societies and nations the representation of an individual in gigantic proportions. In the sense of the criticism of Immanuel Kant to Thomas Hobbes, there is an important difference between what individuals seek with private contracts (specific ends) and what they want with a social contract (the pact itself). Such difference has important consequences for shaping identities both at the individual and societal levels. See J  Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA, The MIT Press, 1996) 93. 19 Diamond (ibid) 9. 20 ibid, 423.

Constitutional Erosion  7 in distinct jurisdictions across the globe,21 this book is particularly interested in presenting answers to problems that affect the institutional guarantees and values of constitutional democracy, following the wake of a plausible descent on what Samuel Huntington called ‘the third wave of democracy’.22 More than that, what must be considered is how one constitutional identity, shaped not only by the traditional liberal democracy design but, also by the contextual particularities that involve the authenticity of a constitutional project, can be affected by the current authoritarian resurgence. II.  CONSTITUTIONAL EROSION

Ginsburg and Huq have recently attempted to differentiate between the erosion and the collapse of democracies. A constitutional democracy will collapse when its key elements (for the authors, the rule of law, electoral competition and liberal rights) are suddenly compromised.23 There is more speed in an authoritarian collapse, which is occasioned by the use of emergency powers and military coups. It is the equivalent of a state of exception, in which norms cease to produce an effect on the political realm. Today, however, slow democratic erosion has become familiar. The incremental degradation of the three elements of constitutional democracy Ginsburg and Huq refer to can lead to a hybrid regime or to competitive authoritarianism instead of an autocracy (although this is not a guarantee against the total closure of the system).24 Also, one must be allowed to identify when the moments of democracy prevail. Separately, several breaches of the legal system are not considered to be alarming. That is why the erosion only becomes perceptible when the breaches are interpreted as parts of a process rather than isolated events. Only when taken together do they expose a considerable institutional setback.

21 Think, for example, of the recurring difficulties Nepal has faced in its constituent process visà-vis its disruptive ethnic identities. See M Lawoti, ‘Competing Nationhood and Constitutional Instability: Representation, Regime, and Resistance in Nepal’ in Tushnet and Khosla Unstable Constitutionalism (2015) 86. 22 S Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman and London, University of Oklahoma Press, 1991). Huntington used the wave metaphor to show how the number of democracies increased and decreased after the 19th century. The first wave of democracy took place between 1828 and 1926. A second wave started after the Second World War but receded between 1962 and 1970. The third wave began in 1974 but was confronted by an influx, especially during the 2010s. 23 Ginsburg and Huq, Constitutional Democracy (2018) 47. 24 ‘Competitive authoritarian regimes are civilian regimes in which formal democratic institutions exist and are widely viewed as the primary means of gaining power, but in which incumbents’ abuse of the state places them at a significant advantage vis-à-vis their opponents. Such regimes are competitive in that opposition parties use democratic institutions to contest seriously for power, but they are not democratic because the playing field is heavily skewed in favor of incumbents. Competition is thus real but unfair’ (S Levitsky and L Way, Competitive Authoritarianism: Hybrid Regimes After the Cold War (Cambridge, Cambridge University Press, 2010) 5).

8  Introduction Authoritarian collapse can be represented by the invocation of emergency powers which, at first glance, are attained through constitutional and legal rules, or by the occurrence of coups, in which those rules are circumvented. In the case of military coups, constitutional and legal norms are breached. Enduring praetorianism, that is, the impossibility of civilian control of military members, can lead to authoritarian backsliding.25 That is why the relationship between civilian and military authorities is essential. The use of emergency powers is relevant for identifying a collapse, but praetorianism is more relevant to the current process of erosion in Brazil. Additionally, the fear of elites against popular control of politics, failed attempts to develop civilian control against the military forces, the entrenchment of power by democratically elected authorities – all these facts can lead to the collapse of democracy.26 Contrary to the crude coups and states of emergency, democratic erosion does not have a single form nor does it lead to only one result. Referring to the structure of constitutional democracy they conceived, Ginsburg and Huq identify five main manifestations of democratic erosion: constitutional amendments being used to reshape the system of government; the suppression of mutual accountability between branches of power; the concentration of power, via bureaucracy, in the executive branch; limits to the free exercise of speech and assembly that curtail the public sphere; and the garrotting of political opposition and subsequent limitation on the rotation of political power. These are all precise factors leading to a democratic erosion. This book, however, presupposes a more complex phenomenon, which will be called constitutional erosion.27 Constitutional erosion means a prolonged situation in time where different challenges to the constitutional structure of a country repeatedly take place, without, by themselves, disrupting the whole constitutional system. Nonetheless, in individual analysis, all those challenges undermine one aspect of the leading project defined by a constitution. Constitutional erosion cannot be simply compared to one single rupture, as that would be equivalent to bringing one constitution down – for instance, in the situation of a military coup d’état. Constitutional erosion describes circumstances in which a system is continuously

25 S Haggard and R Kaufman, Dictators and Democrats: Masses, Elites and Regime Changes (New Jersey, Oxford, Princeton University Press, 2016) 219. 26 Ginsburg and Huq (n 14) 63 use the example of Venezuela’s Chávez Government – who relied politically on low-ranking officials – as an example of civilian control of the military that has led to authoritarianism to point out how democracy can be weakened. Haggard and Kaufman, however, use their data to show that in the absence of civilian control collapses are usual: ‘A history of recurrent coups both heightens the influence of the military, even in nominally democratic contexts, and is associated with expectations and norms that facilitate future coups’ (Haggard and Kaufman, ibid, 226). 27 Mate referred to constitutional erosion, also relying on Ginsburg and Huq, to describe the process of undermining secularism as a constitutional principle in India led by the Bharatiya Janata Party (BJP): see M Mate, ‘Constitutional Erosion and the Challenge to Secular Democracy in India’ in M Graber, S Levinson and M Tushnet (eds), Constitutional Democracy in Crisis? (Oxford, Oxford University Press, 2018) 380. The concept of this book is a bolder one.

Constitutional Erosion  9 defied, harming the possibility of constitutional identity remaining the same. In this sense, the concept complements with the idea of the incremental processes of democratic erosion (Ginsburg and Huq), democratic decay (Daly) or authoritarian backsliding (Haggard and Kaufman). The difference, however, can be situated in the fact that constitutional erosion occurs on the level of constitutional norms, institutions, rights and identity. That does not mean, however, that constitutional erosion does not affect democracy. On the contrary, it supposes that democratic institutions are interdependent to constitutionalism. Since there are a number of complex factors involved in defining the constitutional identity of a particular system, the notion of constitutional democracy as being composed of elements presented by Ginsburg and Huq (the rule of law, electoral competition and liberal rights) is pertinent, but not enough. More is required to identify how a particular constitutional system has been continually eroded. In the case of Brazil and other comparative jurisdictions, factors such as the destruction of a social-democratic constitutionalism project or the unconstitutional and illegal distortion of popular sovereignty in the digital era also contribute to incremental destruction.28 That is why Tom Daly’s idea of democratic decay has the potential to involve a broader perspective which includes, but is not limited to, liberal democracy.29 That does not mean that constitutional erosion only takes place with a constitutional replacement or constitutional amendments.30 Whereas constitutional replacement in authoritarian environments can happen in crisis situations, such as in Venezuela since 2017, constitutional amendments can indicate incremental changes towards the dismantling of a constitution’s ‘basic structure’.31 Additionally, constitutional erosion can arise from processes of legal or statute changes which aim to modify one constitution and are not subject to constitutional review.32 Finally, institutions such as the courts and the military, when 28 However, where new technologies curb the possibility of autonomous political decisions, the element of competitive elections can also be affected. 29 ‘Democratic decay therefore works as a “meta-concept” that relates not only to express executive attacks on the structures of democratic government, but also more diffuse undermining of democratic structures by a variety of other political actors, and to the wider and longer-term processes that undermine democratic systems, such as declining public faith in democracy and dysfunction within the political process’ (T Daly, ‘Democratic Decay: Conceptualising an Emerging Research Field’ (2019) 11 Hague Journal on the Rule of Law 9). 30 Those would be concrete manifestations of abusive constitutionalism. See D Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189. 31 R Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 The Yale Journal of International Law 1. 32 In this case, the distinction made by Sadurski between the ‘anti-constitutional’ situations of Orbán’s Hungary and Kaczynski’s Poland is relevant: whereas PiS (the ‘Law and Justice Party’, Prawo i Sprawiedliwość) does not have the necessary majority for constitutional formal changes, Fidesz (the ‘Hungarian Civil Alliances’, Magyar Polgári Szövetség) was able to use constitutional replacement to design its illiberal project. In any case, one must consider that the structure of a constitutional project can be violated in a wider sense, including the approval of unconstitutional statutes that will not be checked by a captured constitutional court. W Sadurski, Poland’s Constitutional Breakdown (Oxford, Oxford University Press, 2019) 18.

10  Introduction devoted explicitly to political processes, can help accelerate the incremental destruction of a constitution. The idea of constitutional erosion that appears in this book is not one that would call only for the invocation of emergency powers. Although many constitutions have provisions that would, for example, authorise the president to restrict fundamental rights in times of exception, those are not covered here. If the incremental decreasing of the quality of democracy derives from the misuse of constitutional and legal institutions (or their subversion), from the perspective of constitutional law, there must be an idea that encompasses the slow and continuous rot of a constitutional project.33 III.  CONSTITUTIONAL CRISIS AND CONSTITUTIONAL EROSION: A COMPARATIVE ASSESSMENT

Consider the recent case of Peru as a pertinent parameter in terms of regional comparison with Brazil. It is a Latin American country that faced a recent authoritarian regime during the presidency of Alberto Fujimori (1990–2000). In 1993, during his government, a new constitution was enacted. Peru also faced several transitional measures, such as an Amnesty Law (enacted in 1995 and revoked in 2001), a truth commission (2001–2003) and, differently from Brazil, condemnations for gross violations of human rights, including a ruling by the Constitutional Tribunal against Fujimori in 2009.34 Similar to the corruption scandals that surrounded the so-called Operation Car Wash (Operação Lava Jato) in Brazil,35 successive Peruvian presidents have faced different accusations of bribery supposedly paid by the Brazilian constructor Odebrecht. Alejandro Toledo (2001–2006) was arrested in the United States and is currently awaiting extradition. Alan García (2006–2011) committed suicide in April 2019 when faced with imminent arrest. Ollanta Humala (2011–2016) was first imprisoned and then released; he is now awaiting a final trial. In 2016, Pedro Pablo Kuczynski (aka PPK), defeated Keiko Fujimori (who was also arrested for equivalent charges) in the presidential elections but resigned in 2018 in the face of impeachment accusations related to the same scandal.36 33 J Balkin, ‘Constitutional Crisis and Constitutional Rot’ in Graber, Levinson and Tushnet (n 27) 13. 34 E Serruya and M Guerra, ‘Peru’ in C Carvalho, J Guimarães and M Guerra (eds), Justiça de Transição na América Latina: Panorama 2015 (Brasília, Ministério da Justiça, Comissão de Anistia, RLAJT, 2015) 153. 35 A huge investigation into bribery, money laundering and corruption involving several Brazilian private and public companies (such as Petrobras), entrepreneurs and various traditional political figures. Several criminal proceedings that originated from the operation (which started in 2014 and terminated in 2021) are facing their sternest challenge: the publication of Telegram conversations has indicated that prosecutors and judges did not have a proper respect for the rule of law when leading the prosecutions and condemnations. Operation Car Wash is discussed in ch 3. 36 BBC Brasil, ‘Ex-Presidente do Peru é Preso nos EUA Acusado de Envolvimento em Esquema da Odebrecht’, BBC Brasil, 16 July 2019, www.bbc.com/portuguese/internacional-49011547;

Constitutional Crisis and Constitutional Erosion  11 A genuine constitutional crisis (or the end of a process of constitutional erosion) came about on 30 September 2019. President Martín Vizcarra, who took office replacing the PPK, threatened to dissolve Congress if it nominated six of the seven members of the Constitutional Tribunal.37 This threat was based on Article 134 of the Peruvian Constitution of 1993, which provides for the possibility of a presidential dissolution of Congress in case of a double legislative no-confidence vote against the cabinet.38 Vizcarra would have presented three questions of confidence to Congress – the question of confidence is a Peruvian constitutional mechanism that has similarities to a parliamentary confidence motion. One of the questions of confidence, the legislative reform of the Constitutional Tribunal nominations, was not debated in the morning of 30 September 2019, but was set for the afternoon. Although Congress approved the bill, it was too late. Since the legislative chamber was occupied in the morning with the nomination of Gonzalo de Zeballos for the constitutional tribunal, Vizcarra took it as a de facto vote of no confidence against his cabinet. The move followed another requirement to anticipate parliamentary elections on 27 September 2019. Vizcarra dissolved Congress. Creating the perfect storm for a constitutional crisis, Congress refuted the dissolution decree and continued its activities. The legislative chamber recognised Vizcarra’s ‘moral incapacity’ for office and voted to suspend him. The decision received 83 votes, even though the Peruvian Constitution required 87 votes in favour of suspension. By the end of the day, Vizcarra stated his intention to remain as president, even as Congress was swearing in Mercedes Araóz as president. However, on the evening of 1 October 2019, Araóz resigned. Vizcarra and then Prime Minister Salvador del Solar argued that the nominations for the Constitutional Tribunal demanded transparency, especially where they raised doubts about the honesty of the Congressmen. The legislative chamber ignored it, preferring to make its nomination first. The speaker of Congress, Pedro Olaechea (a cousin of the Constitutional Tribunal-nominated justice, Gonzalo de Zeballos) stated that the no-confidence vote should be an objective manifestation of the plenary organ. This was the moment when the crisis broke. On the one hand, Vizcarra stated that a de facto denial of confidence was enough. On the other hand, Congress, having been dissolved by Vizcarra BBC News, ‘Peru Opposition Leader Keiko Fujimori Arrested’, BBC News, 11 October 2018, www. bbc.com/news/world-latin-america-45819020. 37 REUTERS, ‘Presidente do Peru Ameaça Fechar Congresso se Parlamentares Nomearem Juízes para Tribunal Constitucional’, Reuters, 30 September 2019, https://br.reuters.com/article/ worldNews/idBRKBN1WF1PM-OBRWD. 38 ‘Article 134. The President of the Republic has the power to dissolve Congress if it has censured or denied its confidence to two Cabinets. The dissolution decree shall contain a call for the election of a new Congress. Such elections shall be held within four months of the dissolution of Congress, without any alteration of the existing electoral system. Congress may not be dissolved during the last year of its term. Once Congress is dissolved, the Permanent Assembly, which may not be dissolved, continues exercising its functions. There is no other form to revoke the parliamentary mandate. Under a state of siege, Congress may not be dissolved.’

12  Introduction (and after the cabinet had resigned), maintained that it had the power to suspend the chief of state. The legality of the Vizcarra proceedings divided Peruvian constitutionalists. Óscar Urviola declared it a coup d’état, as Article 117 of the 1993 Constitution allowed for the prosecution of the president if he dissolved the Congress for reasons other than those provided for in Article 134. Omar Roldán qualified it as a constitutional act, as Congress had made it impossible to debate the amendment that changed the way the Constitutional Tribunal justices were nominated, something that equated to a vote of no confidence.39 Roldán has explained, in an article published in 2018, that the question of confidence had been present in Peruvian constitutions since 1933. The 1993 Constitution differentiates between a necessary and a voluntary question of confidence. The first one refers to general government politics. The cabinet, or one of its members, invokes the second one, and the denial of this question of confidence leads to a partial or total dismissal of the executive government body. More than that, a voluntary question of confidence could also involve the proposal of a bill, not just a debate on public policies. This interpretation was sanctioned by the Constitutional Tribunal when it decided on the constitutionality of a Congress procedure rule which proposed to forbid that a question of confidence could be argued in case of a rejection of legislative proposals.40 The Peruvian situation had all the ingredients of a constitutional crisis. It included the possibility of having two different politicians acting as the sitting president, the refusal of the legislative branch to abide by executive order and a rebellion against the dissolution of the legislature. The conflict between the Government and the Fujimorista opposition was the result of a longer process. In the end, the Peruvian case shows that institutional instability leading to a constitutional crisis can be more profound, compared to the Brazilian case. Steven Levitsky, in a newspaper interview, denied that a coup had taken place and suggested that the situation could be easily compared to what Alberto Fujimori did in 1992.41 The Constitutional Tribunal ruling in 2018, expanding the subject of a question of confidence, provides the constitutional basis for the identification of a no-confidence vote. The Congress deliberately refused to hear Prime Minister Solar and to debate Vizcarra’s legislative proposal. The president’s suspension was invalid, as Congress had not reached the required quorum. The Peruvian political crisis shows that the Brazilian case may have similarities with other Latin American countries: military members interfering with politics; the 39 R Castro, ‘Perú Afronta Crisis Constitucional’, Gestión, 1 October 2019, gestion.pe/peru/ politica/peru-afronta-crisis-constitucional-noticia/?ref=gesr. 40 O Roldán, ‘La cuestión de confianza en el derecho constitucional peruano’ (2018) 23 Pensamiento Constitucional 37. Tribunal Constitucional del Peru, Exp 0006-2018-PI/TC, judgment of 6 November 2018. 41 S Colombo, ‘Vice do Peru Recua e Renuncia ao Cargo em Meio à Crise Constitucional’, Folha de S Paulo, 1 October 2019, www.1.folha.uol.com.br/mundo/2019/10/vice-do-peru-recua-e-minimizanomeacao-a-presidencia.shtml.

Brazil under Bolsonaro: Soldiers as Politicians  13 absence of parliamentary support leading to executive instability; and tribunals inserted in the definition of political decisions with broad impact. However, Vizcarra’s stability in power did not endure. In September 2020, the Congress again tried to oust the president in an impeachment process based on an accusation of fraudulent contracts for music concerts. In November 2020, the supposedly constitutional impeachment succeeded based on the argument that Vizcarra had permanent moral incapacity. An analysis of the Peruvian constitutional norms regulating the matter shows that there was no consistency in the accusations.42 In a probable parliamentary coup, the legislative decision pushed Peru towards a serious political crisis. Still, the Brazilian situation does not equate to that in Peru. IV.  BRAZIL UNDER BOLSONARO: SOLDIERS AS POLITICIANS

In 1988, Jair Messias Bolsonaro was a captain in the Brazilian army. Brazil transitioned from a dictatorship to a democracy and Bolsonaro moved from active military service to the reserves. He had enlisted in the armed forces 15  years earlier, in 1973, and was known as a dedicated and physically outstanding soldier. In 1986, Bolsonaro gave an interview to Veja magazine, for which he faced 15  days in prison for insubordination. One year later, the same magazine published a plan allegedly devised by Captain Bolsonaro and a colleague to place bombs in barracks in the State of Rio de Janeiro, an action against the policies of the then-Minister of the Army, General Leônidas Gonçalves, aimed at demonstrating grievances about army salaries. Having been convicted in a first trial, where sketches showing the plan supposedly drawn up by Bolsonaro were submitted as evidence, the Brazilian Superior Military Court (Superior Tribunal Militar) acquitted him in a nine-against-four decision. The technical appraisals used to claim that Bolsonaro had drawn the sketches did not persuade the judges. Most of the time, however, the judges’ debates criticised the Brazilian press and the way it had discussed the case. One can observe diverse signs of the influence of an esprit de corps during the trial.43 Immediately after his acquittal, Bolsonaro went to the military reserve and started a 30-year political career. As a long-time supporter of the military dictatorship, he declared that more people should have died, and that former Brazilian President Fernando Henrique Cardoso should have been shot. Bolsonaro praised the dictatorship’s torturer, Colonel Brilhante Ustra, as a hero. At the Chamber of Deputies (Câmara dos Deputados), he uttered that he would not rape one of his female colleagues because she did not ‘deserve’ it, shockingly implying that 42 R Yepes, ‘La Crisis Peruana y El Constitucionalismo Abusivo’, Dejusticia, 17 November 2020, www.dejusticia.org/column/la-crisis-peruana-y-el-constitucionalismo-abusivo. 43 L Carvalho, O Cadete e o Capitão: A Vida de Jair Bolsonaro no Quartel (São Paulo, Todavia, 2019) 14.

14  Introduction she was not even worthy enough to be a victim of such atrocious violation.44 He proposed no relevant bills and only a few were approved, according to the Chamber of Deputies website.45 After a period of an ongoing economic and political crisis that started in 2014, he was elected as Brazilian president, having being stabbed during an ultra-polarised campaign. Allegedly, his rise to power seemed to be democratic. These are a series of facts that help to indicate the diverse ingredients of the current Brazilian constitutional and political situation. During the campaign for the presidency, the Brazilian Superior Electoral Court (Tribunal Superior Eleitoral) arranged a meeting with the then-head of the Institutional Security Cabinet (Gabinete de Segurança Institucional), General Sérgio Etchegoyen. The assembly was arranged as an institutional response to a political manifest made by a military member. A reserve colonel had recorded a video in which he made several accusations and insults against the Federal Supreme Court Justice Rosa Weber, calling her a ‘scoundrel, corrupt and unfit’ judge. The meeting was tumultuous, with Federal Supreme Court Justice Roberto Barroso calling for more severe punishments, as General Etchegoyen tried to convince him that the best thing to do was to avoid attracting more public attention towards the case. Justice Dias Toffoli, the Federal Supreme Court Chief Justice (2018–2020), was alarmed by the fact that the army’s commander, General Eduardo Villas Bôas, had 300,000 armed men who supported Bolsonaro’s presidential candidacy.46 In the year of the 2018 elections, General Villas Bôas, also prompted a decisive reaction from then-Federal Supreme Court Justice Celso de Mello. The Court was about to rule on a writ of habeas corpus filed by former President Luís Inácio Lula da Silva against his imminent imprisonment (see chapter four). Former Federal Judge Sérgio Moro had convicted Lula for supposedly receiving the promise of a construction company of a flat on the coast near the city of Guarujá in exchange for benefits in Petrobras oil company contracts. In 2019, Moro became Minister of Justice and Public Security in Jair Bolsonaro’s cabinet. The day before Lula’s habeas corpus hearing in the Federal Supreme Court, General Villas Bôas declared on Twitter that he hoped that the Court would not cede to external pressure in the struggle against corruption. Federal Supreme Court Justice Celso de Mello stated, on the day of the trial, that respect for the 1988 Constitution was inescapable.47 44 A Forrest, ‘Jair Bolsonaro: The Worst Quotes from Brazil’s Far-Right Presidential Frontrunner’, The Independent, 8 October 2018, www.independent.co.uk/news/world/americas/jair-bolsonarowho-is-quotes-brazil-president-election-run-off-latest-a8573901.html; B Winter, ‘System Failure: Behind the Rise of Jair Bolsonaro’, Americas Quarterly, 24 January 2018, www.americasquarterly. org/content/system-failure-behind-rise-jair-bolsonaro. 45 See www.camara.leg.br/deputados/74847/biografia. 46 F Recondo and L Weber, Os Onze: O STF, Seus Bastidores e Suas Crises (São Paulo, Companhia das Letras, 2019) 17. 47 D Gullino, ‘Celso de Mello rebate comandante do Exército: respeito à Constituição é “indeclinável”’, O Globo, 4 April 2018, oglobo.globo.com/brasil/celso-de-mello-rebate-comandantedo-exercito-respeito-constituicao-indeclinavel-22558720. In 2021, General Villas Bôas declared that

Brazil under Bolsonaro: Soldiers as Politicians  15 The military, which seemed to have been out of politics for a long time, returned, legally or illegally, to crucial issues of constitutional relevance. Courts engaged in political matters with members of the armed forces, helping them to avoid accountability for past violations of human rights while, at the same time, judicial authorities contributed to the turmoil by rulings on politically sensitive matters and demands regarding the corporation. Elections took place against a background of violence, radicalisation and general disinformation,48 with the military sword of Damocles always hanging over the heads of political actors. Judges and the military contributed at different levels to an agenda aimed at dismantling the social-democratic constitutionalism defined by the 1988 Constitution. In this already constitutionally troubled scenario, President Bolsonaro started his term. His first months in the presidency did not oppose his authoritarian profile. He launched a general attack on public universities, defining them as unproductive and ideologised by the political left. The objective was to pave the way for restricting their budgets and fostering a debate supporting their privatisation.49 His cabinet had more military members than those of any of the dictators that ruled the country between 1964 and 1985.50 Nonetheless, he would also face friction due to his lack of capacity to act as head of state. His use of executive orders grew exponentially and unlawfully, including controversial matters such as gun licences. The issuing of executive orders prompted reactions from the Federal Supreme Court and the National Congress.51 Similarly to his former American counterpart, Trump, Bolsonaro made frequent polemical utterances ranging from vulgar manifestations about explicit sexual images made at a carnival event to verbal aggression towards his political opponents, such as the Brazilian Bar Association President and his father (a political opponent who had been killed by the dictatorship), the High Commissioner for Human Rights, Michele Bachelet, and Brigitte Macron.52

his declaration was previously discussed with high-ranking military officers. C Castro (ed), General Villas Bôas: Conversas com o Comandante (São Paulo, FGV, 2021). 48 M Fisher and A Taub, ‘How YouTube Radicalized Brazil’, NY Times, 11 August 2019, www. nytimes.com/2019/08/11/world/americas/youtube-brazil.html; M Magenta, J Gragnani and F Souza, ‘How WhatsApp Is Being Abused in Brazil’s Elections’, BBC News, 24 October 2018, www.bbc.com/ news/technology-45956557. 49 T Phillips, ‘Students Protest Across Brazil Over Jair Bolsonaro’s Sweeping Cuts to Education’, The Guardian, 31 May 2019, www.theguardian.com/world/2019/may/31/students-protest-acrossbrazil-over-jair-bolsonaros-sweeping-cuts-to-education. 50 J Carvalho, Forças Armadas e Política no Brasil (São Paulo, Todavia, 2019) 16. 51 E Meyer and A Oliveira, ‘Governing Through Decrees: Between Guns and Authoritarian Symptoms’, Democratizando, 22 May 2019, cjt.ufmg.br/en/2019/05/22/governing-through-decreesbetween-guns-and-authoritarian-symptoms. 52 Valor Internacional, ‘Brazilian Bar Chief Files Supreme Court Complaint Against Bolsonaro’, Valor Econômico, 30 July 2019, www.valor.com.br/international/news/6369749/brazilian-bar-chieffiles-supreme-court-complaint-against-bolsonaro?print=1; Reuters, ‘Bolsonaro Ataca Bachelet e Presidente Chileno Sai Em Defesa de Antecessora’, Reuters, 4 September 2019, br.reuters.com/article/idBRKCN1VP1P0-OBRTP; A Chrisafis, ‘Macron Rebukes Bolsonaro for “Extraordinarily Rude”

16  Introduction The making of such manifestations is strategic. As soon as they happen, online attacks on individuals and institutions follow: this has happened to journalists and political agents who have been hit by President Bolsonaro.53 In extreme cases, some professors and even a member of the political opposition had to go into exile. Speeches against environmental politics and norms are behind a supposedly previously coordinated ‘day of fire’ that ignited the burning of huge areas of the Amazon forest, all amid institutional changes that loosened control in the name of agribusiness.54 President Bolsonaro’s behaviour is not merely unconventional for the institutional position he holds. The offences perpetrated against the honour, dignity and decorum of the office have reached a point where scholars have started to debate the feasibility of a legal reprehension through impeachment.55 Were it not for the Federal Supreme Court partially restricting his executive orders, President Bolsonaro would have terminated the participation of civil society groups in the process of defining public policies. The councils were a constitutional tradition at the federal level (see chapters two and eight).56 President Bolsonaro also politicised institutions. He appointed members to the Brazilian reparations commission for the gross violations of human rights committed during the dictatorship, the Amnesty Commission, who were ideologically linked to the idea that no authoritarian period took place. The Amnesty Commission has a constitutional and legal basis. In a recent trial, one of its new counsellors, an army general, accused the member of a former opposition group of actually being a terrorist instead of a victim of the dictatorship.57 The Prosecutor General of the Republic (Procurador-Geral da República), the head of the Brazilian federal prosecutors, was chosen not because it was important to keep this office independent, but because President Bolsonaro viewed him as being ideologically compatible. The move triggered criticism from several federal prosecutors.58 The Minister of Foreign Affairs was someone who Comments About Wife’, The Guardian, 26 August 2019, www.theguardian.com/world/2019/aug/26/ macron-rebukes-bolsonaro-over-extraordinarily-rude-comments-about-wife. 53 D Bramatti and A Monnerat, ‘Após Ataques de Bolsonaro, Boatos Contra Alvos do Presidente Ganham Impulso nas Redes’, Estadão, 4 August 2019, politica.estadao.com.br/blogs/estadao-verifica/ apos-ataques-de-bolsonaro-boatos-contra-alvos-do-presidente-ganham-impulso-nas-redes. 54 D Miranda, ‘Fires Are Devouring the Amazon. And Jair Bolsonaro Is To Blame’, The Guardian, 26 August 2019, www.theguardian.com/commentisfree/2019/aug/26/fires-are-devouring-the-amazonand-jair-bolsonaro-is-to-blame. 55 R Mafei, ‘Indignidade, Desonra e Quebra de Decoro Presidencial na Era Jair Bolsonaro: Há Maus Modos, e Há Crimes de Responsabilidade’, Jota, 13 September 2019, www.jota.info/opiniao-e-analise/ artigos/indignidade-desonra-e-quebra-de-decoro-presidencial-na-era-jair-bolsonaro-13092019. 56 V Lima, ‘Brazil’s New Leaders Are Challenging the Tradition of Participatory Democracy. Here’s Why’, Washington Post, 7 June 2019, www.washingtonpost.com/politics/2019/06/07/brazilsnew-leaders-are-challenging-tradition-participatory-democracy-heres-why. 57 C Rezende, ‘General Diz Que Comissão de Anistia Mudou e Defende Rever Indenizações’, UOL, 10 August 2019, noticias.uol.com.br/politica/ultimas-noticias/2019/08/10/general-diz-que-comissaode-anistia-mudou-e-defende-rever-indenizacoes.htm. 58 M Grillo, ‘Em Ato Contra Indicação à PGR, Procuradores Criticam “Alinhamento” de Aras a Bolsonaro’, O Globo, 9 September 2019, oglobo.globo.com/brasil/em-ato-contra-indicacao-pgrprocuradores-criticam-alinhamento-de-aras-bolsonaro-23936934.

Armed Forces and Politics: Brazil and Beyond  17 believes there must be a struggle against ‘globalism’ and that ‘there is no climate change catastrophe’. President Bolsonaro also attempted to appoint his son to the Brazilian United States Embassy.59 All of those nominations fulfil one of the criteria Dresden and Howard have pointed out for processes of incremental authoritarianism: the politicisation of state institutions.60 Following in his father’s footsteps, Carlos Bolsonaro, a member of Rio de Janeiro’s City Council, tweeted: ‘the transformation Brazil wants will not happen at the speed we yearn for through democratic means’.61 V.  ARMED FORCES AND POLITICS: BRAZIL AND BEYOND

A key feature for President Bolsonaro’s Government is the support of diverse members of the armed forces. In a comparative analysis of the constitutional role of the military, one must consider countries that have faced well-defined crises in order to properly evaluate the Brazilian case. Thailand has been the subject of varied literature. The May 2014 coup happened without popular resistance, following the declaration of a state of emergency by General Prayuth Chan-ocha and a television broadcast denying that a coup was taking place. The military convened the political elites of the country for peace talks and arrested them upon their arrival. General Chan-ocha, who had declared himself prime minister, started to present a weekly TV show where he almost ‘ordered’ people to be happy with the new political situation.62 In 2017, a new constitution was signed by King Maha Vajiralongkorn. The document restricted the political force of the party deposed in 2014 and granted immunity to military officials from criminal charges.63 As Ginsburg and Huq pointed out, Thailand has seen more than 12 coups since 1932.64 The involvement of the military in politics, especially, their role in curbing democracy through coups, are no longer part of a global tendency – although 59 Reuters, ‘Brazil Foreign Minister says “There Is No Climate Change Catastrophe”’, Reuters, 11 September 2019, www.reuters.com/article/us-brazil-environment-araujo/brazil-foreign-ministersays-there-is-no-climate-change-catastrophe-idUSKCN1VW2S2; BBC News, ‘Brazil Prosecutors Move to Ban Bolsonaro’s Son From Ambassador Job’, BBC News, 12 August 2019, www.bbc.com/ news/world-latin-america-49323411. 60 ‘Nearly every electoral authoritarian regime has politicized state institutions, biased media, and an inequitable distribution of resources available to political parties’: J Dresden and M Howard, ‘Authoritarian Backsliding and the Concentration of Political Power’ (2016) 23 Democratization 7, 7. 61 T Phillips, ‘Outcry as Bolsonaro’s Son Questions Value of Democracy in Brazil’, The Guardian, 11 September 2019, www.theguardian.com/world/2019/sep/11/carlos-bolsonaro-brazildemocracy-dictatorship-jair. 62 A Marshall, A Kingdom in Crisis: Thailand’s Struggle for Democracy in the Twenty-First Century (London, Zed Books, 2015) 183. 63 Former federal judge and now Bolsonaro’s Minister of Justice Sérgio Moro also proposed, as the president did in his electoral campaign, a ‘carte blanche’ for police officers who committed crimes under ‘excusable fear, surprise or violent emotion’ (L Milane, ‘Triggering Police Violence in Brazil’, NACLA, 10 April 2019, nacla.org/news/2019/04/10/triggering-police-violence-brazil. 64 Ginsburg and Huq (n 14) 50.

18  Introduction Myanmar presented itself as an exception in 2021.65 Ginsburg and Huq also mention that, from 1960 until 1989, there were 145 coups worldwide, compared to just 36 after that period.66 In Latin America, Argentina has advanced transitional justice policies, focusing on accountability and reforms that helped to abolish the military’s jurisdiction and excluding its members from political involvement.67 Broad criminal justice proceedings made the armed forces turn their attention towards defending national sovereignty instead of domestic subjects.68 Ríos-Figueroa argues for constitutional courts to take on an informational role and act as mediators in civilian–military relationships, presenting, as an example, the comparative cases of Bolivia and Colombia. The latter would be more effective, as the Court defined the space of military jurisdiction more gradually. In contrast, the Bolivian Constitutional Tribunal faced a military rebellion when it suddenly tried to enforce a ruling that placed members of the military as defendants under ordinary jurisdiction in cases of crimes against humanity.69 However appropriate such informational agency can be, the Brazilian case has distinct features that give the military more power to avoid these types of conflict. Chile started to hold military officers accountable for crimes against humanity committed during the dictatorship of 1973–1991. Following around 1,000 convictions, former Army Commander (2002–2006) Juan Emilio Cheyre was condemned for involvement with the Caravan of Death, witnessing the extrajudicial killings of 15 people.70 In Uruguay, after criticising judicial rulings that convicted army members for crimes committed during the dictatorship of 1973–1985, General Guido Rios was exonerated by President Tabare Vazquez, who affirmed that it was beyond military duties to criticise a constituted power.71 These facts show that civilian–military relationships have different patterns

65 The occurrence of coups, however, has declined in past years: since 1950, in 142 coups recorded in Latin America, only five happened after 2000: the 2009 Honduras coup against Manuel Zelaya being the last one. These data do not indicate better chances for democracy. On the contrary, new forms of deterioration came about (C Besaw and M Frank, ‘No Coups Occurred in 2018. Will Next Year be so Stable?’ The Conversation, 3 October 2019, theconversation.com/no-coupsoccurred-in-2018-will-next-year-be-so-stable-108387). For Myanmar, see M Crouch, ‘Myanmar Coup on the Pretext of a Constitutional Fig Leaf’, 4 February 2021, melissacrouch.com/2021/02/04/ myanmar-coup-on-the-pretext-of-a-constitutional-fig-leaf. 66 Ginsburg and Huq (n 14) 55. 67 J Ríos-Figueroa, Constitutional Courts as Mediators: Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America (New York, Cambridge University Press, 2017) 2. 68 ‘So, to read the Argentine case as an example proving that prosecutions in themselves are not possible is to disregard the successfully completed trial of the Juntas and the degree to which the Argentine military has since been subordinated to civilian control’ (K Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York, WW Norton & Co, 2011) 129–30. 69 Ríos-Figueroa, Constitutional Courts as Mediators (2017) 9. 70 Reuters in Santiago, ‘Judge Convicts Chile’s Former Army Chief in Deaths of 15 During Pinochet’s Regime’, The Guardian, 9 November 2019, www.theguardian.com/world/2018/nov/09/ chile-former-army-chief-convicted-pinochet-regime. 71 AP News, ‘Uruguay’s President Removes Commander of the Army’, AP News, 12 March 2019, www.apnews.com/55698fabf74a48b4a355e6759bf23941.

The Structure of this Book  19 in these countries. The following chapters will approach the constitutional consequences of the lack of criminal liability for past crimes against humanity. However, it is no surprise that such trials are absent in unstable political jurisdictions, such as Brazil, during its transformation in the past few years. Civil–military relationships are not the only issue that drives Brazilian constitutional erosion. They play a distinctive role, as chapters one, five and six demonstrate. However, and that is the reason why the idea of constitutional erosion is suitable for the Brazilian case, the process of compromising constitutional identity is broader and shaped by a range of complex factors. This book is an attempt to deal with such complexity. Ranging from military, courts, milícias, the National Congress, the social media, and neoliberal policies, the book covers a wide set of subjects that can give a glimpse to foreign and Brazilian readers of the perils Brazilian constitutionalism have been facing. VI.  THE STRUCTURE OF THIS BOOK

The different chapters that form this book aim to encompass the multiplicity of factors that generated the current Brazilian constitutional erosion; all of them are analysed comparatively. Chapter one seeks to present the Brazilian transitional justice process from the dictatorship of 1964–1985 to the democratic period under the 1988 Constitution through the concept of ‘transitional constitutionalism’. It will focus mainly on the various tools of transitional justice and how they are related to constitutionalism’s consolidation. The chapter provides a brief historical background of the dictatorship’s repressive apparatus and examines how it was able to survive the Brazilian 1988 Constitution. The way Brazilian courts related to the authoritarian period and how they remained shaped by it under post-1988 social-democratic constitutionalism is part of the critical narrative. It will analyse cases referred to as ‘transitional constitutionalism’ that involved the Brazilian transition: one brought before the Federal Supreme Court involving the Amnesty Act (Act Number 6.683 of 1979) and two brought before the Inter-American Court of Human Rights (IACtHR): Gomes Lund and Vladimir Herzog. These judgments illustrate one of the main situations in which judicial authorities failed to comply with the 1988 Constitution and the American Convention on Human Rights to avoid questioning the institutional ‘respect’ for the military. This self-restraint, contrary to the Brazilian process of the judicialisation of politics, denounces the maintenance of an authoritarian legacy in Brazilian courts and paves the way for future constitutional erosion and the return of the military to politics. The 1988 Constitution has a welfare DNA. Chapter two attempts to define what is meant by the idea of ‘social-democratic constitutionalism’. The chapter aims to detail how transitional processes are necessarily permeated by social demands, especially considering a comparison of regions that share sharp inequality, such as Latin America and Africa. Comparing the cases of Brazil and South Africa, it aims to recover the socio-economic issues that influenced

20  Introduction the constitutional design of both the 1988 Brazilian Constitution and the 1996 South African Constitution. The most important question here is to understand why equality issues are incorporated by constitutions and take part in the transitional processes. The chapter debates the notions of transitional justice, transformative justice, transitional constitutionalism and transformative constitutionalism. Chapter two relies on critical approaches to neoliberalism to explain why political measures that follow this trend are unconstitutional in the Brazilian context and are connected to the resurgence of authoritarianism. The chapter will cover the Federal Supreme Court’s recent rulings on socio-economic issues (such as public servants’ right to strike and the public debt cap) and the neoliberal agendas of Presidents Temer and Bolsonaro, aiming at also showing how the judicial authorities became entangled in this new form of authoritarian practice. Taking into account the fact that the 1988 Constitution performed a socioeconomic endeavour, the expectation was that Brazilian courts and judges would confront an institutional reform process that could make them sensitive to social equality issues. This process is yet to happen in Brazil. Chapter three aims to demonstrate the considerable gap between courts and the general population in Brazil, leading to the training of judges not prepared to deal with Brazilian problems. More than that, those judges have not only made problematic decisions on socio-economic issues but, following the focus of the book, they have entitled themselves to decide on matters of morality, economics and politics. The chapter aims to show that an institutional approach is essential to understand the recent movement of judges following the pattern of the military and continuously breaching the Brazilian 1988 Constitution. That does not mean that the courts only brought problems for Brazilian constitutionalism. On the contrary, the book also highlights rulings that have collaborated to secure minorities’ rights. Like any constitution, the Brazilian 1988 Constitution aimed at stabilising the political system. Taking into account the roles of moral guides of society, Brazilian courts have engaged in political activity, ruling on political matters of great sensibility or even omitting themselves in situations where the 1988 Constitution was clearly in danger. Chapter four aims to present different judicial rulings during the political crises that have taken place in Brazil since 2014, showing how they contributed to destabilising politics or driving it in a way the judges wanted it to go. It will cover the different ways in which judges interfered with and participated in Brazilian politics. Chapter five illustrates the different ways by which a Brazilian institution and one type of criminal organisation – respectively, the military and the milícias – have weaponised politics in unconstitutional and unlawful ways to win power and deteriorate the basis for constitutional democracy.72 Taking into account 72 It is important to highlight that there is a difference between the military members of the armed forces (the army, the navy and the air force) and the military members of the so-called

The Structure of this Book  21 the social-democratic configuration designed by the 1988 Constitution, the involvement of those three ‘political actors’ is analysed. The role of the military has expanded in contemporary politics. Its central features are the lack of civilian control (even after 1988), unconstitutional participation in decision-making processes and unlawful pressures on the judiciary. Milícias present an even more severe challenge to Brazilian constitutionalism: acting in a completely illegal fashion, they have been, however, successful in reaching political power and sharing connections with the executive, legislative, judicial and military authorities. It is not the objective to recognise that these actors share common goals, but to understand how the subversion of the rule of law appears in their trajectories. Although much has changed since 1891, there remains a debate in Brazilian politics about whether the military and the courts should act as moderating powers, following Benjamin Constant’s theory. Chapter six intends to revisit and analyse such ideas, showing how courts have been converging with the military in the past few years. It will explore how, in Brazilian constitutional history, the military has participated in politics and, from 1964 on, interfered with the judicial branch to avoid any rebellion. Under the 1988 Constitution, the tense line between civilians and the military will show that to restrict such an elite from entering political activities was a difficult task. The proposal will unravel how both the militarisation and judicialisation of politics overlap in Bolsonaro’s presidency. Chapter six will analyse signs of the ‘weak democracy syndrome’ (Haggard and Kaufman) in Brazil and provide a critical approach towards the courts and the military, as actors that can work to destabilise, rather than consolidate, new democracies. Chapter seven debates how the digital revolution not only provides for but also damages the constitutional processes of the formation of popular sovereignty. It aims to cover an under-investigated topic in comparative constitutional law:73 how constitutionalism, not just democracy, is affected by the digital revolution. Relying on the notion of surveillance capitalism (Zuboff), it seeks to describe how digital media has helped, in Brazil and abroad, to undermine the way in auxiliary forces, the military police organized by each Brazilian state. The 1988 Constitution (in its Article 144) also separates the forces that act on public security issues (a) federal police (a civilian force); (b) road transport and railroad police (civilian forces); (c) civilian police inside each state; (d) military police and military firefighters in each state (military forces); and (e) penitentiary polices in federal and state levels (civilian forces). The process of militarisation of police forces dates back to 1960s and was deepened with the 1964 coup. The milícias were born in the midst of that confusion between civilian and military activities, inheriting practices learned from the military forces. 73 Martin Moore’s assessment applies to a wide literature recently published by political scientists and also by constitutional scholars: ‘there is one glaring omission from Levitsky and Ziblatt’s thesis. Entirely missing from their analysis is the communications revolution. There are lots of lessons from history, and assessments of formal and informal constraints on the US presidency, but – if one takes out the references to a few Donald Trump tweets – it is as if the internet, social media and tech platforms had not happened. This is like a life insurance company calculating someone’s life expectancy based on their diet, without taking into account that they are living in a warzone. And Levitsky and Ziblatt’s omission is also made by most democratic governments’ (M Moore, Democracy Hacked: Political Turmoil and Information Warfare in the Digital Age (London, Oneworld, 2018) 252).

22  Introduction which people make political choices through fake news, bots and algorithms. It will explore the connections between neoliberalism, deregulation, surveillance capitalism, big data extraction and threats to democracy. The chapter will debate how constitutionalism is affected by the way data surveillance and the prediction of political behaviour curb democratic procedures. The chapter will discuss the influence of the digital app WhatsApp and the website YouTube in the Brazilian elections of 2018, the obstacles faced by inoperative electoral justice in the field of digital communication and the work of a legislative committee created in 2019 to deal with the problem. The chapter hypothesises that the digital revolution brought severe challenges to democracy, which directly affected the way a constitution aims to make its project effective. Chapter eight debates the prospects of constitutional resilience in the 1988 Brazilian social-democratic constitutionalism. It will recollect the centrality of the coalitional model of the presidential system and its distortions. The impeachment procedures of ex-President Collor and, especially, ex-President Rousseff are examined to show how the 1988 Constitution resisted even to its political misuse in these processes. The relevant attacks on democracy prompted by President Bolsonaro’s Government are normatively assessed and the essential reactions from the National Congress, the Federal Supreme Court, State Governors and civil society members show that there is still space for defending the 1988 Constitution. Against the constitutional erosion, institutions should protect the affected constitution. Such a wide range of subjects shows that to completely engage with what it is at stake in Brazilian ‘constitutional erosion’, an appropriate constitutional comparative perspective might not be enough. It will also be essential to take into account a transdisciplinary approach that considers perspectives from sociology and political science.74 In this sense, the book makes an effort to present a broad category of elements that contribute to the difficult situation Brazilian constitutionalism has been facing. The book shows that there is a tension in Brazilian constitutionalism. On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics. On the other hand, it retained authoritarian practices through the hands of the military and the judicial elites and, more recently, through the contribution of illegal actors, such as the milícias. Institutional and non-institutional factors have contributed to sustaining a prolonged erosion, receiving the additional

74 All of this will be done using the current tools that constitutional comparative law provides: small-N and large-N analyses will be helpful to diagnose the level of ‘health’ of Brazilian democracy and its institutions. Referring to Hirschl’s ideas (R Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford, Oxford University Press, 2014), the proposal uses ‘comparative’ in the sense of both ‘(vii) careful “small-N” analysis of one or more case studies aimed at illustrating causal arguments that may be applicable beyond the studied cases; and (viii) “large-N” studies that draw upon multivariate statistical analyses of a large number of observations, measurements, data sets, etc. in order to determine correlations among pertinent variables’.

The Structure of this Book  23 elements of a neoliberal agenda and low popular participation due to the influence of digital revolution. The book aims to provide a careful (and comparative) analysis of a single jurisdiction, Brazil, and to account for both the successes and the failures of its most recent constitutional project, inaugurated by the 1988 Constitution. It aims to provide an understanding of the following aspects of the constitutional development and erosion of this country: (1) the different phases of the promised transition from military rule to a social-democratic constitutionalism; (2) the obstacles to democratisation derived from the absence of genuine institutional reforms in the judicial branch and the civil-military relationship; and (3) the legal and social practices which maintained a structure that obstructed the emergence of an effective social democracy, such as the neoliberal pattern, the acceptance in the political field of criminal organisations, such as the milícias and the way the digital revolution has been harming the formation of democratic sovereignty. There are three caveats here. Firstly, to adopt a critical point of view does not mean that there is no hope for Brazilian constitutionalism. On the contrary, to be critical means to be hopeful, showing the problems, shortages and limits of the functioning of Brazilian constitutional institutions. The public institutions – the armed forces or the Federal Supreme Court, for example – are frequently under both academic and social scrutiny. The book aims to show the advancements of post-1988 constitutionalism in Brazil, but, also, to pay attention to the drawbacks left by institutions when they do not follow the playbook. Secondly, this book was written considering facts as they were happening, with all the difficulties such an endeavour implies. Thirdly, an essential part of the book was written during the COVID-19 pandemic, a situation that has resulted in considerable transformations throughout the world; they have been included in the book where they have seemed relevant to the subjects debated herein.

1 Transitional Constitutionalism Judicial and Military Attempts at Controlling a Transition

O

n 28 April 2010, the Brazilian Federal Supreme Court was in the midst of a trial that would have a long-lasting effect on the relationship between the military,1 the courts and politicians in Brazil. That was the Claim of Breach of Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental, ADPF) 153. It was a form of abstract constitutional review by which one of the authorities indicated in the 1988 Constitution files a claim against either a normative act or law supposedly in breach of a fundamental constitutional command. This time, the Federal Bar Association (Conselho Federal da Ordem dos Advogados do Brasil) was questioning if the generally accepted interpretation of the Amnesty Law of 1979 (Law 6.683 of 1979) was in accordance with the 1988 Constitution. This granted an amnesty to public agents who, on behalf of the dictatorship of 1964–1985, had committed torture, murder, sexual offences and other crimes against political opponents and other civilians. On the same day, President Luís Inácio Lula da Silva hosted a dinner at the Palace of Planalto. Among others, the Federal Supreme Court justices, the speaker of the Chamber of Deputies (Câmara dos Deputados, the lower house), Michel Temer (who would become President of the Republic between 2016 and 2018) and the speaker of the Federal Senate (Senado Federal, the upper house), José Sarney (who had been President of the Republic between 1985 and 1990) were in attendance.2 There were rumours at the time that the subject of amnesty 1 As it was mentioned in the introduction of this book, one must consider that military members in Brazil cover both the armed forces (supposedly only dedicated to defending the Brazilian territory against foreign aggression) and the auxiliary forces, that is, the military police of the states. During the dictatorship of 1964–1985, that movement of militarisation was predominant. The repressive structure was integrated by members of the diverse forces and they are, in most cases, those that could be held accountable for the crimes against humanity committed during the 1964–1985 dictatorship. 2 T Monteiro, ‘Lula Recebe a Cúpula do Judiciário em Jantar no Alvorada’, O Estado de S.  Paulo, 28 April 2010, politica.estadao.com.br/noticias/geral,lula-recebe-a-cupula-do-judiciarioem-jantar-no-alvorada,544342.

Transitional Constitutionalism  25 would have been raised and that President Lula adopted a neutral position. Whereas the chief of staff, Dilma Rousseff (who became president from 2010 until 2016 and who was a former political opponent of the dictatorship), and the minister of social communication, Franklin Martins (also a former political opponent of the dictatorship), opposed amnesty for the supporters of the dictatorship, the Minister of Defence Nelson Jobim advocated so-called ‘bilateral’ amnesty (for both supporters and opponents of the dictatorship).3 Nelson Jobim was a former lower house representative and a deputy in the Constituent Assembly of 1987–1988, which produced the 1988 Constitution. Minister of Justice during Fernando Henrique Cardoso (FHC)’s term (1995–2002), Jobim was appointed to the Federal Supreme Court in 1997 and remained in office until 2006. He then became Minister of Defence between 2007 and 2011, and served Presidents Lula and Dilma. From time to time, Jobim publicly tried to clarify controversial juridical and political matters. On the fifteenth anniversary of the 1998 Constitution, Jobim gave an interview to the O Globo newspaper, in which he stated that a few constitutional provisions would not have been finally voted on after they had been inserted by an editorial committee of the 1987–1988 Constituent Assembly, including that which established a separation of powers.4 He then retracted the declaration.5 Right from the start, it is vital to highlight the dynamic, historical and discursive characters of a constituent assembly ignored by those findings. In 2014, Jobim also gave testimony on the unending debate on the range of the 1979 amnesty, especially when considered in light of the 1988 Constitution. Jobim had already avoided an institutional reinterpretation of the Amnesty Law of 1979 three times, which could have held military and other officers criminally liable. During FHC’s term, Jobim would have acted to limit the range of the investigations of the Special Commission for People who Were Forcibly Disappeared or Killed for Political Reasons (Comissão Especial sobre Mortos e Desaparecidos Políticos, CEMDP). He also tried to restrict civil liability for the murder of former military captain Carlos Lamarca, a political opponent of the dictatorship. During Lula’s term, Jobim had meetings with his former colleagues from the Federal Supreme Court to present opinions related to the judgment of the ADPF 153. Finally, when, in 2009, debates started for the creation of the National Truth Commission (Comissão Nacional da Verdade, CNV) he would have also pointed out that there was a difference between responsibility and truth-finding.6 3 F Recondo and L Weber, Os Onze: o STF, Seus Bastidores e Suas Crises (São Paulo: Companhia das Letras, 2019) 269. 4 L Medeiros, ‘Constituição Cidadã: Avanços e Revelações’, O Globo, 5 October 2003, memoria. oglobo.globo.com/jornalismo/edicoes-especiais/sem-votaccedilatildeo-9938719. 5 N Jobim, ‘A Constituinte Vista por Dentro – Vicissitudes, Superação e Efetividade de uma História Real’ in J Sampaio (ed), Quinze Anos de Constituição (Belo Horizonte, Del Rey, 2004) 9f. 6 R Valente, ‘Em Vídeo, Jobim Detalha como Atuou para Impedir Revisão da Lei da Anistia’, Folha de S Paulo, 27 August 2019, www.1.folha.uol.com.br/poder/2019/08/em-video-jobim-detalhacomo-atuou-para-impedir-revisao-da-lei-da-anistia.shtml.

26  Transitional Constitutionalism The Federal Supreme Court’s ruling of 2010 in the ADPF 153 raises several issues that have consequences for the past, the present and the future of Brazilian constitutionalism. Additionally, they point to juridical and political elements that, comparatively, have resonance in constitutional theory. Consider, for instance, the case of Chile, a country which had experienced a period of dictatorship similar to that of Brazil (the Pinochet dictatorship, which lasted from 1973 until 1990) and transitioned to democracy whilst preserving the 1980 Constitution. Brazil and Chile also worked together in the so-called ‘Operation Condor’.7 The Chilean judiciary initially adopted a conservative approach to crimes committed by the military during the dictatorship. The Chilean Amnesty Law, Decree Law 2.191 of 1978, was invoked continuously, as were other statutes of limitations. Cases that treated the crimes of the dictatorship era as punishable were rare, but their adjudication started at the onset of the democratic period. For instance, the cases of the enforced disappearances of José Julio Llaulén and Juan Eleuterio Cheuquepán were considered by a firstlevel court to be ‘ongoing crimes’ in 1993. Therefore, they could not be favoured by a statute of limitations. The ruling was confirmed by the Chilean Supreme Court afterwards.8 Chilean courts snaked through different answers to the problem, but they started to apply the Geneva Convention and to treat the Pinochet era’s crimes as crimes against humanity.9 The ruling of the IACtHR in Almocinad Arellano played an essential role in re-shaping the case law.10 Although the courts continued to rely on a provision of the Chilean Criminal Code which benefited the defendants through a ‘half prescription’, the judiciary seemed to abide by human rights norms and a new reading of the 1980 Constitution. However, politics also influenced the scenario. In the middle of an insurgency sparked by the pension’s reform in 2019, when the country was heading towards a constituent process, Justice María Brahm, the Constitutional Tribunal’s Chief Justice, leaked to the press that Justice Iván Aróstica, the former Chief Justice of the Court, had postponed the presentation of cases concerned with human rights violations. According to her, the deferral was due to lawyers who were charging their clients with reference to the length of the delay they could

7 Operation Condor was a transnational repressive effort by South American dictatorships during the 1970s. The agreement involved the imprisonment of political opponents who had left their homelands and gone into exile in other Latin American countries. A meeting hosted by Chilean military members in Santiago in 1975 would be the start of the formal organisation of the network – Brazil joined in 1976. See F Lessa, ‘Justice beyond Borders: The Operation Condor Trial and Accountability for Transnational Crimes in South America’ (2015) 9 International Journal of Transitional Justice 494. 8 See Chile, Case 37.860, Juzgado de Letras of Lautaro, judgment 29.9.1993. 9 See Chile, Case 559-04, Supreme Court, judgment 13.12.2006 10 See Inter-American Court of Human Rights, Case of Almonacid-Arellano et al v Chile, judgment 26.9.2006. For a survey on these cases, see C Collins et al. ‘Jurisprudential Milestones in Human Rights Cases: Chile 1990–2019’, Observatorio de Justicia Transicional, www.derechoshumanos.udp.cl/ derechoshumanos/index.php/observatorio/func-startdown/522.

Transitional Constitutionalism  27 obtain from the Court for issuing a final ruling.11 In fact, since 2015, a series of cases were controversially appealed to the Constitutional Tribunal with the specific aim of either impugning final Supreme Court verdicts or delaying their effectiveness.12 Such an intricate web illustrates the connections between politics, military and courts. Nonetheless, the Chilean scenario seems more promising if one considers the liability for gross violations of human rights a good indicator for constitutionalism and the rule of law enforcement. The two condemnations of the Army’s previous commander, General Juan Emilio Cheyre (2002–2006) – one for the torture sessions that happened in Arica right after the 1973 Pinochet coup and the other for covering up the so-called Death Caravan (Caravana de la Muerte)13 – show that, even with a constitution that traces back to the dictatorship, it is possible to calibrate the relationship between civilian and military authorities through the courts.14 With 600 criminal convictions for violations occurred under Pinochet’s regime, it is hard to state that the civil–military relationship in Chile is equivalent to that in Brazil. There is much to do in terms of institutional reforms, of course, and the next constituent process could be a suitable venue for that. This book aims to highlight how courts have had a role in the slow deterioration of Brazilian constitutionalism, especially during the post-1988 period. One of the critical points relies on the fact that courts have been partially unsuccessful in strengthening the rule of law and the democratic backbone of the 1988 constitutionalism. Even with crucial contributions to 1988 Brazilian constitutionalism, some contradictions must be observed. The restricted role of courts for strengthening constitutionalism in Brazil goes back to the

11 L Ayala, ‘María Luisa Brahm, Presidenta del TC: “Antes de que yo llegara había causas detenidas en el TC por mucho tiempo, al límite de la corrupción”’, La Tercera, 18 April 2020, www.latercera.com/la-tercera-domingo/noticia/maria-luisa-brahm-presidenta-del-tc-antes-deque-yo-llegara-habia-causas-detenidas-en-el-tc-por-mucho-tiempo-al-limite-de-la-corrupcion/ WCLGYHFHTVF7FF2GSNDT36TB3Y. 12 See Chile, Case 4180-17-INA, Constitutional Tribunal, judgment 17.1.18. See Collins et al (n 9) 24. 13 The Death Caravan was a military group ordered by Augusto Pinochet and led by Sergio Arellano Stark to kill leftist political opponents who had supported President Salvador Allende. It moved from the south to the north of Chile, leaving at least 72 people dead. Telesur, ‘La Caravana de la Muerte que Recorrió Chile Hace 44 Años’, Telesur.tv, www.telesurtv.net/news/ La-Caravana-de-la-muerte-que-recorrio-Chile-hace-43-anos-20160929-0026.html. J Charleaux, ‘Mea Culpa e Punição: O Caso de um General da Ditadura Chilena’, Nexo, www.nexojornal. com.br/expresso/2019/02/14/Mea-culpa-e-punição-o-caso-de-um-general-da-ditadura-chilena. Cheyre’s conviction for the Death Caravan episode can be found at: Chile, Rol nº 2182-1998 Episodio Caravan de la Muerte “A”, La Serena, Corte de Apelaciones de Santiago, www.pjud.cl/ documents/396729/0/CARAVANA+DE+LA+MUERTE+EPISODIO+LA+SERENA.pdf/34927d8 5-5154-4f9f-a8ec-3b3544faf0e1. 14 For a view that constitutional courts can act as mediators on the relationship between military and civilian authorities, see J Ríos-Figueroa, Constitutional Courts as Mediators: Armed Conflict, Civil–Military Relations, and the Rule of Law in Latin America (Cambridge, Cambridge University Press, 2016).

28  Transitional Constitutionalism dictatorship and the transition it entailed. It is vital to understand how this has happened. Chapter one will recollect some of the main points of the juridical configuration of the 1964–1985 dictatorship. The issue of amnesty acted as a catalyst to the transitional process, as this chapter will consider. And, of course, the Federal Supreme Court ruling on the ADPF 153 demands reflection, as does the contrasting decisions of the IACtHR. From the perspective of Brazilian prosecutors, there was a breach to the 1988 Constitution in the dominant judicial view on amnesty for crimes against humanity. Chapter one will end at the military’s return to politics, a matter to be resumed in chapter five. I.  THE BRAZILIAN DICTATORSHIP OF 1964–1985 JURIDICAL APPARATUS

It is not the aim of this chapter to take the place of historians who have been examining the different aspects of the Brazilian dictatorship of 1964–1985. Our main starting point, however, is the traditional coup or authoritarian collapse which happened in the early hours of 1 April 1964 (a date some military preferred to remember as 31 March 1964, as 1 April is also April Fool’s Day in Brazil).15 Consider how current key political actors in Brazil consider the events of this day. Before Jair Bolsonaro’s inauguration, the Federal Supreme Court’s Chief Justice Dias Toffoli publicly declared that ‘today, I do not refer either to a coup or a revolution. I refer to the movement of 1964’.16 He criticised those both on the left and the right who, before 1964, had refused to assume their responsibilities, which led to the ‘movement’ that would charge the military. Toffoli’s statement was widely criticised. However, this discourse pleased Bolsonaro’s most radical voters and fuelled the debate which resulted in President Bolsonaro’s victory. Each year, the Military Club, a private association of former members of the armed forces, founded in 1887, holds lunch parties to celebrate 1964. On 31 March 2020, they invited people to participate in a commemoration of ‘56 years of the democratic revolution’. Throughout the 1970s, the date was publicly celebrated as being the anniversary of the so-called revolution. In the 1980s, the commemorations started to happen inside the barracks. They became more restricted during the 1990s and especially during the 2000s. The pressure from the families of the disappeared and political opponents of the dictatorship seems to have been a fundamental reason for limiting these celebrations. In 2011, the date was deleted from a list on the Army’s website and a lecture

15 T Ginsburg and A Huq, How to Save a Constitutional Democracy (Chicago, University of Chicago Press, 2018) 47. 16 G Pessoa, ‘Toffoli diz que hoje prefere chamar golpe militar de “movimento de 1964”’, Folha de S Paulo, 1 October 2018, www1.folha.uol.com.br/poder/2018/10/toffoli-diz-que-hoje-preferechamar-ditadura-militar-de-movimento-de-1964.shtml.

The Brazilian Dictatorship of 1964–1985 Juridical Apparatus  29 by General Augusto Heleno (who would become Bolsonaro’s Institutional Security Cabinet Minister) about the alleged ‘revolution’ was suspended by Minister of Defence Nelson Jobim.17 On 31 March 2020, by order of President Bolsonaro, it was announced that the date should be celebrated. There was an order establishing a daily schedule set by the Ministry of Defence which stated that the 31 March 1964 was a ‘landmark for democracy’. The order was signed by Minister of Defence, Fernando Azevedo e Silva and the commanders of the armed forces. A lawsuit was filed against the Ministry of Defence’s order. A first-degree federal judge and the 5th Regional Appellate Court (Tribunal Regional Federal da 5ª Região) suspended the order on the basis that it was against the democratic values of the 1988 Constitution. The office of the Solicitor General of the Union (Advocacia-Geral da União, AGU) then filed another lawsuit in the Federal Supreme Court and Chief Justice Dias Toffoli ruled on it. The Court was criticised by Bolsonaro, who accused it of repeatedly acting against him, especially in a case that suspended the nomination of the Director of the Federal Police after the resignation of his Minister of Justice and Public Security (hereafter Minister of Justice), Sérgio Moro.18 During the COVID-19 crisis, Chief Justice Toffoli reviewed the judicial rulings on the military manifestations, alleging that they made an analysis of internal affairs of the Ministry of Defence. According to Justice Dias Toffoli, the rulings were an act of censorship against the Minister of Defence and the commanders of the armed forces, and represented an invasion by the judiciary into matters of state.19 After 30 years of the transition to democracy, numerous books have been written to understand the dictatorship of 1964–1985 and hundreds of investigations have been undertaken by truth commissions. The Chief Justice of the Federal Supreme Court used the discourse against judicialisation of politics to make official the position of a government that is aimed at rewriting history. The ruling shows there is an ongoing process on how to read and interpret Brazil’s institutional past, and, also, to understand the present and the future. The 1964 coup was, right from the start, accompanied by a juridical discourse. It occurred when the 1946 Constitution was in force. The period between 1946 (right after the Vargas dictatorship of 1937–1945) and 1964 was extremely turbulent, with several attempted military coups (before and during President Juscelino Kubitschek’s term, from 1956–1961) and the resistance from the armed forces in accepting, after President Jânio Quadros resigned (1961), 17 B Libório, ‘De 1964 aos dias atuais: nos reservados círculos militares, o golpe nunca deixou de ser comemorado’, Época, 27 March 2019, epoca.globo.com/de-1964-aos-dias-atuais-nos-reservadoscirculos-militares-golpe-nunca-deixou-de-ser-comemorado-23555401. 18 T Phillips, ‘Jair Bolsonaro faces inquiry into claims of meddling with police’, The Guardian, 28 April 2020, www.theguardian.com/world/2020/apr/28/jair-bolsonaro-faces-inquiry-into-claimsof-meddling-with-police. 19 Federal Supreme Court, SL 1.326, judgment of 4 May 2020, www.stf.jus.br/arquivo/cms/ noticia­PresidenciaStf/anexo/SL1326.pdf.

30  Transitional Constitutionalism that João Goulart could take office. Seen as a representative of a non-acceptable political left-wing, Goulart could only become president with the enactment of the Constitutional Amendment 4 of 1961 and the transformation of the political regime into a parliamentary one. The constitutional amendment was approved without the observation of several legislative procedural rules. It is curious that, in the 1950s, a debate on systems of government was permeated by the idea that the parliamentary system was superior to the presidential one, especially considering the corrupted form of this last regime during the years of the so-called old republic (República Velha, 1891–1930). A speech in the constituent assembly that led to the 1946 Constitution argued the Vargas’ dictatorship was the peak of a reaction against the corruption of the presidential system.20 This kind of discourse would not disappear quickly throughout Brazilian constitutional history. The approval of the Constitutional Amendment 4 of 1961 was, by itself, a kind of ‘juridical coup’. Beyond the procedural stumbling and hurrying with which the constitutional amendment was approved, it violated the mandate granted by popular vote to Vice-President João Goulart to take office in the case of the resignation of the incumbent president.21 In other words, and to adopt Richard Albert’s criteria on constitutional dismemberment, Constitutional Amendment 4 of 1961 transformed the 1946 Constitution: it had the aim of remaking the core of the constitution and cannot be seen as a mere constitutional amendment.22 The argument in defence of the constitutional amendment pointed to a communist threat to the nation, its unity and national security. This argument became more evident when the movement that opposed the constitutional amendment used the epithet ‘campaign of legality’.23 Soon, a plebiscite defied these unconstitutional changes to the 1946 Constitution. In an evident backlash against the reform, over 80 per cent of citizens supported the return of the presidential system. Constitutional Amendment 4 of 1961 was repealed by Constitutional Amendment 6 of 1963.24 The popular approval for President João Goulart was not enough as he made mistakes and over-estimated his support among the top-ranking military. He also defied military hierarchy by attending meetings with low-ranking soldiers. Nonetheless, the

20 C Paixão and L Barbosa, ‘Crise Política e Sistemas de Governo: Origens da “Solução Parlamentarista” para a Crise Político-Constitucional de 1961’ (2013) 24 Universitas Jus 49. 21 1946 Brazilian Constitution: ‘Article 79 – The vice-president of the republic substitute, in the case of impediment, and succeed, in the case of vacancy, the president.’ 22 R Albert, Constitutional Amendments: Making, Breaking, And Changing Constitutions (Oxford, Oxford University Press, 2019) 78. 23 C Paixão, ‘Autonomia, Democracia e Poder Constituinte: Disputas Conceituais na Experiência Constitucional Brasileira (1964–2014)’ (2014) 43 Quaderni Fiorentini: Per La Storia del Pensiero Giuridico Moderno 427. 24 Although in a Portuguese version, constitutional amendments in Brazil prior to the 1988 Constitution can be consulted at: www.planalto.gov.br/ccivil_03/constituicao/Emendas/Emc_ anterior1988/_EMCs_CF1967.htm. Constitutional amendments to the 1988 Constitution are accessible at: www.planalto.gov.br/ccivil_03/constituicao/Emendas/Emc/quadro_emc.htm.

The Brazilian Dictatorship of 1964–1985 Juridical Apparatus  31 conservative movement was strong. They answered to a public rally in which Goulart presented his basic reforms (reformas de base) – social reforms to fight inequality, including fiscal, banking, agrarian, administrative and educational sectors – with a Family March with God for Freedom (Marcha da Família com Deus pela Liberdade). The Women for Democracy, the Feminine Civic Union and the Rural and Urban Brotherhood organised the rally and counted on the support of the Federation and the Centre for Industry of the State of São Paulo. The speaker of the Senate and the governor of the State of Guanabara (which used to host the city of Rio de Janeiro) attended the rally on 13 March 1964.25 This does not mean that the defenders of the presidential system (the so-called ‘campaign of legality’) were supporters of the 1946 Constitution. A famous politician at the time, Leonel Brizola (then governor of the state of Rio Grande do Sul), publicly declared that there should be a constituent assembly.26 However, during the night of 31 March and 1 April 1964, military troops, led by General Olímpio Mourão, left the city of Juiz de Fora for Rio de Janeiro, without facing any federal reaction. General Olímpio Mourão had been given the responsibility of writing a fake letter with a communist assault plan that led to the 1937 Vargas coup. President Goulart left Rio de Janeiro for the capital city of Brasília and then moved to Porto Alegre, aiming to stay safe in the state of Rio Grande do Sul. The Senate’s speaker, Auro de Moura Andrade, declared vacant the presidency of the republic. However, Goulart was still in Brazilian territory. The National Congress would finally nullify this legislative session in 2013.27 Ranieri Mazzilli, then Chamber of Deputies’ speaker, took office temporarily. On 2 April 1964, the Supreme Command of the Revolution was created (Comando Supremo da Revolução), chaired by the Army’s commander (selfsworn in General Costa e Silva, who was dictator from 1967 until 1969) and the heads of the Air Force and Navy. Right from the start, the new regime was concerned with granting the appearance of legality to something that was, crudely, a coup. That is the reason why it is not a complete novelty to misuse constitutional or juridical institutes in pursuit of a political objective.28 Paixão points out that the strong tradition of law schools (which has been depicted as a tradição bachaleresca, or bachelor’s tradition) may have contributed to this, reinforcing the normalisation of exceptional measures.29 A full explanation for the fact that an elected president had been removed had to be given. The Supreme Command of the Revolution asked

25 S Lamarão, ‘A Marcha da Família com Deus pela Liberdade’, FGV-CPDOC, cpdoc.fgv.br/ producao/dossies/Jango/artigos/AConjunturaRadicalizacao/A_marcha_da_familia_com_Deus. 26 Paixão, ‘Autonomia’ (2014) 428. 27 P Mendes and N Passarinho, ‘Congresso anula sessão que depôs João Goulart da Presidência em 1964’, G1, 21 November 2013, g1.globo.com/politica/noticia/2013/11/congresso-anula-sessao-quedepos-joao-goulart-da-presidencia-em-1964.html. 28 See the examples presented in A Sweet, ‘The Juridical Coup d’État and the Problem of Authority’ (2007) 8 German Law Journal 915. 29 Paixão (n 23) 429.

32  Transitional Constitutionalism for a well-known law scholar, Francisco Campos (a former minister under Vargas who wrote the authoritarian Constitution of 1937), to draft the preamble of the so-called Institutional Act (Ato Institucional).30 Institutional acts were a mix of juridical and de facto expressions of power. They were commonly issued along with complementary acts that specified their regulations. They did not appear in the 1946 Constitution, which provided for the entrenchment clauses of this constitution. However, they became the ‘normal’ way for the dictatorship to tell the Brazilian people in advance that significant juridical changes were about to happen. Francisco Campos’ preamble is a peculiar lesson on constitutional theory.31 He starts by using Federal Supreme Court Chief Justice Dias Toffoli’s term ‘movement’ but qualifying it as one that was civilian–military. This movement, however, was equal to a revolution supposedly representing the will of the nation. A revolution exercises a constituent power in its most radical and expressive fashion and its leaders, embodied by the armed forces, act on behalf of this exclusive prerogative of the people. The institutional act allowed for the work of the economic, financial, political and moral reconstruction of the nation. Campos explicitly recognised that constitutional processes had failed to dispossess a government that had tried to ‘bolshevise the country’. Contradictorily, the armed forces tried to show that they were not radicalising when they decided to retain the 1946 Constitution. Constitutional changes would only be necessary to allow the president to carry out the tasks necessary for ‘drain[ning] the communist boil’. ‘We’, the preamble also states, that is, the Supreme Command of the Revolution, also decided to maintain the National Congress. Illegal imprisonment, torture and extrajudicial killings started to happen right after 1964. The institutional acts, however, reformed the 1946 Constitution or blatantly created exceptions to it, following the desire of the armed forces. The presidential elections were changed for an indirect decision by the National Congress, an institution which had been seriously compromised due to the 10-year suspension of political rights that had impaired the representatives’ terms. Constitutional amendments proposed by the president would then be fast-tracked. Following the radicalisation of the dictatorship, Institutional Act 2 of 1966 declared that the revolution was a continuum and deepened its restrictive measures. It widely reformed the judiciary and suspended its guarantees; it extended the military jurisdiction to civilians who committed crimes against the national security or the military institutions; it cancelled the registration of the political parties, institutionalising a bi-partisan system. The most radical act, Institutional Act 5 of 1968, was wholly permeated by a national security logic. It allowed the president to suspend the National Congress and prohibited the granting of habeas corpus for accusations of political crimes and crimes 30 Francisco Campos will appear again in this book, especially in ch 5. 31 English translations of the Institutional Acts 1, 2 and 5 can be found at C Guerchon, ‘Institutional Acts of the Brazilian Government’ (1971) 1 International Journal of Politics 258–69.

The Brazilian Dictatorship of 1964–1985 Juridical Apparatus  33 against national security or the economic and social order. Incredibly, this was the institutional act President Jair Bolsonaro’s son, representative Eduardo Bolsonaro, considered resurrecting in 2019 if leftist movements adopted radical positions.32 The national security discourse permeated the whole period and was used as a justification for various policies. The number of changes promoted by the institutional acts (followed by what the military called the ‘complementary acts’) pressed the Government to adopt an entirely new constitution, the 1967 Constitution. The Institutional Act 4 of 1966 convened the National Congress to approve the project of a constitution written by the president, for which it nominated a commission of law scholars. The project presented by them, however, was not as authoritarian as the dictatorship wanted it to be. The Minister of Justice, Carlos Medeiros da Silva, was given the task of writing a new project that was supposed to be approved by the National Congress between 12 December 1966 and 24 January 1967. A commission in the National Congress would debate and approve the main project and then, representatives could present changes. Few of them came about and, on the last day of the allotted time, the constitution was enacted by a legislature dominated by the Government’s party. The procedure was designed to produce artificial legitimacy. However, it was felt that the 1967 Constitution was not sufficiently authoritarian. Institutional Act 5 of 1968 was enacted and Institutional Acts 13 and 14 allowed banishing or the death penalty for Brazilians who violated national security or promoted ‘adverse psychological war’. An even more centralist and authoritarian document was produced under Constitutional Amendment 1 of 1969, imposed by the junta which had taken office due to the health issues faced by President Costa e Silva. It was a constitutional amendment designed and ‘approved’ by the executive branch. It made changes to the structure of all three branches and severely restricted several fundamental rights.33 One traditional Brazilian scholar, however, saw the 1967 Constitution as one approved by a constitutional convention. In other words, it was not an imposed constitution. Constitutional Amendment 1 of 1969 was, indeed, a constitutional amendment, rather than a constitution in itself. Another constitution, in his words, could only be derived from Institutional Act 5 of 1968.34 As one can easily observe, legal scholars were necessary to change the regime in favour of political objectives. As the repressive methods deepened, constitutional and legal changes took place without completely side-lining the commitment of violations to the same legal structure and to international 32 E Meyer, T Bustamante and M Cattoni, ‘Threats to Brazilian Democracy Gain Traction’, Verfassungsblog, 7 November 2019, verfassungsblog.de/threats-to-brazilian-democracy-gain-traction. 33 C Souza Neto and D Sarmento, Direito Constitucional: Teoria, História e Métodos de Trabalho (Belo Horizonte, Fórum, 2012) 148. 34 M Ferreira Filho, O Poder Constituinte, 4th edn (São Paulo, Saraiva, 2005), 73. Ferreira Filho was a constitutional scholar from the University of São Paulo and was also the Vice-Governor between 1975 and 1979 and State Secretary of Administration (1982) and Justice (1982–1983).

34  Transitional Constitutionalism human rights norms. A strong apparatus was built deriving from the so-called Bandeirante Operation (Operação Bandeirante), a project of entrepreneurs and policymakers who had obtained the financial resources to deepen institutionalised torture and repression. The Bandeirante Operation was based on the presidential Guidance to the Politics of Internal Security (Diretriz para a Política de Segurança Interna). It coordinated, under the command of an Army officer, the work of the military police, the civilian police, inspectors and other public servants.35 Forty-six years later, the Brazilian National Truth Commission would show that there was civilian support for this well-known hierarchical structure. The apparatus resulted in at least 434 either dead or disappeared, 8,341 indigenous victims, 6,491 military officers being persecuted, 10,000 people forced into exile, 7,367 people being prosecuted by military tribunals, 130 being banished and 4,862 having their political rights suspended.36 It is not within the scope of this chapter to present a detailed description of the Brazilian dictatorship of 1964–1985. The aim is to highlight how the constitutional and juridical discourse was manipulated to provide legitimacy to the dictatorship – what Pereira called ‘authoritarian legality’.37 However, the dictatorship started to crumble due to economic failure and the recurring national and transnational denouncing of gross violations of human rights. A civil society claim, amnesty for political opponents, was also fundamental and influenced Brazilian transitional constitutionalism. II.  TRANSITIONAL JUSTICE PROCESSES SHAPING CONSTITUTIONALISM

In one of the canons of transitional justice theory, Ruti Teitel made the point that transitional constitutionalism acquired a transformative dimension that gave constitutions a mediating purpose between the past and the future.38 It went beyond serving traditional constitutionalism roles. What is remarkable for

35 E Gaspari, A Ditadura Escancarada (São Paulo, Companhia das Letras, 2002) 60. 36 E Meyer, ‘Criminal Responsibility in Brazilian Transitional Justice: A Constitutional Interpretative Process Under the Paradigm of International Human Rights Law’ (2017) 4 Indonesian Journal of International & Comparative Law 1, 49. The so-called DOI-CODIs (Destacamento de Operações e Informações – Centro de Operações e Defesa Interna or Department of Information Operations – Center for Internal Defence Operations) were one of the most important structures for political repression. In 2018, the researcher Matias Spektor found a memo, signed by CIA director William Colby, which contained evidence that dictator Ernesto Geisel allowed extrajudicial executions against political opponents to continue. The transcript of the document can be found at: history.state.gov/historicaldocuments/frus1969-76ve11p2/d99?platform=hootsuite. One must bear in mind that banishing was a penalty imposed to political opponents who supposedly could not return to the country. Forced exile took place in diverse cases in which the conditions for the opponent to stay in Brazil were so harsh that they need to leave the country – although without a regular decision made by the Government. 37 A Pereira, Political (In)Justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina (Pittsburgh, Pittsburgh University Press, 2005). 38 R Teitel, Transitional Justice (New York, Oxford University Press, 2000) 191.

Transitional Justice Processes Shaping Constitutionalism  35 constitutions in transitional periods is that they not only aim to perform present and future relations, but they also do it in response to the prior order. Assuming that constitutions act not only as limits or external barriers to political action at the moment of foundation, but that this very foundation is also the medium through which a permanent project is established, Teitel refers to a supposed Arendtian paradox in constitution-making. This is not a casual conclusion, however, especially considering the Habermasian idea that a constitutional democratic state has, as its core, not only the foundational moment but also the same constitution that internally connects democratic procedures. It is not necessary to read the foundational moment as defining a paradox if one takes into account that the trajectory opened by a constitution can confront mistakes and errors that fall in a ‘self-correcting learning process’.39 Teitel invokes John Rawls’ conception of political constructivism to add that changes in the constitutional order have an effect on the perspectives of the participants in a political community, also producing consequences for what kind of constitutional consensus is at play.40 ‘Transitionality’ is an adequate phenomenon to describe what has been happening with constitutions at the end of the twentieth century, as well as to understand the challenges posed in the 2010s, with authoritarian backsliding going global. These are fundamental ideas to analyse what happened with the Brazilian transition; as with any political movement, tensions and power struggles between political actors affect a transition. The Constitutional Amendment 11 of 1978, enacted at the end of Ernesto Geisel’s term (1974–1979), revoked all institutional and complementary acts. It was, in part, a move by the dictatorship to effect a project of a ‘slow and gradual distension’, a phrase that represented plans for a controlled transition. However, the constitutional amendment was also the result of a plurality of pressures that arose in movements within civil society, which slowly started to put pressure on the Government. One of these concerned the struggle for amnesty. The first challenge to which the dictatorship of 1964–1985 had to respond came from the Feminine Movement for Amnesty (Movimento Feminino pela Anistia) led, in Brazil, by Therezinha Zerbini. She was married to General Euryale Zerbini, a legalist military officer who had his political rights suspended for opposing the coup. Zerbini’s political campaign started in 1975. In 1978, the Brazilian Committee for Amnesty (Comitê Brasileiro pela Anistia), a civil society organisation which coordinated the various movements that had been happening across the country, was created.41 In the First National Conference on Amnesty (Congresso Nacional pela Anistia), a letter defined the campaign and stated that the amnesty should be wide, general and unrestricted. It could



39 J

Habermas, Time of Transitions (Cambridge, Polity, 2006) 304. Transitional Justice (2000) 196. 41 Comissão Nacional da Verdade, Relatório: Volume I (Brasília, CNV, 2014) 33. 40 Teitel,

36  Transitional Constitutionalism never be reciprocal in the sense of reaching both the opponents and the supporters of the dictatorship.42 An attempt to promote a reciprocal amnesty would be recognised years later by the Inter-American System of Human Rights as an auto-amnesty. In other words, an amnesty that would be invalid for being granted by the state to agents irrespective of the content of the acts and the people it benefited.43 The dictator at the time, President João Figueiredo (1979–1985), made every effort to control the legislative procedure which led to Brazilian Amnesty Law, Law 6.683 of 1979.44 A presidential bill which relied on the work of the Minister of Justice, Petrônio Portella, was introduced. Portella recalled previous amnesty acts in Brazil and observed that they had adopted the controversial term, ‘connected crimes’. Despite the political opposition and civil society groups struggle against an auto-amnesty, the dictatorial Government was successful in approving a project favouring a controlled transition. The Amnesty Law included the term ‘connected crimes’. The dictatorship wanted to grant amnesty to its agents without clearly recognising that they were criminals and restricted the reach of the amnesty by defining crimes that did not qualify, such as terrorism or kidnapping. The amnesty, in 1979, was not wide, general or unrestricted. Criminal accountability for the gross violations of human rights virtually disappeared, only to be debated again at the end of the 2000s. Abrão and Torelly present three political reasons and a legal one for this.45 The three political reasons are: (a) an authoritarian legacy caused by the transition by transformation (Huntington) which happened in Brazil; (b) the role of a conservative judiciary which coped with the legalisation of the dictatorship – a cause that will be explored in-depth in this book; and (c) the fragmentation of social movements that weakened the grounds for criminal liability. The legal reason is the Amnesty Law itself and its interpretation.

42 H Greco, Dimensões Fundacionais da Luta pela Anistia, PhD thesis (Belo Horizonte, UFMG, 2009) 59; E Meyer, Ditadura e Responsabilização: Elementos para uma Justiça de Transição no Brasil (Belo Horizonte, Arraes Editores, 2012) 103. 43 Inter-American Court of Human Rights, Caso Barrios Altos vs. Perú, judgment 14 March 2001, www.corteidh.or.cr/docs/casos/articulos/seriec_75_esp.pdf, 15. 44 One fact that involves João Figueiredo is related to the position of his father, General Euclides Figueiredo, a supporter of the constitutionalist insurrection of 1932 who was imprisoned after the 1937 Vargas dictatorship took power. After the fall of Vargas, Euclides Figueiredo became a federal representative and created a commission to investigate the crimes perpetrated against political opponents during the dictatorship of 1937–1945, a true transitional procedure. He even listened to the testimony of Carlos Marighella, a political opponent who had been imprisoned and tortured by the Vargas dictatorship and who would become the number one enemy of the dictatorship of 1964–1985 (JM Carvalho, Forças Armadas e Política no Brasil (São Paulo, Jorge Zahar Editor, 2006) 172). Marighella was killed by the 1964–1985 dictatorship’s repressive apparatus. His political life was depicted in the movie Marighella, directed by Wagner Moura (2019). 45 P Abrão and M Torelly, ‘Resistance to Change’ in Leigh Payne and Francesca Lessa (eds), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (Cambridge, Cambridge University Press, 2012) 170.

Transitional Justice Processes Shaping Constitutionalism  37 Throughout the 1980s, various movements pressed for democracy. Law 6.767 of 1979 partially revoked Law 5.682 of 1971, opening the way for the plurality of political parties. However, the dictatorship thought of it as a way to pulverise the political opposition and help to control the transition. A campaign for the return of direct elections for the Presidency strengthened social bonds. Again, the dictatorial Government was more robust in the National Congress and the bill (the constitutional amendment Dante de Oliveira, named after its proponent) which would allow for direct participation was not successful. Still, the power of the military seemed to dissolve. In the indirect elections that happened in 1985, Tancredo Neves, running for the former dictatorship’s oppositional party, the PMDB (Partido do Movimento Democrático Brasileiro, Party of the Brazilian Democratic Movement), won against Paulo Maluf, representing the supporters of the regime. Tancredo Neves, however, was ill, suffering from what was, at the time, stated as diverticulitis. The elected Vice-President, José Sarney, a former ARENA (Aliança Renovadora Nacional, National Reformer Alliance, the dictatorial Government party) member, took office, becoming the first civilian president after 21 years of dictatorship on 15 March 1985. Neves died on 21 April 1985. To understand the main factors that forged the Brazilian transition, one should not set aside the fact that the disputes over the ways Brazil should move to democracy involved diverse actors (elites, the military, the three branches of power, civil society, organised movements and so on). Additionally, an historical reading of what happened would remain constantly under dispute. There is, yes, much of a transition that resulted from the efforts by the military to control the country and, to some extent, they were able to achieve favourable results. However, it is imperative to highlight how democratic forces, on different positions of the political spectrum, contributed to the landmark of the 1988 Constitution constituent process. Taking this into account, it will be possible to evaluate the successes and failures of the democratic project in the decades to come. That is why there is room to interpret the continuing defeat of civil society’s claims (the extent of the amnesty; the direct election for the Presidency) as being channelled towards one of the most democratic procedures that took place in Brazil: the Constituent Assembly of 1987–1988.46 Although some incipient movements happened before, 1987 was a crucial period for reconciling different institutions within the constituent assembly chain, such as the Federal Bar Association and the National Conference of the Brazilian Bishops (Conferência Nacional dos Bispos do Brasil, CNBB). However, President José Sarney, was not an enthusiast proponent of an open process for a new constitution. He sent to the National Congress a bill that would transform it into a constituent assembly and nominated a ‘Commission of Intellectuals’ charged with creating the first 46 L Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 (Câmara dos Deputados, Edições Câmara, 2016) 355.

38  Transitional Constitutionalism draft. Sarney was then criticised both for accepting senators that would not have been elected for that function and for dictating the way the assembly should happen. Such a model was supposedly created after the military regime with the objective of avoiding the situation where the new body admitted responsibility for gross violations of human rights.47 President Sarney ultimately rejected the project written by the commission he had nominated which had proposed a text aimed at creating a parliamentary system. The bill presented by President Sarney transformed the National Congress into a constituent legislature, in the classification referred by Ginsburg, Elkins and Blount,48 through Constitutional Amendment 26 of 1985 to the 1967 Constitution. The amnesty subject was not side-lined. Right after the three articles that widely ruled on the creation of the constituent legislature, amnesty was recovered in the Constitutional Amendment 26 of 1985. The central idea was, as in the Amnesty Law of 1979, to use amnesty as a way of allowing political opponents of the dictatorship to return to their everyday lives – from exile, prison and other forms of political exclusion. It was, in fact, a broader amnesty. Constitutional Amendment 26 of 1985, following the transition’s modifications, changed the way the Amnesty Law of 1979 was conceived. This was an amendment for a simple hierarchy norm: a constitutional provision which should, of course, prevail over a statute. Article 4 of the Constitutional Amendment 26 of 1985 even has a normative structure.49 The provision is way beyond diverse if compared with the Amnesty Law of 1979. First, it states that it is directed at granting amnesty only to those civilian and military public servants who were punished by means of exception acts, whether institutional or complementary. In other words, the already mentioned institutional acts and their specifications in complementary acts that aimed at legalising the dictatorship and served as a basis for political persecution should be a reference for the new standard of amnesty. Second, in a subordinated provision, it grants amnesty to those who committed political or connected crimes. One can see that there was, in 1986, enough space to understand that only those affected by the institutional or complementary acts could be granted amnesty. In other words, any civilian or military public servant or other person who had not been affected by the acts of exception of the dictatorship could not be considered. Third, another provision emphasises that the amnesty would apply to those who were prosecuted or punished for criminal deeds committed between 2 September 1961 and 15 August 1979. Fourth, the provisions on amnesty regulate, in detail, how the public administration would deal with the requisitions of those granted amnesty. If any pre-commitment to

47 Souza Neto and Sarmento, Direito Constitucional (2012) 157. 48 T Ginsburg, Z Elkins and J Blount, ‘Does the Process of Constitution-Making Matter?’ (2009) 5 Annual Review of Law and Social Science 212. 49 The Portuguese version of the Constitutional Amendment 26 of 1985 can be found at: www. planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc_anterior1988/emc26-85.htm.

Transitional Justice Processes Shaping Constitutionalism  39 the constituent power was established here, it was not to limit the constituent assembly on how to regulate the amnesty in the transitional period. The constituent assembly took place between 1 February 1987 and 4 October 1988. Although the Sarney Government – and the military – tried to control the constituent process, they were not successful. Struggles for democratisation which partially failed in 1979 and throughout the 1980s were profoundly deepened in the constituent process of 1987–1988.50 There were 559 constituent representatives from 13 political parties. The major political party was the PMDB, a sign of its decisive role in diverse moments of the 1988 Constitution’s political history.51 Denying all external impositions of assembly models, the representatives agreed that they should build the text of the new constitution. Twenty-four thematic sub-committees were created to deliver texts to eight thematic committees (each one embracing three subcommittees). In turn, the texts would be reduced and provided to one systematisation committee to write one final text to be voted on by the plenary in two rounds. The body observed the proportionality of representation of the political parties. The sub-committees organised between five and eight public hearings and some of them travelled to specific regions of the country.52 The involvement of unions, intellectuals, representatives from feminist, black, environmental protection, indigenous groups was high, and the sub-committees received 11,989 suggestions. The work of the eight thematic committees was also disputed, with 14,911 changes to texts. During the work of the systematisation committee, 122  popular amendments were presented, which gathered 12,277,323 signatures.53 Eighty-three were accepted. If they were not explicitly included in the final version of the constitution, they surely influenced it, alongside other initiatives from civil society. The first draft written and voted on by the systematisation committee was widely criticised, especially because of how it organised the armed forces and regulated amnesty. After public criticism between the Minister of the Army General 50 ‘The Brazilian constitutional convention was characterised by extraordinary public involvement, including the submission of citizen proposals, the result of which was one of the longest constitutions in the world. The Brazilian charter is an unwieldy document to be sure, but a highly public one in its origin and provisions. Already, it has endured significantly longer than has the typical Latin American constitution’ (Z Elkins, T Ginsburg and J Melton, The Endurance of National Constitutions (Cambridge, Cambridge University Press, 2009) 79). Although important scholars (see L Barroso, Curso de Direito Constitucional Contemporâneo: Os Conceitos Fundamentais e a Construção Do Novo Modelo (São Paulo, Saraiva, 2015) 440) argue that the length of the 1988 Constitution is one of the main reasons for the judicialisation of politics in Brazil, and one could describe this constitution as ‘unwieldy’, this work will both refute that the dependence on the judiciary is not a necessary consequence of its detailed text and show that the 1988 Constitution has an identifiable backbone. 51 M Nobre, Imobilismo em Movimento: da Abertura Democrática ao Governo Dilma (São Paulo, Companhia das Letras, 2013). 52 Souza Neto and Sarmento (n 33) 163. 53 One of the most interesting manifestations in the defence of popular amendments in the constituent process was made by the representative of the Union of Indigenous Peoples, Ailton Krenak, and can be seen at: www.youtube.com/watch?v=TYICwl6HAKQ.

40  Transitional Constitutionalism Leônidas Gonçalves and the president of the Constituent Assembly, representative Ulysses Guimarães, a new draft reviewed limitations to the powers of the armed forces. In the following, authors of popular amendments voiced their claims in the Chamber of Deputies. The second draft was criticised by the centrist representatives, who had a much more conservative approach. They were able to change the rules of the constituent process, leading to the possibility of significant amendments to the systematisation committee’s draft. Political consensus was critical – the centrist representatives did not have the numbers to decisively sideline the progressives. After President José Sarney used TV and radio to state that the draft would make the country ungovernable, Guimarães answered, describing it as the ‘citizen constitution’ (Constituição Cidadã). The assembly voted on the final proposal on 22 September 1988 and the constitution was finally enacted on 5 October 1988. The debate surrounding amnesty in the constituent assembly started in the sub-committee on political and collective rights and guarantees, as a result of a proposal from representative Lysaneas Maciel.54 This was mainly a reparations proposal, defining the responsibility of the state for violations committed against the dictatorship’s oppositional military and civilians. There was a notable controversy on the subject of the military officers who had been suspended by the dictatorship. The debate continued in other sub-committees, with the armed forces trying to oversee it. The final proposal concentrated on reparations and did not mention accountability. Most of the PMDB representatives seemed to have forgotten the party’s past struggle for amnesty and tried to conciliate with the military. A few representatives, such as Haroldo Lima (from the communist party, Partido Comunista do Brasil, PCdoB), demanded justice for gross violations of human rights. The final textual provisions on amnesty became Article  8 of the Transitory Constitutional Provisions Act (Ato das Disposições Constitucionais Transitórias, ADCT) which had a strong reparations tone.55 The provision follows Constitutional Amendment 26 of 1985 by stating that only those who were affected by the institutional and complementary acts could be granted amnesty. But, more than that, there was no mention of the term ‘connected crimes’. III.  AMNESTY AND THE FEDERAL SUPREME COURT

These were the reasons why historiographic studies and constitutionalist approaches claim that the Brazilian transition, and the 1988 Constitution created by it, enshrined a democratic form of constitutionalism. Benvindo, criticising 54 M Souza and N Sandes, ‘Entre Silêncios e Ruídos: A Anistia na Assembleia Constituinte de 1987/88’ (2018) 24 Anos 90 121. 55 The text in Portuguese can be found at: www.planalto.gov.br/ccivil_03/constituicao/constituicao. htm#adct.

Amnesty and the Federal Supreme Court   41 the elite-led vision of the constituent process presented by Hagopian and Mainwaring,56 highlights the impact of what he calls the ‘forgotten people’ had on intended conciliations and pacts from above and defined the results of the constitutional assembly. Concessions and authoritarian hurdles stood in tension with the rupture the 1988 Constitution promoted. Political institutions gained in inclusiveness and the transition became uncontrolled, due to the break of dammed democratic desires.57 In the words of the Brazilian scholar Marcelo Cattoni, Brazil faced a ‘process of constitutionalisation’ that was non-linear and subject to failure and interruption.58 Looking at the design of the 1988 Brazilian Constitution, one can see that it textually embraced a paradigm of respect for democracy and human rights. At the outset, the creation of a federative form of state was bonded to the inception of a constitutional democratic state (Estado democrático de direito), regulating, as a principle, the way the transition should be read. There is no consensus on the best translation for the term Estado democrático de direito. Some use the direct translation, ‘democratic state of law’, and others, ‘constitutional democratic state’. The problem with the term ‘democratic state of law’ is that it does not denote the connection between the rule of law and democratic procedures that is implied in the concept.59 Right at the time of the 1988 Constitution’s enactment, an influential scholar on the works of the constituent assembly, José Afonso da Silva, mainly based on the work of the Spanish scholar Elías Díaz, characterised the constitutional democratic state as a conception of the insertion of the people into both the processes of decision-making and access to income.60 Silva also made the point that the Portuguese Constitution of 1976 and the Spanish Constitution of 1978 would be the main influences on the adoption

56 F Hagopian and S Mainwaring, ‘Democracy in Brazil: Problems and Prospects’ (1987) 4 World Policy Journal 485, 487. 57 ‘In fact, that Constituent Assembly could only understand itself as a rupture with that past, notwithstanding the remaining elites’ privileges and some authoritarian practices in many aspects’ (J Benvindo, ‘The Forgotten People in Brazilian Constitutionalism: Revisiting Behavior Strategic Analyses of Regime Transitions’ (2017) 15 International Journal of Constitutional Law 355). 58 M Cattoni, ‘Democracia Sem Espera e Processo de Constitucionalização: Uma Crítica Aos Discursos Oficiais Sobre a Chamada “Transição Política Brasileira”’ (2010) 3 Revista Anistia Política e Justiça de Transição 208. 59 A simple search in The Constitute Project shows that the term ‘democratic state of law’ appears in the 1988 Brazilian Constitution (Article 1), the 2015 Dominican Republic Constitution (Article, also with the qualification ‘social’), the 1991 Equatorial Guinea Constitution (Article 14) and the 2011 Morocco Constitution (preamble). The 1976 Portuguese Constitution provides for a ‘democratic state based on the rule of law’ (Article 2) and for a ‘democratic rule of law’ (Article 3(2)). The 1978 Spanish Constitution uses the phrase ‘social and democratic State, subject to the rule of law’ (Article 1). There is also the use of the phrase ‘democratic rule of law’ in the 2010 Angola Constitution (Article  174(2)), the 1984 Guinea-Bissau Constitution (Article  21(1)), the 2011 Hungary Constitution (Article B (1)), the 2004 Mozambique Constitution (preamble), the 1993 Peru Constitution (Article 3) and the 1975 Sao Tome and Principe Constitution (Articles 6(1), (7)). 60 J Afonso da Silva, ‘Estado Democrático de Direito’ (1988) 173 Revista de Direito Administrativo 21. Afonso da Silva already observed the different terminology of the 1976 Portuguese Constitution.

42  Transitional Constitutionalism of the principle of the constitutional democratic state in Brazil. A few years after 1988, the publication of Faktizität und Geltung by Jürgen Habermas and his incorporation of a paradigmatic reading of contemporary political power also affected the academic and juridical interpretations of the constitutional democratic state.61 But that is not the only normative concept that would define Brazilian constitutionalism. Article 1 of the 1988 Constitution also enshrined several principles necessary for the history of constitutionalism in the twentieth century: human dignity, social values of labour and free enterprise and political pluralism. The 1988 Constitution guides Brazil in international relations by the prevalence of human rights. A system to allow for the constitutional transition from dictatorship to democracy was added, the Transitory Constitutional Provisions Act (Ato das Disposições Constitucionais Transitórias, ADCT). It embraces two important norms that can guide the reading of Brazilian transitional constitutionalism. The ADCT provides for the participation of Brazil in the creation of an international human rights tribunal. Article 8 of the ADCT, as already mentioned, changes the landscape of the Brazilian transition compared to the Amnesty Law of 1979. The constitutional structure that was built in 1988 seemed to be stable. Even with the 1992 impeachment of President Collor, which could be criticised for its fragile basis, institutions seemed to respond well to tests. The chapters to come will show that, from 2016 onwards, endogenous and exogenous stresses on institutions increased. Brazilian constitutional erosion, in this sense, must also be analysed through the lens of time; in other words, a constitutional continuum. Focusing on the transitional issue, one can see that the armed forces seemed to maintain their power and tried to provide quick answers in the aftermath of the constituent assembly. Successful pressure from the armed forces to avoid significant transitional justice measures marked the first governments of José Sarney (1985–1990) and Fernando Collor (1990–1992). During Sarney’s term, the National Service on Information (Serviço Nacional de Informações, SNI), an intelligence organ created right after the 1964 coup and which intruded upon the lives of an uncountable number of Brazilians, was maintained until the very end of his Government. This body searched his political party and the opposition, including the former dictatorship’s political opponent, Dilma Rousseff.62 61 J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996). Such influence appears specially in the works of M Cattoni, Poder Constituinte e Patriotismo Constitucional (Belo Horizonte, Mandamentos, 2006) and M Carvalho Neto, ‘Racionalização Do Ordenamento Jurídico e Democracia’ (2001) 88 Revista Brasileira de Estudos Políticos 81, to mention just a few. 62 The SNI reported the fierce debate in the Constitutional Assembly on the duration of Sarney’s term (Câmara dos Deputados, ‘Duração de Mandato de Sarney foi Tema de Relatórios’, Câmara dos Deputados, 20 September 2013, www.camara.leg.br/noticias/415499-duracao-do-mandatode-sarney-foi-tema-de-relatorios). See, for Rousseff’s searches, R Valente, ‘Dilma foi Monitorada pelo SNI Durante Governo Sarney’, Folha de S Paulo, 21 June 2012, www1.folha.uol.com.br/fsp/ poder/50028-dilma-foi-monitorada-pelo-sni-durante-governo-sarney.shtml.

Amnesty and the Federal Supreme Court   43 Brazilian historian José Murilo de Carvalho argued that the necessary civilian control of the military confronted two hurdles created by civilian omission. Firstly, there was an absolute lack of academic investigations of military subjects, with only a few strategic studies in the 1990s. Secondly, except for the imperial period (1822–1889), there was a general acceptance of military interference in politics reflected in the repeated expression in several constitutions that the armed forces protected the constitutional powers ‘under the limits of the law’ (nos limites da lei). The phrase was interpreted by military officers that, beyond the limits of the law, they could act freely (see chapter six). More than that, the ‘new republic’ – the period that started with the 1988 Constitution – did not count on significant institutional reforms led by civilians against the strong information apparatus built into the dictatorship.63 Fernando Henrique Cardoso’s terms (1995–2002) counted on more obvious challenges to the dictatorship’s legacies. In 1995, Law 9.140 created the CEMDP. The statute recognised as dead people who had been disappeared because of political activities (or involvement with them) in the period between 2 September 1961 and 5 October 1988 (the date of enactment of the 1988 Constitution). The commission has investigative and reparatory powers. It counted, by law, on representatives of the Ministry of Defence, which showed military interference in the commission. The commission only had a limited budget, especially when it came to analysing the mass grave found at the Perus Cemetery in São Paulo, in 1990. President Jair Bolsonaro changed the members of the commission, whose regulations were also modified to restrict its aims and to link its work to family requisitions. Its former president, a federal prosecutor, concluded that the work of the commission had practically come to a close.64 It was at the end of the term of Fernando Henrique Cardoso that the Amnesty Commission, a reparations programme based on Article 8 of the Constitutional Transitory Provisions Act of the 1988 Constitution, was created by a provisional measure, transformed into Law 10.559 of 2002. However, it was during Luís Inácio Lula da Silva’s term (2003–2010) that transitional justice measures flourished. The reparations axis served to create a model for Latin American countries. From 2008 onwards, the Amnesty Commission made wholesale transitional justice efforts to widen the scope of the organ. Beyond the economic reparatory system that the commission could offer through administrative procedures presented by victims, political opponents and their families for the violations they suffered due to institutional and complementary acts, the commission also addressed symbolic, educational and accountability measures. It created, for instance, the so-called amnesty caravans (caravanas da anistia),

63 Carvalho, Forças Armadas (2006)147. 64 M Leitão, ‘Governo altera regimento interno da Comissão de Mortos e desaparecidos; para ex-presidente do órgão, é o “fim das atividades”’, G1, 16 January 2020, g1.globo.com/politica/ blog/matheus-leitao/post/2020/01/16/governo-altera-regimento-interno-da-comissao-de-mortos-edesaparecidos-para-ex-presidente-do-orgao-e-o-fim-das-atividades.ghtml.

44  Transitional Constitutionalism where the hearings of the administrative requirements took place in the cities where the political opponents used to live. The policies allowed local communities to interact with the experience of those people who suffered from the dictatorship’s crimes. In the field of criminal accountability, in 2008, the Amnesty Commission promoted a public hearing with the cooperation of the Federal Bar Association. The Federal Bar Association decided to file ADPF 153 in the Federal Supreme Court. As already mentioned, the idea was that, through this form of concentrated constitutional review, the Court could, with binding effects for the whole judiciary, interpret that the Amnesty Law of 1979 did not grant amnesty to public agents who committed gross violations of human rights during the 1964–1995 dictatorship. The Federal Supreme Court rejected the claim.65 The rapporteur Justice Eros Grau used the campaign motto for the 1979 amnesty, ‘wide, general and unrestricted’, as if it included a bilateral or auto-amnesty for those who had acted on behalf of the dictatorship. Curiously, Eros Grau had been a political opponent in his student days and had been arrested and tortured in 1972.66 Other opinions of the Court in the ADPF 153 trial deserve mention. Justice Gilmar Mendes sustained that the Constitutional Amendment 26 of 1985, by using the phrase ‘connected crimes’, established a pre-commitment that could not be untied by the constituent power. Constitutional Amendment 26 of 1985 would be a political act that broke with the 1967 Constitution to create the basis for a new constitutional order. Quoting a varied German constitutional law literature (Carl Schmitt, Konrad Hesse, Otto-Brun Bryde), he concluded that his reading of a constitutional amendment to the previous autocratic constitution was the immutable basis of the 1988 Constitution. Several opinions relied on historical arguments presented by influential law scholars at the end of 1970s and the beginning of the 1980s, stating that the amnesty was truly bilateral or reciprocal. Justice Celso de Mello argued that, although the IACtHR had a solid case law against auto-amnesty domestic norms, Brazil’s situation was different. Its law had created a two-way amnesty. If, on the one hand, the reason is with Daly when he argues that the Federal Supreme Court has a fluctuating posture on the use of external case law,67 on the other hand, it is more accurate to state that the reference to the IACtHR rulings is selective and strategic. In ADPF 153, Justice Mello’s opinion tried to cover all the case law on amnesty acts of the IACtHR, but it ended up distorting it. Two landmark cases in the post-1988 context relied on the Inter-American 65 Federal Supreme Court, ADPF 153, judgment of 29 April 2010, redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=AC&docID=612960. 66 R Arruda, ‘Eros Grau, ex-ministro do Supremo, lança livro sobre o militante Armênio Guedes’, Valor Econômico, 14 November 2019, valor.globo.com/eu-e/noticia/2019/11/14/eros-grau-ex-ministrodo-supremo-lanca-livro-sobre-o-militante-armenio-guedes.ghtml. 67 T Daly, The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge, Cambridge University Press 2017) 213.

The 1964–1985 Dictatorship on Trial  45 System of Human Rights to extend the protection of fundamental rights. Firstly, in one decision quoted by Daly, the Federal Supreme Court struck down the possibility of the civil imprisonment of debtors relying on the American Convention of Human Rights.68 Secondly, the Federal Supreme Court held that the custody hearings, where those imprisoned must be taken in front of a judge within 24 hours, were based on rights provided for by the American Convention of Human Rights. The convention would have a supra-legal hierarchy in the Brazilian constitutional system.69 It remains a mystery how the democratic 1988 Constitution, so solidly based on the concept of human rights and including different textual provisions on amnesty, could tolerate an interpretation that allows for an auto-amnesty of crimes against humanity. Considering the democratic disruptions of 1987–1988, to read the amnesty in 2010 as if the 1988 Constitution did not play any role was to leave aside its normative force. Or, to be more pragmatic, it could be said that the Federal Supreme Court lacked the necessary responsibility to make the military accountable for their past deeds. The ruling was not only a deception for the victims, political opponents and their families, but it was used in a way to design politics in the years to come. Although Justice Dias Toffoli did not participate in the judgment, with his defence of the 1964 coup as a movement, he would probably agree with what the Federal Supreme Court did.70 IV.  THE 1964–1985 DICTATORSHIP ON TRIAL

At the height of the COVID-19 pandemic, President Jair Bolsonaro, following his continuing denial of the disease, received an elderly man of 85 years old at his cabinet.71 At least in the pictures that newspapers showed, neither of them were using masks. The man was Sebastião Curió, a retired Army colonel-lieutenant. Curió was one of the key military officers engaged in the combat against the so-called Araguaia Guerrilla War (Guerrilha do Araguaia). During the 1960s, a dissident faction of the Brazilian Communist Party (PCB, Partido Comunista

68 Federal Supreme Court, RE 466.343, judgment of 3 December 2008, http://redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=AC&docID=595444. The critical point in this ruling is that under Article  5, §  2º, the 1988 Constitution allowed that the American Convention of Human Rights gained the status of a constitutional norm. The Court, however, in face of Article 5, § 3º, created the notion that the conventions of human rights prior to 2004, when a special procedure was created to incorporate those norms at the level of constitutional amendments, had the status of infra-constitutional, but supra-statutory, norms. 69 Federal Supreme Court, ADI 5.240, judgment of 20 August 2015, http://redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=TP&docID=10167333. 70 P Anderson, Brazil Apart: 1964–2019 (London and New York, Verso, 2019) 304. 71 R Colleta, ‘Bolsonaro recebe no Planalto militar responsável por repressão à Guerrilha do Araguaia na ditadura’, Folha de S Paulo, 4 May 2020, www1.folha.uol.com.br/poder/2020/05/ bolsonaro-recebe-no-planalto-militar-responsavel-por-repressao-a-guerrilha-do-araguaiana-ditadura.shtml.

46  Transitional Constitutionalism Brasileiro) formed the Communist Party of Brazil (PCdoB, Partido Comunista do Brasil). The organisation argued that an armed movement was the only way to fight the dictatorship initiated in 1964. Groups were sent to the north region of the country, influenced by the Chinese concept of a prolonged popular war.72 In April 1972, the Army discovered the guerrillas, sending over nearly 7,200 soldiers to fight around 72 people in an area of over 30,000 square kilometres. Almost every fighter was killed and their corpses were disappeared. Only after 1978, did the end of censorship allow media outlets to debate the facts. The levels of violence used by the military were astonishing. There were reports of three guerrillas leaving a helicopter only to be shot dead with a submachine gun. The locally well-known guerrilla, Osvaldão, was killed and his body hanged from a helicopter so that the peasants could see he was not infallible. As with several others, the soldiers beheaded him.73 No guerrilla was put on trial. The order had been to kill them all. The families of the disappeared filed a civil lawsuit against the Federal Union in 1982. The procedure only received a final ruling in 2006. The families wanted their relatives to be recognised as disappeared, their remains returned, the circumstances of their deaths clarified and an official Army report presented about them. Throughout the previous ten years, means of execution of the judicial ruling were taken, especially by a working group of the CEMDP. The commission and the law that created it (Law 9.140 of 1995) recognised the Federal Union as being responsible for the deaths and disappearances. However, federal bodies continued to dispute the accountability of the state in these domestic procedures, as well as in international cases. Meanwhile, the families, backed by national and international organisations, filed a complaint in the Inter-American Commission of Human Rights (IACHR) in 1995. After assuring a due process of law, the IACHR decided to take the case to the Inter-American Court of Human Rights (IACtHR) in 2009. The IACtHR led a procedure that left no doubt about its democratic character: ample evidence was produced, several testimonies were heard, various amici curiae participated and the documents presented by the Brazilian state were analysed. In its ruling, the IACtHR relied on diverse precedents from its case law, as well as from other foreign and international courts, highlighting the physical, psychological and social damage produced by the crime of forced disappearances.74 Brazil had violated several rights provided for by the American Convention of Human Rights, such as the recognition of the legal subjects, the right to life, the right to personal integrity and personal freedom. Considering the Amnesty Law 72 J Teles, ‘Os segredos e os mitos sobre a Guerrilha do Araguaia (1972–1974)’ (2014) 18 História Unisinos 466. 73 Gaspari, A Ditadura Escancarada (2001) 406. 74 For instance, Inter-American Court of Human Rights, Case of Velásquez-Rodríguez v Honduras, judgment of 29 July 1988, www.corteidh.or.cr/docs/casos/articulos/seriec_04_ing.pdf; European Court of Human Rights, Case of Kurt v. Turkey, 15/1997/799/1002, judgment of 25 May 1998, hudoc.echr.coe.int/fre?i=001-58198.

The 1964–1985 Dictatorship on Trial  47 of 1979, the IACtHR recognised that it was, like other auto-amnesty laws in Latin America, incompatible with the American Convention of Human Rights, as repeatedly reaffirmed in the case law of that very Court. The way in which the Federal Supreme Court interpreted the Amnesty Law of 1979 violated Brazil’s international duty to investigate and punish gross violations of human rights. The Federal Supreme Court, in its ruling in the ADPF 153, should consider a conventionality control taking into account the IACtHR case law. Against the Brazilian domestic judgment, the IACtHR ordered that the forced disappearances that took place in the Araguaia region should be investigated, and that no statute of limitations could obstruct other cases involving gross violations of human rights that happened during the dictatorial period.75 As the next topic describes, a few things have changed in the Brazilian judiciary. The IACtHR, however, was aware of the judicial barriers to the effectiveness of the American Convention of Human Rights and, again, condemned Brazil. The second case related to the military dictatorship of 1964–1985 involved the journalist Vladimir Herzog. Herzog had a curious and tragic history. He was born in Osijek and was brought to Brazil by his parents (who repeatedly fled the scourges of the Second World War) in 1946. He was a member of the Brazilian Communist Party (Partido Comunista Brasileiro, PCB, also known as ‘partidão’). He became a successful journalist who, in the 1970s, was the Director of the Journalism Department of the Cultura TV, a São Paulo state television channel.76 Relying on the National Truth Commission report and Brazilian federal prosecutors’ documents, the IACtHR mentioned the existence of the so-called Operation Radar (Operação Radar), a plan of action of the repressive organs to imprison and kill members of the Brazilian Communist Party. After being notified at the premises of the Cultura TV by two repression agents, Herzog, on the 25 October 1975 morning, voluntarily presented himself at the premises of the DOI-CODI (Destacamento de Operações e Informações – Centro de Operações e Defesa Interna or Department of Information Operations – Centre for Internal Defence Operations).77 He was arrested, interrogated, tortured and strangled at age 38. The Army’s command tried to claim his death was a suicide.

75 Meyer, Ditadura e Responsabilização (2012) 293. 76 Inter-American Court of Human Rights, Caso Herzog e Outros v Brasil, judgment of 15 March 2018, www.corteidh.or.cr/docs/casos/articulos/seriec_353_por.pdf, 25. 77 The DOI-CODI of São Paulo was commanded, between 1970 and 1974, by Carlos Alberto Brilhante Ustra, one of the most infamous Brazilian torturers. He is one of the few agents of the dictatorship to be held accountable by the Brazilian judiciary in a civil lawsuit (B Pombo, ‘STJ confirma decisão que reconheceu Ustra como torturador’, Jota, 9 December 2014, www.jota. info/paywall?redirect_to=//www.jota.info/justica/stj-confirma-decisao-que-reconheceu-ustratorturador-09122014). During Dilma Rousseff’s impeachment process, Jair Bolsonaro dedicated his vote for allowing the procedure in the Chamber of Deputies to Ustra, and has recently, as president, praised the torturer (S Cowie, ‘Bolsonaro tells students to read book by dictatorshipera torturer’, The Guardian, 30 September 2019, www.theguardian.com/world/2019/sep/30/ bolsonaro-tells-students-to-read-book-by-dictatorship-era-torturer).

48  Transitional Constitutionalism This attracted severe criticism, allowing for the rise of the first civil society movements during the dictatorship era. After a military inquiry in 1978, his family was successful in obtaining a judicial ruling recognising the liability of the Federal Union for his death. A criminal investigation was unsuccessful in 1993, due to the Amnesty Law. A new criminal inquiry in 2009 did not produce results. In this same year, civil society organisations took the case for the IACHR, and filed a lawsuit in 2016. The IACtHR needed to reaffirm the precepts of the Gomes Lund case. Not only did the Court do this, it went beyond it. The IACtHR stated that, as in other countries in the region, the Brazilian amnesty was based on the illusion that an armed conflict was happening and that the state would, magnanimously, grant amnesty at the end of such a dispute. The IACtHR recognised that it had used the concept of crimes against humanity in a few cases; the best-known being Almocinad Arellano.78 In a sense adopted by Brazilian federal prosecutors after Gomes Lund, as the next topic will demonstrate, the IACtHR established that the non-application of a statute of limitations for crimes against humanity is a customary norm in international law. The 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity had only a declaratory effect concerning a previously established norm. It is, beyond that, a jus cogens norm. Referring to the elements that take part in a crime against humanity, the IACtHR held that: (a) there was repressive state strategy based on a Guidance to the Politics of Intern Security (Diretriz para a Política de Segurança Interna), which counted with organs that collected political information and followed codes to avoid that the prisoners were not left with incriminating marks after the interrogations; (b) methods for persecution violated the very legal norms of the dictatorship; and (c) state reports documented diverse forms of psychological and physical torture. Hence, the torture and murder of Vladimir Herzog was a crime against humanity, demanding investigation, prosecution and judgment of the perpetrators. Re-covering Gomes Lund, the IACtHR, again, ruled that the Brazilian Amnesty Law of 1979 had no juridical effects. V.  INTERACTIONS BETWEEN BRAZILIAN INSTITUTIONS AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Domestic institutions in Brazil followed different patterns concerning the amnesty for crimes against humanity committed during the 1964–1985 dictatorship. Right after the IACtHR ruling in Gomes Lund, federal prosecutors adopted a compatibility thesis by which they avoided a clash with the Federal Supreme Court at the same time as they were issuing assurances that the supranational 78 Inter-American Court of Human Rights, Case of Almonacid-Arellano et al v Chile, judgment of 26 September 2006, www.corteidh.or.cr/docs/casos/articulos/seriec_154_ing.pdf.

Interactions between Brazilian Institutions and the IACtHR  49 court was being respected. On 28 February 2011, a coordination organ on criminal matters of the Federal Prosecutors Office deliberated that they could not simply ignore the 2010 Gomes Lund ruling: firstly, because in omitting themselves, they would violate the 1988 Constitution ADCT, which stipulated that Brazil would advocate for the arrangement of an international human rights tribunal; and secondly, because such a lack of action would also be equal to an informal derogation of the American Convention of Human Rights and, subsequently, to Article 60, § 4, number IV, of the 1988 Constitution, which fixes the ‘unamendability’ of the constitutional clauses on human rights.79 To this date, more than 40 criminal lawsuits have been filed against agents of the dictatorship who supposedly committed crimes against humanity.80 The strategic litigation of the federal prosecutors affected the arguments that were brought to the IACtHR in Herzog, as they changed the juridical landscape from a characterisation using the term ‘gross violations of human rights’ to one using the concept of crimes against humanity. In the domestic realm, the criminal lawsuits are defied by the ageing of the dictatorship’s perpetrators. When the National Truth Commission launched its final report, one of the first recommendations was that the Amnesty Law could no longer serve as a hurdle against the investigation, prosecution and judgment of crimes against humanity. It also demanded that the armed forces recognised its institutional responsibility for the violation of human rights that occurred between 1964 and 1985.81 The armed forces did not change their view on what had happened in recent Brazilian history. On the contrary, current far-right movements and even President Bolsonaro prefer to celebrate 1964 as a revolution and deny that any military violations took place. The courts have also helped to avoid any institutional or individual accountability in this field. In the majority of the cases, they halt procedures based on the Federal Supreme Court ruling in ADPF 15382 and the very tribunal has, more than once, acted in a contradictory way. Before

79 Ministério Público Federal. 2ª Câmara de Coordenação e Revisão. Documento 1/2011, www. mpf.mp.br/atuacao-tematica/ccr2/coordenacao/comissoes-e-grupos-de-trabalho/justica-transicao/ documentos/decisoes-e-atos-administrativos-internos/2a%20Camara%20-%20Doc.%201% 20-%20Caso%20Gomes%20Lund%20versus%20Brasil.pdf. 80 In so doing, the federal prosecutors also developed a way of performing the right to truth and memory in a juridical way: the documentation produced by the criminal lawsuits tells the history of each person who struggled or was illegally persecuted by the 1964–1985 dictatorship. Datasets containing the criminal lawsuits and their files can be found at: cjt.ufmg.br/acoes-criminais. The federal prosecutors also did the important job of digitalising the project ‘Brazil Never Again’ (Brasil Nunca Mais), an action of the World Council of Churches and the São Paulo Catholic Archdiocese that gathered documents from the criminal lawsuits against political opponents that took place under military justice during the dictatorship (see bnmdigital.mpf.mp.br/pt-br). 81 Comissão Nacional da Verdade, Relatório: Volume I (Brasília, CNV, 2014) 2.238. 82 In a few cases, Brazilian courts allowed for further steps in the criminal procedures just to see their rulings overturned by regional and superior courts. For a survey of these positive rulings, see R Gonçalves, Responsabilização Criminal Individual por Crimes Contra a Humanidade no Brasil: Análise das Decisões de Recebimento das Denúncias e a sua Adequação à Normativa do Direito Internacional dos Direitos Humanos (Belo Horizonte: UFMG, manuscript with the author, 2017);

50  Transitional Constitutionalism and after the ADPF 153 judgment, for instance, it ruled that forced disappearance, which is not a crime per se in Brazil, is punishable as kidnapping, a crime of a permanent nature. Therefore, the offence can still be perpetrated until the whereabouts of the victims are found. The Federal Supreme Court ruled this way more than once to allow the extradition of Latin American perpetrators.83 Notwithstanding such a caseload, the Federal Supreme Court recently reshaped its view on the meaning of dictatorship’s crimes of other Latin American countries. Although Justices Edson Fachin and Roberto Barroso delivered important opinions, treating the dictatorship’s crimes as crimes against humanity by jus cogens norms, the majority of the Court ruled that a statute of limitations had to be applied. Argentinean prosecutors and courts maintained that a former agent had committed crimes against humanity in their country. However, the majority of the Federal Supreme Court’s Justices refused to apply this reading and denied the extradition based on the statute of limitations. Against a juridical characterisation made by organs of a sovereign state, the Brazilian Court, by a majority, reduced the effect of crimes against humanity. If those restrictions were applied in the cases of foreign countries, one must assume that the Federal Supreme Court will not change its interpretation on the Brazilian amnesty. VI.  THE MILITARY IN BRAZIL: FROM IMPUNITY TO POLITICS

The procedure on ADPF 153 is still ongoing. An appeal has been filed by the Brazilian Bar Association that has not yet been ruled on. Another lawsuit, ADPF 320,84 has been filed, requiring a ruling from the Federal Supreme Court to solve a possible contradiction between what happened in the ADPF 153 and the Gomes Lund case ruled by the IACtHR. As the Chief Justice of the Federal Supreme Court sets the agenda,85 various political arguments always seem to prevent a final judgment from being handed down – even after more than ten years. Although there are different ways to show the achievements of the post-1988 constitutionalism, the absence of criminal liability for crimes against humanity committed between 1964 and 1985 generates enduring and problematic F Tirado, Human Rights, Transitional Justice and Transnational Law: Towards Accountability for Crimes Against Humanity in Brazil (Belo Horizonte, UFMG, masters dissertation, 2018). 83 See Federal Supreme Court, Extradição 974, judgment of 6 August 2009, redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=AC&docID=606492; Federal Supreme Court, Extradição 1.150, judgment of 19 May 2011, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=624223; Federal Supreme Court, Extradição 1.278, judgment of 18 September 2012, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=2875328; Federal Supreme Court, Extradição 1.299, judgment of 10 September 2013, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=4568190. 84 Federal Supreme Court, ADPF 320, portal.stf.jus.br/processos/detalhe.asp?incidente=4574695. 85 D Arguelhes and I Hartmann, ‘Timing Control without Docket Control: How Individual Justices Shape the Brazilian Supreme Court’s Agenda’ (2017) 5 Journal of Law and Courts 105.

The Military in Brazil: From Impunity to Politics  51 effects on the quality of Brazil’s constitutional democracy, especially civil–military relationships. The 1988 Constitution has a backbone that demands such accountability. Little has been done to make significant institutional reforms in the armed forces that could allow for effective civilian control of the military and changes that could enhance public security measures concerned with human rights. Analysing the Latin American landscape, Kathryn Sikkink refers to the idea of a justice cascade of criminal responsibility for past human rights abuses. She shows that the Political Terror Scale (PTS) is higher in countries such as Brazil, where there was no accountability for crimes against humanity under the dictatorship.86 The PTS measures political violence, that is, violations of human rights and personal integrity by state agents. Between 1988 and 2018, Brazil scored 4 for 22 years and 3 for the eight subsequent years (5 being the worst grade and 1 the best). That means that scoring 4, Brazil faces a situation in which: ‘[C]ivil and political rights violations have expanded to large numbers of the population. Murders, disappearances and torture are a common part of life. Despite its generality, on this level, terror affects those who interest themselves in politics or ideas.’ Scoring 3, the recent record of political imprisonment, execution and unlimited detention is explained. In comparison, Argentina, from 1985 until 2018, scored 2 in 27 years.87 Recent scholarship has also shown that strong truth commissions associated with public trials can result in lower homicide levels– and amnesty laws stimulate criminal violence.88 As chapter five describes it, military forces in Brazil keep on using torture and iron-fist policies built in the dictatorship era and still engage in criminal activity. As we shall see in the forthcoming chapters, instead of looking for more accountability, the Brazilian armed forces either stood vigilant when relating to political issues or, from 2016 onwards, returned to politics. Without lowering Brazilian political terror scores, civilian control over the military was not effectively implemented and, worse than that, members of the armed forces returned to their continuous militarisation of politics. The authoritarianism that remained after the 1964–1985 dictatorship still needs to be constitutionally controlled. Although the judiciary in Brazil has contributed, on different occasions, to the effectiveness of the 1988 Constitution, in the field of transitional constitutionalism, it has also played a detrimental role.

86 K Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York, WW Norton & Co, 2011) 134. 87 See www.politicalterrorscale.org. 88 G Trejo, J Albarracín and L Tiscornia, ‘Breaking State Impunity in Post-Authoritarian Regimes: Why Transitional Justice Processes Deter Criminal Violence in New Democracies’ (2018) 55 Journal of Peace Research 787.

2 Social-Democratic Constitutionalism Neoliberal Unconstitutional Politics and Socio-Economic Rights

T

he 1988 Constitution stipulated an entire catalogue of socio-economic rights. While the constitutional project is situated in a constitutional democratic state paradigm, various provisions were decisive for designing a welfare programme, including social rights, an extensive list of labour rights, the freedom to create trade unions, the guarantee of a right to strike, rights of participation and representation of workers in labour and pensions’ agencies. Principles to regulate economic activity defined a systemic economic order, including the provision of norms for urban and rural lands policies. A section on the social order guarantees a national health system based on the federalist organisation, which has proven to be extremely important in fighting COVID-19, despite the contrary efforts of President Bolsonaro. The 1988 Constitution includes a robust pensions system and provisions for social assistance for the poorest. Education, culture, sports, science, technology and innovation, as well as social communication, environmental protection, family and indigenous people were granted constitutional protection. Such a variety of socio-economic provisions raises the question of what are the boundaries that define both constitutions and constitutionalism. Would the 1988 Constitution or, for example, the 1996 South African Constitution, be open to political projects, such as neoliberalism, that intend to severely reduce or nullify public investment in socio-economic fields, such as health or education? As the introduction of this book suggests, one cannot discuss this question under the lens of a formalistic and straightforward account of constitutions and constitutionalism. Constitutions do create constitutional identities, in the sense that they shape the structure of a pluralistic project for the generations to come based on limited government, the rule of law and fundamental rights. The plain text of a constitution is part of the definition of what constitutional identity is at stake. However, this is just the beginning. Consider, for instance, the implementation of the different social politics of diverse political groups that rotate through power. A constitution’s content and context affects constitutional identity.1 1 M Rosenfeld, ‘Constitutional Identity’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 757.

Social-Democratic Constitutionalism  53 That does not mean that constitutional identity is static. As Rosenfeld puts it, constitutional identity can coexist with tensions between textual sameness and interpretative selfhood. It is in dynamic tension with other relevant identities that one must consider the constitutional project. A country which faces, as one of its sharpest challenges, the reduction of inequality must provide constitutional solutions. Constitutional identity helps to identifying who are the addressees of those solutions. It cooperates by showing what partial identities the constitutional self must incorporate and how the abstract principles must interact with concrete and particular histories. The constitutional identity must also make an adequate inter-connection between textual prescriptions and historical and socio-political conditions.2 Therefore, if the 1988 Constitution establishes a constitutional identity and a constitutional project, its socio-economic aims, developed out of a deeply unequal society, surely imply the pursuit of political projects that actually reduce these inequalities. The fluctuation of the GINI index in Brazil since the 1988 Constitution shows the scale of the constitutional challenge. The GINI index, which compares the income of the poor with the rich, ranges from 0 (indicating maximum equality) to 100 (indicating maximum inequality), was positively impacted by the 1988 Constitution. In 1989, it was at a peak of 63.3; it declined to 51.9 in 2015 and started to grow again to 53.9 in 2018.3 The UN World Social Report 2020 showed that the country was able to push down wage disparities, tangling them with fiscal redistribution and social policies. They included rural pensions and the so-called Benefício de Prestação Continuada (continued instalment benefit) for individuals who were older or had disabilities and earned a quarter of the minimum wage. And, of course, social policies integrated the well-known programme of income redistribution, Bolsa Família.4 Still, Brazil has the second highest wealth concentration rate in the world, since one per cent of the population owns 28.3 per cent of total income.5 In different opportunities over the last 30 years, the 1988 Constitution confronted measures that attacked its social-democratic constitutionalism basis. The original text of the 1988 Constitution provided an essential structure for the financial system. Several provisions demanded statutory delimitation. However, they guided the legislator to safeguard national interests, protect international treaties, create funding or insurance to cover the popular economy and restrict the transfer of savings from more impoverished regions to richer ones. 2 ibid, 762. 3 See data.worldbank.org/indicator/SI.POV.GINI?end=2018&locations=BR&start=1981&view= chart. 4 UN Department of Economic and Social Affairs, ‘World Social Report 2020: Inequality in a Rapidly Changing World’, /www.un.org/development/desa/dspd/wp-content/uploads/sites/22/2020/02/WorldSocial-Report2020-FullReport.pdf. 5 UN Development Program, ‘Human Development Report 2019’, www.hdr.undp.org/sites/ default/files/hdr2019.pdf; see, also, hdr.undp.org/en/countries/profiles/BRA; G1, ‘Brasil tem 2ª maior concentração de renda do mundo, diz relatório da ONU’, G1, 9 December 2019, g1.globo. com/mundo/noticia/2019/12/09/brasil-tem-segunda-maior-concentracao-de-renda-do-mundo-dizrelatorio-da-onu.ghtml.

54  Social-Democratic Constitutionalism One provision did not explicitly order the action of the legislator. It was stated on Article 192, § 3º, of the 1988 Constitution: ‘real interest rates, including commissions and any other direct or indirect payments related to credit concession, cannot be superior to 12% a year; charges above that limit will be criminalised as usury, punished, in all its modalities, in the way provided for by statute’.6 One can easily see that only the criminalisation of usury was supposed to be regulated by a statute. At the start of the new constitutional regime, the Federal Supreme Court had to decide on the efficacy of Article  192, § 3º of the 1988 Constitution.7 The lawsuit was filed as a form of concentrated constitutional review, having, as its object, a normative opinion approved by the President of the Republic with general effects. As the general tone of Article 192 required a statute to regulate the financial system, the Federal Supreme Court ruled that the specific paragraph also argued for such a regulation – or, in other words, statutory legislation on the matter was essential for the norm’s incidence on real interest rates.8 The real interests mentioned in the constitutional provision demanded a conceptualisation. In the view of the opinions of the Federal Supreme Court Justices, Article 192, § 3º should be interpreted considering the lessons of the well-known Brazilian constitutional scholar mentioned in chapter one, José Afonso da Silva.9 His 1968 study, based on Thomas Cooley and Vezio Crisafulli, argued that there were constitutional norms of limited efficacy that could only reach full normative force and only be completed through the work of the legislative branch. The justices referred to debates in the Constituent Assembly of 1987–1988, in which the representatives recognised the immediate application of Article 192, §  3º of the 1988 Constitution. Nonetheless, they sustained the logic that the head statement of an Article binds the interpretation of its paragraph. The decision refused the direct effects of the constitutional norm, in this sense benefitting banks and credit card companies and instead of the general consumer. In light of Brazil’s dire economic situation in 1991 one can wonder how a simple and direct recognition of the total efficacy of the constitutional text could generate different economic effects. One explanation for the Federal Supreme Court ruling in the ADI (Ação Direta de Inconstitucionalidade, Direct Action for the Declaration of Unconstitutionality) 4 rests on the recent transition that was taking place and the conservative composition of the Court. Overcoming the controversy, in 2003,

6 The original text of the 1988 Constitution can be found here (in Portuguese): www2.camara.leg. br/legin/fed/consti/1988/constituicao-1988-5-outubro-1988-322142-publicacaooriginal-1-pl.html. 7 Federal Supreme Court, ADI 4, judgement of 7 March 1991, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=266153. 8 The Brazilian normative acts are enlisted in Article 59 of 1988 Constitution. The constitution separates ordinary acts (leis ordinárias) from supplementary acts (leis complementares) or statutes, demanding, for the approval of these last ones, an absolute majority vote of each entire chamber (half the members plus one). For ordinary acts, the approval demanded by the constitution is of a simple majority of the representatives present to a law-making session. 9 J Silva, Aplicabilidade das Normas Constitucionais (São Paulo, RT, 1968).

Authoritarianism and Neoliberalism  55 the National Congress approved Constitutional Amendment 40 and removed this provision of the 1988 Constitution. The Federal Supreme Court ruling highlights a problem that connects transitional constitutionalism and socio-economic rights. More than that, it asks for the connection between transitional justice and socio-economics rights and, before that, between constitutionalism and rights that go beyond the traditional liberal agenda. Finally, there are also problems with the relationship between authoritarianism and the absence of protection for socio-economic rights. This chapter will try to expose some of the lines that entwine those themes in Brazilian 1988 constitutionalism, not only focusing on this case study, but, also, comparing it to the South African example. The aim is to attempt to provide explanations of the partial success of 1988 constitutionalism and to also illustrate possible effects that neoliberal and authoritarian interpretations of the 1988 Constitution have on democracy. The judiciary will not be the only focus here: public policies that relied on neoliberal premises are generally debated. Therefore, the relationship between authoritarianism, economic power and constitutions will be addressed, as well as the debate on transformative constitutionalism’s nature and its suitability for Brazil. Hence, a comparative constitutional exercise regarding the South African case will be made and the relationship between socio-economic rights and the Brazilian transition, detailed. Finally, a reflection about the connection between authoritarianism and neoliberal politics will be suggested. The main objective in this chapter is to oppose the general idea that neoliberal politics can be in accordance with the Brazilian 1988 constitutionalism. On the contrary, part of the features of the 1988 constitutional identity comprises a social-democratic project that opposes neoliberal proposals. And as long as neoliberalism has closer ties with authoritarianism, one cannot set aside the possibility that such a project opposes the very idea of constitutionalism. I.  AUTHORITARIANISM AND NEOLIBERALISM

Before debating the enforcement limits of social-democratic constitutionalism, it is essential to recognise that economic choices can strengthen authoritarianism. Hirschman pioneered studies on the relationship between authoritarianism and economics, recollecting the history of ideas that used to provide a hopeful reading of the benefits to rights and freedoms propelled by economic growth.10 The modern economy has the capacity to justify despotism for its specific and supposedly necessary rules of efficient performance (the ‘delicate watch’), intractable both for rulers and for the people. Going beyond Guillermo O’Donnell’s 10 A Hirschman, ‘The Turn to Authoritarianism in Latin America and the Search for its Economic Determinants’, in D Collier (ed), The New Authoritarianism in Latin America (New Jersey, Princeton University Press, 1979) 63.

56  Social-Democratic Constitutionalism thesis of an economic justification for the advent of authoritarianism in Latin America in the 1960s and the 1970s, based on the lack of predictability and deep industrialisation,11 Hirschman expanded his analysis to more structural problems, such as inflation and balance of payments disequilibrium. He observed that, in most Latin American authoritarian regimes, the dominant view of economic policymakers was pro-market and centred on the neo-laissez-faire readings of the University of Chicago.12 It is not sufficient, however, to only focus on the economic dimension of neoliberalism. After all, as Biebricher already depicted,13 neoliberalism’s first proponents were concerned with the limits of liberalism’s laissez-faire conceptions of economics – beyond their criticism on the collectivism of systems such as national-socialism or communism. The common problem for authors such as Wilhelm Röpke, Alexander Rüstow, Friedrich Hayek and Milton Friedman is to find the political and social preconditions for functioning markets. The common ground of dispute is the factors that keep the maintenance of markets characterised by the integrity of the price system. Yes, the market remains central, but its surroundings and structures are also significant. In its relation to democracy, neoliberalism will, first, share the same collective concern that appeared at the onset of the movement in the 1930s. Beyond that, neoliberal theories have a preoccupation with how democracy can make state and society relations cumbersome. Plus, there is an explicit critique of representative democracy, an element that neoliberalism shares with fascism and, for some, with populism.14 Hayek develops an analysis of contemporary democracy, focusing on problems related to constitutionalism, majoritarianism and limitlessness. The sovereignty of a representative assembly, for instance, could lead to its unlimited authority, a configuration opposed to the rule of law. Other lines of criticism of contemporary democracy arise from the pluralist problem of competing for particularistic interests that distort the political process, the destructive power of the masses and the prevalence of a ‘homo economicus’ 11 G O’Donnell, ‘Reflections on the Patterns of Change in the Bureaucratic-Authoritarian State’ (1978) 13 Latin American Research Review 3. 12 Joaquim Levy, Dilma Rousseff’s Finance Minister in 2015, holds a PhD by the University of Chicago (1992). Paulo Guedes, Jair Bolsonaro’s Economy Minister, also holds a PhD by the same university, where he studied under Milton Friedman in the 1970s. Guedes taught economics in Chile for six months at the end of the Pinochet era (M Gaspar, ‘O Fiador’, Piauí, September 2018, piaui. folha.uol.com.br/materia/o-fiador). 13 T Biebricher, The Political Theory of Neoliberalism (Stanford, Stanford University Press, 2018) 80. 14 See, for instance, what Ohana depicts as ‘legal fascism’: ‘a consistent legal theory which denies rationality, the corner stone of Enlightenment; rejects the institutions of the civil society; promotes politics as a permanent situation of conflict between friends and enemies; and founds its legitimation in the legality of the leader or the “movement”’ (D Ohana, ‘Carl Schmitt’s Legal Fascism’ (2019) 20 Politics, Religion and Ideology 1. Werner-Müller (J Werner-Müller, What Is Populism? (Philadelphia, University of Pennsylvania Press, 2016, 47) claims that populism is not properly against representative democracy, as long as the ‘right’ representatives represent the ‘right’ people.

Authoritarianism and Neoliberalism  57 logic that dominates political parties, in favour of rent-seeking. The neoliberal agenda detects all these problems. The issue is what to put in the place of constitutional democracy. Market coordination does not merely comply with equality’s requirement of one person, one vote.15 Helena García develops the association between neoliberalism and authoritarianism by bringing to the core of authoritarian constitutionalism the impossibility of choices other than the neoliberal orthodoxy.16 To constitutionalise specific economic policies (fiscal austerity, privatisation, export-led growth and so on) can have the effect of excluding from public deliberations decisions that are of interest to the people. This movement can be even worse in Brazil, considering the previously established constitutional social configuration. The growth of the constitutional neoliberal agenda-setting traces back to the 1980s and 1990s in Latin America (exemplarily in Pinochet’s Chile), spreading to countries such as Colombia, Peru and Brazil. Provisions on the private sector participation in public services were present in constitutions all over the region. Brazilian governments, from Sarney to Bolsonaro, although at different levels, used policies that deepened such privatisation instead of improving the quality of services offered by the state. Another strategy of authoritarian constitutionalism arises from limiting participation in consultation processes using financial arguments, as well as preferring nominations to supreme and constitutional courts of judges with specific economic preferences. Consider, for instance, that, right at the start of Bolsonaro’s Government, a presidential decree tried to extinguish 2,593 consultation organs that helped democratise federal public policies.17 One of the arguments of his Office of Chief of Staff was that these councils existed only to dominate the Brazilian state and consume public incomes.18 The Federal Supreme Court partially reacted and overturned the decree’s provisions that

15 Biebricher, Neoliberalism (2018) 101. 16 H García, ‘Neoliberalism as a Form of Authoritarian Constitutionalism’ in H García and G Frankenberg (eds), Authoritarian Constitutionalism: Comparative Analyses and Critique (Cheltenham, Edward Elgar, 2019) 40. An additional concept that deserves explanation is the one of ‘authoritarian constitutionalism’. This book adopts Frankenberg’s concept that authoritarian constitutionalism is not only the other side of liberal constitutionalism, but a plurality of diverse phenomena (a syndrome with diverse symptoms). It encompasses: a) an authoritarian political technology (exchanging, for instance, autocracy and democracy); b) a personification of the public good by the power as property (what can be done by family members and cronies, with severe consequences for the concentration of economic power); c) a system in which participation is transformed into complicity; d) a cult of immediacy to substitute the temperate style of governance (G Frankenberg, ‘Authoritarian Constitutionalism: Coming to Terms with Modernity’s Dreams and Demons’, Goethe-Universität Frankfurt am Main Faculty of Law Research Paper No 3/2018, 11, publikationen.ub.uni-frankfurt.de/files/45807/18_03_RPS.pdf). 17 Decree 9.759 of 2019, www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D9759.htm. 18 J Saconi, I Aleixo and G Maia, ‘Decreto do Governo Bolsonaro Mantém Apenas 32 Conselhos Consultivos’, O Globo, 29 June 2019, oglobo.globo.com/brasil/decreto-do-governo-bolsonaromantem-apenas-32-conselhos-consultivos-23773337.

58  Social-Democratic Constitutionalism included councils created by statutes in the general shutdown. Several of the Court’s opinions highlighted the importance of deliberative democracy.19 II.  CONSTITUTIONS AND ECONOMIC POWER

Katharina Pistor perceived the overwhelming inequality that harms democracy with the combination of assets and legal devices, such as contract law, property rights, bankruptcy and corporate law.20 And, of course, if lawmaking plays such a prominent role in protecting capital, one must bear in mind the dependence on state power, always underrated in dominant readings of market economies. It is the struggle for the protection of assets through legal modules and its constant transformation, that works with capital and makes some ‘more equal’ than others. States that people constitute with their power are displayed in a fair where foreign assets holders choose and pick the most profitable environments in which taxes and policies are pushed away in the name of their interests as investors. In this sense, capitalism depends on the power of states. And when the electoral success of governments depends on the growth of economies, the promotion of private interests does not always benefit the general public. On the contrary, private interests raise the possibility of more inequality. In her account of Max Weber’s ‘modern particularism’, that is, the specific legal rulings that except the generality of law through the logic of commerce, Pistor makes the point that efficiency has become a mantra for those who advocate that the bigger the pie, the better the chances for its redistribution.21 A form of efficiently securing the interests of asset-holders is the rule of law. Using the structure of subjective rights, private and public law are connected in constitutions that protect capitalism. Private law being characterised by incompleteness and malleability, it opens the door for lawyers to use the legal code to protect some interests at the expense of others. The processes of coding capital into private law often occurs without publicity, on a daily routine of contracts, referring to arbitrators’ solutions and single cases handled by courts. However, constitutions can be used not only to protect capital but, above all, to rule it, especially when they can adequately define the mechanisms for the distribution of wealth. In order to clarify how the unequal distribution of wealth is connected to authoritarian models for exercising political power, one can consider 19 Federal Supreme Court, MC na ADI 6.121, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP= TP&docID=751490560. See, also, A Megali, M Lopes and R Possolo, ‘Debureaucratization or Attack on Brazilian Democracy?’, Democratizando Blog, cjt.ufmg.br/en/2019/04/24/debureaucratizationor-attack-on-brazilian-democracy; R Possolo and A Megali, ‘Democracia Participativa Brasileira: Uma Construção sob Ataque’ (2020), 30 CSOnline – Revista Eletrônica de Ciências Sociais 117. 20 K Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (New Jersey, Oxfordshire, Princeton University Press, 2019) 3. 21 ibid, 206.

Constitutions and Economic Power  59 Christoph  Menke’s concept of the bourgeois constitution.22 Constitutions define the form of subjective rights and, in doing so, regulate the use of political powers by authorities. Additionally, constitutions democratically reorganise political power, enfranchising all subjects with political participation in an egalitarian manner. Political rights become a matter of subjective rights, since no one is obliged to participate.23 The modern liberal constitutions initially refrained from governing civil society. However, what truly happened through the French Revolution is that the same state that constituted civil society would permanently invoke the revolutionary moment. The social order leaves open a state of crisis because the asymmetric distribution of power will foster monopolies and other forms of concentrated private power to dispute between themselves and with the political power over the dominance of civil society.24 In this sense, neoliberalism connects social and political orders via the pretension of private actors to politically govern civil society despite and against the state.25 The state, must, therefore, act to protect not only the participation in the formation of public opinion, but also the production and the results of social wealth. And, for this purpose, one must read rights beyond the negative or defensive conception and on behalf of social rights against authoritarian social domination. Menke relies on Gunther Teubner to argue that, with a constitution, there is not only the definition of the form of subjective rights, but also the very constitutionalisation of the social through a political process that is highlighted by self-government.26 In other words, subjective rights create procedures of social constitutionalisation. At the same time, they can work as hurdles to avoid that social constitutionalisation if they are corrupted by social power relations. It is fundamental, however, to consider both subjective rights and social constitutionalisation as including social rights, so that private wealth is amplified towards participation in social wealth.27 Here, the

22 C Menke, Critique of Rights (Cambridge, Polity Press, 2020) 227. 23 One could criticise the adequacy of this claim through the Brazilian 1988 Constitution’s compulsory vote for those literate citizens between 18 and 70 years old (Article 14, § 1º). However, Brazilian voters still have the option of opposing their dissatisfaction with candidates or their absence of decision by nullifying their votes or casting blank votes. In any case, their votes are invalid votes, but do reflect some kind of political position. 24 ‘The formation of monopolies signifies the achievement of political power through social mechanisms and as a social agent – it thereby signifies destroying the autonomy of the social from within’ (Menke, Critique (2020) 231). 25 An important perspective that should be considered here on the connection between neoliberalism and authoritarianism is the one developed by Michel Foucault. For reasons of space and in order to directly debate that relationship with constitutional matters, this book can only refer to his point of view. For more details, see S Sawyer and D Steinmetz-Jenkins (eds), Foucault, Neoliberalism, and Beyond (London/New York, Rowman & Littlefield, 2019); D Zamora and M Behrent (eds), Foucault and Neoliberalism (London, Polity Press, 2015). 26 Menke (n 22) 237. See G Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford, Oxford University Press, 2012). 27 Menke (n 22) 176.

60  Social-Democratic Constitutionalism central argument is that constitutions must regulate social relations to avoid that, by exclusion, economically strong private actors suffocate the weak ones. Neoliberal logic, however, can do it despite, but also in reason of, their dominance of the political power. The association between authoritarianism and economic power can go beyond the objectives of an authoritarian regime and produce effects during and after transitional processes (although defining an outset and an end point to this period can be a challenging task).28 Even constitutions can stem from the sum of authoritarianism and economic power. On one hand, the literature has tried to explain why authoritarian regimes need constitutions to produce legitimation domestically and internationally.29 On the other, it is relevant to understand how constitutions can serve to protect elites’ interests during times of transition, a phenomenon that demands both a comprehension of the role of constitutions and also what transitions (and transitional justice) should mean. Additionally, considerations of the diverse aspects by which transitions have failed or authoritarianism has flourished or returned cannot be neglected. Concerning precisely the situation of countries like Brazil and South Africa, it can be helpful to explore the relationship between some of the political and juridical concepts these countries have been dealing with in the past 30 years. There are huge differences between these two contexts. However, problems with transitional justice, constitutionalism and socio-economic rights are common to both nations. Some similarities can allow a mutual learning process in countries with relevant regional geopolitical influence that share a joint project, materialised in BRICS politics, and which experienced transitions that occurred in proximate times. A preliminary question, nonetheless, is related to the possibility of inserting both countries into the transformative constitutionalism concept. III.  TRANSFORMATIVE CONSTITUTIONALISM AND TRANSFORMATIVE JUSTICE

Karl Klare’s proposal on transformative constitutionalism seems to be, still today, timely.30 Twenty years after he wrote his influential piece, there is still a lot for Brazil, South Africa and other countries to accomplish with their constitutional projects. Of course, there has been much improvement. However, at the same time, political and constitutional concepts flourish with the aim of explaining the new waves of authoritarianism, and in fragile democracies there is still a 28 Consider the transitional issues Brazil, South Africa and especially Spain have faced so many years after the end of their exceptional regimes. 29 T Ginsburg and A Simpser, Constitutions in Authoritarian Regimes (Cambridge, Cambridge University Press, 2014). 30 K Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 150.

Transformative Constitutionalism and Transformative Justice  61 bridge to cross to consolidate fundamental rights.31 Transformative constitutionalism refers to a long-term project involving the enactment, interpretation and enforcement of constitutional provisions in order to change political and social institutions to provide democracy, participation and equality. A major proposition made by Klare was that political and social change could happen through law-based processes. That should be done, as a first step, with changes in the legal culture in South Africa to absorb what Klare calls a ‘post-liberal’ constitution – one that is committed to social transformation. Also, modifications in legal interpretation must have happened. These changes stem from the interconnection between political and socio-economic rights, the struggle against poverty and social welfare obligations, the multiculturalism approach and the historical self-consciousness established in the 1996 South African Constitution. That is why Klare will rely on Duncan Kennedy’s work to soften the distinctions between politics and law, and between the strategic and the professional, arguing that interpretation is not a mechanical process, but a work performed within a medium.32 Suppose in 1998 it was possible to assert that judges assume responsibility for the social and distributive consequences of the decisions they make, or that the political process could send signals to the judicial branch that indicate the political and moral assumptions that underline their choices in cases of legal indeterminacy.33 In both cases, one cannot be entirely sure this would be the best option in retrospect. Consider that the growing process of ‘juristocracy’, to use Hirschl’s term, is not a privilege of common law countries like Canada, New Zealand, Israel and South Africa.34 As other chapters in this book show, Brazil has been confronting a constitutional erosion that leads the country to democratic backsliding, based on the very proactive role played by the judiciary. This protagonist role does not include, however, the protection of socio-economic rights. Contrary to Klare’s prediction, law (and the use of it by important actors) can cooperate to advance projects designed by elites. Mostly in situations where there was great expectation that courts and judges could drive these processes through the judicial adjudication of constitutional rights, the opportunity for hope in social change was replaced by the maintenance of the same inequalities that qualified previous relations under authoritarian circumstances. Cases are contextually shaped, of course. What was expected of the new courts that occupied the highest level of the judiciary in transitioned democracies, like the South African Constitutional Court, is entirely different from situations where almost

31 E Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31. 32 Klare, ‘Legal Culture’ (1998) 160. 33 ibid, 165. 34 R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (New Haven, CT, Harvard University Press, 2004).

62  Social-Democratic Constitutionalism the same institutional structure remained intact, or, at least, in cases in which the highest court survived, like the Federal Supreme Court.35 If elites have a decisive role in pressing on how to interpret a constitution that is supposed to overcome an exceptional regime, blurring the distinction between law and politics may be a problem. It is not the case, however, to ask for the return of a positivist way of reading the law,36 but to recognise that its interpretative dimension does not allow overcoming the distinction between law and politics. Transformative constitutionalism is still an attractive concept, as long as one respects the normative force of constitutions. Such recognition is especially necessary in cases where courts ignore constitutional provisions (especially those with socio-economic features) to impose their political conceptions attuned to neoliberal and austerity proposals. In this sense, one must also consider the shortcomings of transitional justice to allow for true new fundamental rights case law in democracy or transformations in old courts interpretations. Matthew Evans criticised the traditional transitional justice toolkit, especially in South Africa, deeming it insufficient if one takes into account the relationship between structural rights, landlessness and broader human rights issues.37 Such a traditional toolkit would encompass accountability for crimes committed during the authoritarian regime, initiatives on truth and memory (such as truth commissions), reparations programmes and institutional reform measures.38 Instead of insisting on the traditional methods transitional justice provides for, a better approach would be to conceive of a transformative justice that could encompass problems still fiercely presented in South African society, like land and socio-economic rights. The first concept considered by Evans is structural violence. According to Johan Galtung’s approach, as employed by Evans, this means the kind of violence enacted upon un-individualised victims and that does not have any specific and identified individual perpetrator. ‘Structural’ here refers to how this violence is inserted in our social world through political and economic organisation. This kind of violence is not defined through particular deeds, but through general conditions usually set in place long ago and that attack the physical and mental

35 ‘The relationship between the STF and the transformative blueprint set out in the constitutional text since1988 [h]as been full of false starts and misleading twists’ (D Arguelhes, ‘Transformative Constitutionalism: A View from Brazil’ in P Dann, M Riegner and M Bönneman (eds), The Global South and Comparative Constitutional Law (Oxford, Oxford University Press, 2020) 187. 36 The prevailing thesis of this book does not overlook the problems of trying to reduce juridical positivism to only one position. There are plenty of proposals on what positivism means. For the limits of present research, however, one must presuppose that a positivist account of law would limit adjudication to a simple operation of relating facts to norms, using the as judge a discretionary power when facing gaps in the law. See R Dworkin, Taking Rights Seriously (London and New York, Bloomsbury Academic, 2013). 37 M Evans, ‘Structural Violence, Socioeconomic Rights, and Transformative Justice’ (2016) 15 Journal of Human Rights 1. 38 See R Teitel, Globalizing Transitional Justice: Contemporary Essays (New York, Oxford University Press, 2014).

Transformative Constitutionalism and Transformative Justice  63 development of people. Social and gender inequalities, racism and poverty can be at the root of structural violence. Evans questions how transitional justice practices have focused more on ‘bodily integrity’ violations of human rights.39 Two of the main trends in making transitional justice respond to such demands are the creation of more space in truth commissions to debate socio-economic injustices and the reshaping of reparations programmes. However, more has to be done to expand traditional, transitional justice borders. Some suggestions indicate the political weakness and limited capability of the post-functioning results of the truth commissions.40 Reparations also face the difficulties of limited resources, adequately identifying all potential beneficiaries, the low capacity to deal with structural issues and longer-term claims of justice. A ‘transformative justice’ concept would address those limitations and stretch the traditional transitional justice toolkit to include structural violence, especially the one caused by social and economic distortions. Relying on Erin Daly’s works, Evans remembers that transitions may have a component of topdown changes, whereas transformation would embrace changes throughout society. The problem is that neither the traditional toolkit nor the community’s participation are able to provide an adequate definition of victimhood. Transformative justice must, as a first step, provide means for participation, allowing the involvement of affected communities, legitimating the results and empowering marginalised people. Those are the steps in overcoming the ‘inherently legalistic and elite-driven’ characteristics of transitional justice. For the purposes of having a defined subject, transformative justice must deal solely with structural injustice and socio-economic rights. In the Brazilian case, the omnipresence of neoliberal politics is an essential factor to consider in the investigation of the enforcement failures of the 1988 Constitution social project. According to Evans, one of the leading examples in South Africa of the shortcomings of transitional justice in dealing with structural violence is the unresolved problem of land distribution. Although this was a vital flag for the African National Congress (ANC) during the apartheid era and has remained a salient issue for most of the South African population in recent years, the interpretation of the 1996 Constitution’s provisions on property rights is still market-driven. It is predominantly concerned with restitution instead of redistribution. The result is that around 85 per cent of ownership remains with the

39 Evans, ‘Structural Violence’ (2016) 4. 40 In the Brazilian case, even before the austerity Government of Michel Temer had begun, little was done to make National Truth Commission recommendations effective. The reform of the police apparatus, for instance, is a sensitive subject. During the 2013 manifestations (the so-called June Journeys, Jornadas de Junho) and the 2014 campaign against the World Cup and the 2016 impeachment process in 2020 manifestations, diverse examples of repressive methods took place. Comparatively, the struggle for socioeconomic rights also confronts unprepared police action: one can think of the 2012 Marikana Massacre of 34 striking miners (M Ndinga-Kanga, H van der Merwe and D Hartford, ‘Forging a Resilient Social Contract in South Africa: States and Societies Sustaining Peace in the Post-Apartheid Era’ (2020) 14 Journal of Intervention and Statebuilding 26).

64  Social-Democratic Constitutionalism white population. Transformative justice would respond to these challenges relying, as a first step, on the role played by social movements, NGOs and trade unions. In this sense, civil society movements’ engagement in transformative justice would avoid the traditional elite-driven transitional justice approach. For instance, the Congress of South African Trade Unions has been critical to the ANC’s public policies on land redistribution. Evans makes the point that these trade unions would be better structured, in terms of resources, to defy institutional policies than grassroots movements.41 One concern, however, is to what dimension money can ‘colonise’ trade unions’ perspectives. Another additional role is the one played by NGOs, which can primarily act as intermediaries between grassroots movements and formal policies practiced in the domestic and in the international levels. Vinod Jaichand argues that one of the first transitional justice policies to recognise socio-economic rights came from Colombia and its Victims Law, concerned with the restitution of land. That was a system that Evans already showed cannot be enough to comprise the violations entirely.42 The Peace Agreement signed between the FARC guerrillas and the Colombian Government included a policy on ‘integral rural development’. It should encompass the termination of extreme rural poverty, a 50 per cent reduction on poverty at rural areas over 10 years, the promotion of equality and other measures of socioeconomic character.43 One crucial piece of data Jaichand highlights is the decision of the South African National Truth Commission to exclude socioeconomic rights violations of its mandate, especially those related to forced removals and discrimination in the fields of education and employment. The commission made the exclusion even with social pressure for including these violations in its agenda. One cannot set that fact aside if it is also taken into account that 91 per cent of people who testified at the Commission asked for material guarantees, such as jobs, housing and education. The transitional justice tasks in South Africa are incommensurable. They have to deal not only with the apartheid, a crime against humanity itself, but also with decades of colonialism. As global examples demonstrate, law played an important role in consolidating apartheid. It promoted the dispossession of land owned by the Black people, prohibited land acquirement in certain areas (Natives Land Act 27 of 1913), as well as the allocation of subaltern services to Black people (Black Administration Act 38 of 1927) and their confinement in specific geographical locations (Group Areas Act 41 of 1950).44 Even having a 41 Evans (n 37) 13. 42 V Jaichand, ‘In Transition? The Struggle for Socio-Economic Justice in South Africa’ (2017) 7 Notre Dame Journal of International & Comparative Law 13. 43 COLOMBIA. Oficina del Alto Comisionado Para la Paz. Acuerdo Política de Desarrollo Rural Integral. www.altocomisionadoparalapaz.gov.co/Documents/informes-especiales/abc-del-procesode-paz/politica-de-desarrollo-agrario-integral.html. 44 Jaichand, ‘In Transition?’ (2017) 15.

Transformative Constitutionalism and Transformative Justice  65 progressive Constitution, the number of poor Black South Africans increased from 92.9 per cent in 2006 to 94.2 per cent in 2011. To meet such a challenge, Jaichand also asks for a change in transitional justice towards transformative justice, focusing on local agency and resources, processes instead of preconceived outcomes and struggles against inequality through socio-economic rights. At the same time as apartheid limited economic development for Black people in South Africa, it also deprived those people of the primary means of production, that is, land. Transitional justice must face these questions or be substituted by other theories of justice, like transformative justice. One cannot think of limits to a transitional justice conception that are only ‘liberalising’ or, at the worst level, ‘economically liberalising’. To substitute a conflict or a dictatorship for a neoliberal agenda or an austerity government can only deepen levels of inequality. However, as Albertus and Menaldo have shown, this can be a way for elites to deprive future democratic forces of commanding politics in the future. Of course, these kinds of transitions will also have limited effect in exercising political and civil rights. The idea of interconnectivity between all types of rights cannot be excluded from the transitional justice agenda, especially given the nature of the transition. If there is much of a negotiation, probably the transitional results will not affect social injustice. In South Africa, the exchange between justice and full disclosure – or between amnesty and access to truth – created the scenario necessary to avoid the fall of neoliberal political economy. The maintenance of the neoliberal agenda was made with the insertion of socio-economic rights in the 1996 Constitution as merely a tempered way of showing that these matters were relevant. Although the Constitutional Court had an essential role in irritating law and economics, ‘Neoliberalism has trumped social justice and socio-economic rights have made limited inroads’.45 As a counterexample, Tunisia framed the debate towards democratisation and a new constitution using the transitional justice concept, although applying to it a different conception that embraced socio-economic rights and participation. On the one hand, attention was paid to collective reparations directed at marginalised areas, especially rural ones, that remained aside of public investment during the authoritarian years.46 On the other hand, civil society’s organisations pressed for women’s participation and to shape the gender rights results of the constituent process that led to the Tunisian Constitution of 2014. Participation not only changed the final draft, as it worked as an essential tool for empowerment, affecting the landscape of previous state feminism used to legitimate the authoritarian state in the direction of a bottom-up movement.47

45 ibid 23. 46 International Center for Transitional Justice. Tunisia. www.ictj.org/our-work/regions-andcountries/tunisia. 47 E Katz, ‘Women’s Involvement in International Constitutional Making’ in B Baines, D Barak-Erez, T Kahana (eds), Feminist Constitutionalism: Global Perspectives (New York,

66  Social-Democratic Constitutionalism One cannot ignore the critical perspective that highlights the role of elites in trying to drive the transitional process in this country. IV.  SOCIO-ECONOMIC RIGHTS, CONSTITUTIONALISM AND TRANSITION IN SOUTH AFRICA

In order to compare the Brazilian and South African cases, justification is required. First of all, one must bear in mind the different ways by which scholars read diverse transitions. Huntington classified the Brazilian transition as a transformative one – although, as chapter one indicated, civil societies groups exerted pressure on elites during the Constituent Assembly of 1987–88 – and the South African transition as one that occurred by transplacement, with government and opposition reaching an agreement.48 There are also ethnic conflicts in South Africa that tend to be softened, if not made artificially invisible, in Brazil. Nonetheless, both countries face extreme conditions of inequality inherited from colonial rule, odious levels of racism, tensions between law and politics through the rising presence of the judiciary and, above all, constitutions with transformative tones built under democratic constituent assemblies. These constituent processes highlighted their socio-economic problems. In the view of Rosevear, a comparison between Brazilian and South African case law on social rights demonstrates that the decentralised system in Brazil generated more success in individual cases.49 The more centralised South African system of judicial review allows for significant rulings concerned with stare decisis and the structural implications for the social rights discussed in the cases. The vindication of socio-economics rights in South Africa is not new, either for the country’s political history, for ANC politics or for the constitutional text itself. One of the main trends in comparative constitutional law is the great interest in the interpretation of socio-economics rights by the South African Constitutional Court, parallel to the criticism to a supposed self-restraint position of the tribunal. Fowkes makes relevant points on this issue.50 Firstly, the Court is not precisely self-restrained, or maybe it is restrained in a relative way, concerning the content that critics argue the tribunal should consider in its rulings. Secondly, political awareness related to socio-economic duties could have increased, allowing judges to review the appropriateness of such Cambridge University Press, 2012) 219; M Oliveira. A Marginalização de Direitos Socioeconômicos na Justiça de Transição: Um Estudo de Caso A Partir da Atuação do International Center for Transitional Justice na Tunísia, Masters dissertation (Belo Horizonte, Universidade Federal de Minas Gerais, 2019) 22. 48 S Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman and London, University of Oklahoma Press, 1991). 49 E Rosevear ‘Social rights interpretation in Brazil and South Africa’ (2018) 5 Revista de Investigações Constitucionais 173. 50 J Fowkes, Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa (Cambridge: Cambridge University Press, 2016) 238.

Socio-economic Rights, Constitutionalism and Transition in South Africa  67 obligations. Finally, there should be a change in the traditional lenses that read socio-economic entitlements of citizens vis-à-vis the state in favour of debates on processes of implementation. The accuracy of the discussion should rely not on the moment when the state starts to implement socio-economic rights, but during discussions on how to implement them. Even considering this change, the problem of what is the place for engaging courts in the debate of socio-economic rights enforcement and whether or not they are prepared for it remains. Right from the start of the transition, the ANC realised that it would not be enough only to assure the civil rights demanded during the apartheid era. The Reconstruction and Development Programme aimed, in 1994, to address the inequalities previously regulated by law and to include unemployed and underemployed people.51 Recollecting the way socio-economic rights played a role in South Africa’s transition can be an essential step in configuring this constitutionalism as socially driven. Sachs argues, in his autobiographic work, that after the three dimensions of rights debate took place, discussions on the judicial enforceability of socio-economic rights split into three positions.52 The first of them saw these rights only as aspirational. The second saw the rights only as guiding principles. The third position saw these rights as justiciable and enforceable human rights. Sachs remembers his debate with Ronald Dworkin, who thought that the equality clause on its own would have the potential to undermine racial discrimination and its harmful results for economic inequality. Context-dependent variants would lead Sachs to the conclusion that a Bill of Rights encompassing socio-economic rights was necessary. More than that, these rights could be justiciable as long as judicial capacities were taken into account and judges did not substitute public policymakers. They should, at least, guarantee a pattern of human dignity. Finally, interdependence should be a characteristic of the dimensions or generations of rights. Nevertheless, the immediate reforms demanded by the 1996 Constitution were quickly substituted by neoliberal economic politics. The discourse of reconciliation was used to halt radical reforms that could favour the Black majority. Whereas the constitutional commitment was designed to incorporate socio-economic demands democratically achieved by activists, their effectiveness became subject to a growing impatience generated by the gross levels of inequality in the country. The absence of adequate public services, corruption at the state level and divisive identity politics prompted conflict, vertically, 51 H Klug, The Constitution of South Africa: A Contextual Analyses (Oxford and Portland, Hart Publishing, 2010) 130. 52 A Sachs, The Strange Alchemy of Life and Law (Oxford, Oxford University Press, 2009) 172. Debates during the constituent assembly that led to the 1996 Constitution included the position of civil society organisations that deemed socioeconomic rights as a necessary step toward the overcoming of inequality legacies originated by colonial and apartheid rule (S Liebenberg, ‘South Africa’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 77).

68  Social-Democratic Constitutionalism from civil society towards the state, and, horizontally, in the relationship between the different partial identities that form the South African constitutional project.53 Part of Sachs’s vision on socio-economic rights would appear in the Grootboom case, decided by the South African Constitutional Court (SACC).54 The SACC ruled that it should recognise the compelling nature of the right to housing, but that should happen progressively and fulfilling a programme that encompasses the right of people in extreme desperation. Mrs Grootboom, with her two children, lived in a shack in a waterlogged area and was finally relocated to an improvised shelter in a sports arena. Based on the 1996 Constitution, she filed a lawsuit against the South African authorities. The Government was censored by the SACC, which ruled that state policies should be reasonably efficient to guarantee housing rights. The Court did not state clearly what that means. Mrs Grootboom would not live to see any transformation that could directly affect her: she passed away in 2008.55 This first ruling that would affect the way the SACC interpreted socioeconomic rights was in Soobramoney, in which the Court ruled that health services granted to a chronic disease patient by the state were not unreasonable, taking into account the limited resources available.56 More substantial effects were produced in the Treatment Action Campaign case, when the SACC determined that nevirapine offered by the state to avoid the transmission of the HIV to newborn babies should be extended to all state health facilities. The general policy was to provide nevirapine at only two sites in each province.57 The Treatment Action Campaign case expanded the SACC limits for overseeing public policies involving socio-economic rights. A broader analysis of the Treatment Action Campaign – beyond the case adjudicated by the SACC – illuminates the effectiveness of the combination of socio-economic rights and democratisation processes. As Klug demonstrated,58 the campaign was able not only to obtain an SACC ruling that expanded the constitutional governmental duties towards a federalisation of the right to health, but also to reduce the prices of nevirapine, which were subject to companies’

53 Ndinga-Kanga, van der Merwe and Hartford, ‘Forging a Resilient Social Contract in South Africa’ (2020) 25. 54 South African Constitutional Court, Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000), www.saflii.org/za/cases/ZACC/2000/19.html. 55 P Joubert, ‘Grootboom Dies Homeless and Penniless’, Mail & Guardian, 8 August 2008, www.pressreader.com/south-africa/mail-guardian/20080808/282033322979351. 56 South African Constitutional Court, Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997), www.saflii.org/za/cases/ZACC/1997/17.html. 57 South African Constitutional Court, Minister of Health and Others v Treatment Action Campaign and Others (No 1) (CCT9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 (5 July 2002), www.saflii.org/za/cases/ZACC/2002/16.html. 58 Klug, Constitution (2010) 136.

Socio-economic Rights, Constitutionalism and Transition in South Africa  69 illegal collusion.59 This last case involved a complaint lodged at the Competition Commission and the executive action of protecting a fundamental right against a simple market-viewed conception on how to deal with public health policies. The HIV pandemic is still a significant problem in South Africa. However, those cases provide essential lessons on the relationship between constitutions, socio-economic rights and democratisation. One can highlight, for example, that public-interest socio-economic cases are connected to the activities of civil society organisations (Legal Resources Centre, Lawyers for Human Rights, the AIDS Law Project and university law clinics, just to mention a few).60 The SACC went further on developing criteria for approaching socioeconomic rights. The Court refused to adopt the general parameter of a minimum core on those rights that the South African Government should respect and be driven excessively by the openness of reasonableness criteria. But the ruling on the Khosa case was crucial to show that financial arguments shall be limited when evaluated against equal treatment and inclusion. Therefore, the 1996 Constitution imposed an interpretation of the Social Assistance Act of 1992 that demanded the inclusion of destitute permanent residents in social assistance programmes. Financial calculations can sound like speculative arguments if the state is not able to show that the impact on the total social and welfare protection is not relevant.61 To deepen this debate requires that we consider, first, what role courts should play in a constitutional democracy that overcomes an authoritarian regime, with all the differences that former conflict societies, dictatorships or other situations imply – like the particularity of apartheid and post-colonialism. Fowkes reminds us that the German Constitutional Court had to forge its institutional protagonist role out of a formal declaration of power and independence, the Statusdenkschrift memorandum of 1952.62 The Court probably went further in the Lüth case in 1958, 60 years ago, when it designed the proportionality 59 In parallel to compulsory licences being issued in South Africa for HIV treatment, in 2001, FHC Government Ministry of Health led a process for a similar process in Brazil, involving nelfinavir. The legal basis was Article 71 of Law 9.079 of 1996, which allows for compulsory licence of remedies in cases of emergency. See D Madueño, ‘Brasil quebra patente de remédio anti-Aids’, Folha de S Paulo, 23 August 2001, www1.folha.uol.com.br/fsp/cotidian/ff2308200101.htm. 60 S Liebenberg, ‘South Africa’, in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 80. 61 ibid, 88. See South African Constitutional Court, Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004), www. saflii.org/za/cases/ZACC/2004/11.html. 62 Fowkes, Building the Constitution (2016) 95. ‘[S]hortly after its establishment, the Bundesverfassungsgericht sought to define its place within the wider German constitutional order with the publication of a Status Denkschrift (Status Report), in which it asserted that it had the status of a constitutional organ and was, thus, on par with the institutions that had been explicitly attributed this status by the Basic Law itself – namely, the Bundestag, the Bundesrat and the federal president. This claim was subsequently codified in the first article of the law on the Bundesverfassungsgericht’ (M de Visser, Constitutional Review in Europe: A Comparative Analysis (Oxford and Portland, Hart Publishing, 2014) 65).

70  Social-Democratic Constitutionalism analysis for balancing fundamental rights that influenced several courts across the world.63 The Hungarian Constitutional Court faced the same problems in the 1990s transition – and would again meet them in the Hungarian Constitution of 2011 and the following authoritarian measures of the Fidesz party.64 Even Madison v Marbury, 5 US 137 (1803) brought questions of judicial authority when it shaped constitutional judicial review. Comparing the methods by which the German Constitutional Court envisioned its jurisdiction, both in the Statusdenkschrift declaration and in the Lüth ruling, is noteworthy. Courts do not attach themselves only to adjudication activity to expand their powers; they can also use institutional and corporative means to affirm themselves. The SACC had a particularity that opened the door to judicial autoaffirmation of powers. In the ruling on Makwanyane, the SACC not only decided on the unconstitutionality of the Criminal Procedure Act provisions that allowed for the death penalty; it also defined the way the SACC should envision the Transitional Constitution of 1993, with apparent effects on the constituent process that was to come,65 a transitional constitutionalism issue.66 It would be the certification process that shaped the role of the SACC to a constituent pattern. As Fowkes points out, the SACC was called to be an arbiter on the guarantees for the National Party. The Court should ensure that the newly elected Constituent National Assembly would not go ‘too far’ with the dominant position of the ANC.67 Fowkes defends that both the death penalty and the certification process were not, by themselves, issues that left the opportunity for the Court to be incisive in affirming its powers. They were delivered to the Court so that the SACC could ask for more political deliberation. He argues that ‘leaving things undecided’ does not mean that the Court would accept deciding them. The Court could leave the work to policymaking branches.

63 Alec Stone Sweet, especially in the matters of a horizontalisation of rights, saw in the Lüth case a ‘juridical coup d’état’. See A Sweet, ‘The Juridical Coup d’État and the Problem of Authority’ (2007) 8 German Law Journal 915. 64 Consider, for instance, the nullification of all case law by the Fourth Constitutional Amendment to the 2011 Hungarian Constitution (see K Kovács and KL Scheppele, ‘The Fragility of an Independent Judiciary: Lessons from Hungary and Poland – and the European Union’ (2018) 51 Communist and Post-Communist Studies 192). 65 ‘306. [I]t is well accepted that the transitional Constitution is a culmination of a negotiated political settlement. It is a bridge between a history of gross violations of human rights and humanitarian principles, and a future of reconstruction and reconciliation’ (South African Constitutional Court, S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995), www.saflii.org/za/cases/ZACC/1995/3. html). 66 R Teitel, Globalizing Transitional Justice: Contemporary Essays (New York, Oxford University Press, 2014) 103. 67 See South African Constitutional Court, Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996), www.saflii.org/za/cases/ZACC/1996/26.html; Fowkes (n 50) 97, although he sees the exercise of judicial authority by the SACC in these cases as very modest.

Socio-economic Rights, Constitutionalism and Transition in Brazil  71 During the South Africa transition, the ANC seemed much more concerned with a substantive definition of rights than with institutional design. The exceptions would be the substitution of then judiciary’s highest court, the Appellate Division, formed by apartheid judges, by a constitutional court and the extension of constitutional rights to private relations to surpass white privileges. In Fowkes’ account, the National Party had less interest in securing itself through rights declarations and a court to protect its interests – issues of sharing power via federalism or regionalism proposals seemed to be more attractive.68 In part, socio-economic rights implementation has progressed in South Africa since 1994. Still, Black areas suffer from poor-performing school systems, weak healthcare nets and inadequate sanitation. This situation is aggravated by the phenomenon of ‘state capture’: state-owned enterprises drive their rents to private hands instead of public ones.69 Plus, the intersectionality of discriminating factors (race, gender and class) shows that there are demands for more sensitive public policies in making effective the 1996 Constitution. V.  SOCIO-ECONOMIC RIGHTS, CONSTITUTIONALISM AND TRANSITION IN BRAZIL

Socio-economic rights were never a specialised field in the Brazilian transitional justice process. To understand their role in this country’s contemporary democracy, however, demands a step back in time. A very late abolition law (Law 3.353 of 1888) and all the odious inheritance of slavery, mixed with the rising of Darwinist racial theories and the absence of the politics of inclusion, all contributed to the interdiction not only of a real consolidation of liberty, but also the extension of socio-economic rights. It is not enough that the 1988 Constitution provisioned for defining racism as a non bailable and not subject to a statute of limitations crime.70 Nor is it enough that it protected the Afro-Brazilian culture manifestations and the property of those reminiscent populations of the quilombos.71 Nor, either, is it enough that the Federal Supreme Court ruled in 68 Fowkes (n 50) 107. 69 Ndinga-Kanga, van der Merwe and Hartford (n 40) 29. 70 The Federal Supreme Court ruled on a landmark case to extend the protection of the norm to a social definition of racism that would also protect Jewish people (Federal Supreme Court, HC 82.424, judgment of 17 September 2003, redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=AC&docID=79052). Courts in Brazil, however, refused to apply the Racism Act (Law 7.716 of 1989) to a broad range of situations involving racist speech, preferring to define them as racial libel. See B Johnson, ‘Prejudice against being prejudiced: Racist speech and the specter of seditious libel in Brazil’ (2015) 20 Communication Law and Policy 55. In 2017, the Federal Supreme Court signed that it could agree with the Brazilian Superior Court of Justice to equal racial libel to racism for considerations of non-application of a statute of limitations – in the phrase used by Article 5(XLII), of the 1988 Constitution, a crime that would be subject to imprescriptibility. 71 Colonial documents of the 16th, 17th and 18th centuries used the terms mocambo and quilombo to refer to communities of fugitive slaves. They were located in rural and urban areas and refer to a history of resistance that was only constitutionally recognised with the 1988 Constitution.

72  Social-Democratic Constitutionalism favour of racial affirmative actions in the University of Brasília in 2012,72 that the Law 12.711 extended the criteria for indigenous and disabled persons or that a statute on racial equality was approved in 2010 (Law 12.288 of 2010). Racism continued to be a huge problem in Brazil, severely harming Black people – another feature of this country’s authoritarianism.73 Black people constitute 56.2 per cent of the Brazilian population, according to a survey of the Brazilian Institute of Geography and Statistics (Instituto Brasileiro de Geografia e Estatísticas, IBGE). If the workforce corresponds to 54.9 per cent of the population, Black people represent two-thirds of the unemployed. Diverse sources show that Black people, at the rate of 47.3 per cent, have informal jobs, whereas they occupy only 4.9 per cent of offices on the board of directors. Their monthly income is on average almost half of that of white families. In 2018, whereas poverty and extreme poverty (less than US $5.50 per day) affected 15.4 per cent of white people, it affected 32.9 per cent of the Black population. Only 24.4  per  cent of federal representatives are Black. In 2013, only 15.6 per cent of Brazilian magistrates recognised themselves as Black. In 2017, 75.5 per cent of those killed were Black, and the likelihood of a Black juvenile being killed were two-and-a-half times higher than for a white juvenile. Even if socio-economic trends improved between 2007 and 2017, the rate at which Black people were victims of homicides increased by 33.1 per cent, which shows that racism is a crucial factor in preventing redistribution and better chances in life. Considering the authoritarian approach of Brazilian police officers, one cannot ignore that Black people are the target of 74.5 per cent of the killings caused by state interference.74 61.1 per cent of the homicides driven by gender motives have Black women as the victims. Blacks represent 61.7 per cent of incarcerated people. Positive data, due to the incorporation of affirmative action, in public education institutions shows that Black people comprised 50.3 per cent of the student population.75

See E Monteiro and MC Reis, ‘Afro-Brazilian Heritage in the Context of Quilombola School Education’ (2019) 44 Educação & Realidade 2, and F Gomes and JJ Reis, Freedom by a Thread: The History of Quilombos in Brazil (Diasporic Africa Press, 2016). 72 Federal Supreme Court, ADPF 186, judgment 26 April 2012, redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=TP&docID=6984693. 73 L Schwarcz, Sobre o Autoritarismo Brasileiro (São Paulo, Companhia das Letras, 2012) 37. 74 These data allow for an additional point of comparison between South Africa and Brazil through methods of massive police killings that define who owns sovereignty over life and death, in the sense of a necropolitics that is militarised: ‘Entire populations are the target of the sovereign. Besieged villages and towns are sealed off and isolated from the world. Daily life is militarized. Local military commanders have the discretionary freedom to decide whom to shoot and when. Movement between the territorial cells requires formal permits. Local civil institutions are systematically destroyed. The besieged population is deprived of their means of income. Invisible killing is added to outright executions’ (A Mbembe, Necropolitics (Durham and London, Duke University Press, 2019) 81–82). 75 The overreaching collection of data can be found in N Afonso, ‘Dia da Consciência Negra: números expõem desigualdade racial no Brasil’, Lupa, piaui.folha.uol.com.br/lupa/2019/11/20/ consciencia-negra-numeros-brasil.

Socio-economic Rights, Constitutionalism and Transition in Brazil  73 This scenario is depicted by the Brazilian scholar Silvio de Almeida as one grounded in structural racism. In other words, racism is an integral part of the economic and political organisation.76 Firstly, the individualistic conception of racism allows for individual or collective accountability based on the ethical or psychological characteristics of the manifestation. Secondly, racism can be institutional, allowing for the normalisation of discriminatory patterns that sustain the hegemony of a racial group. Institutions are not immune to conflicts; the dominant group will not rely only on displays of physical violence and can make use of forms of producing a consensus that preserves their power – the dominant group can make concessions to subaltern groups. Thirdly, to perpetuate that imposition of consensus, the institutions must stand above a social structure. Even if institutions struggle against racism in their functioning, more is needed to oppose normalised racism in the structure of the society. Otherwise, institutions will only reproduce actions that are part of the daily basis of the social system. Structural racism means a form by which political, economic, juridical and social relationships are forged.77 When connected with economic inequality, structural racism will show that socio-economic rights must take into account the race factor to rebalance social and class relationships, especially in countries such as Brazil and South Africa. Almeida shows that, in Brazil, where taxes privilege salaries and consumption, instead of property and income, Black people are impoverished in a regressive tax system. Additionally, racism helps to legitimise inequality.78 The IACtHR recognised the structural character of racism and discrimination in Brazil, condemning it in Caso Empregados da Fábrica de Fogos de Santo Antônio de Jesus e Seus Familiares v Brasil.79 The case involved the explosion of a fireworks factory that resulted in the deaths of 98 people. The IACtHR considered that, under the American Convention of Human Rights, poverty could be considered a factor in structural discrimination. In that specific case, gender and race were also criteria devalued by the Brazilian state in order to offer adequate protection for workers that had no other employment options in their locales. It is against this backdrop that the socio-economic rights provided for by the 1988 Constitution should be enforced. Although successive Brazilian 76 S Almeida, Racismo Estrutural (São Paulo, Pólen Livros, 2019) 12. 77 ibid, 40. 78 The Brazilian Superior Electoral Court took an important step towards strengthening Black people’s political rights when, in 2020, it ruled that the distribution of the electoral fund resources and the TV broadcast electoral time must be shared by the political parties in a proportional relationship with the number of Black candidates (Tribunal Superior Eleitoral, ‘Divisão do Fundo Eleitoral e do tempo de TV deve ser proporcional ao total de candidatos negros, decide TSE’, Tribunal Superior Eleitoral, www.tse.jus.br/imprensa/noticias-tse/2020/Agosto/ tse-distribuicao-fefc-candidatos-negros). 79 Inter-American Court of Human Rights, Caso Empregados da Fábrica de Fogos de Santo Antônio de Jesus e Seus Familiares v. Brasil, judgment of 15 July 2020, 55, www.global.org.br/ wp-content/uploads/2020/10/Sentencia_Fabrica_de_Fogos.pdf.

74  Social-Democratic Constitutionalism administrations after 1988 adopted a neoliberal approach to economics, they made efforts, in very different ways and levels of impact, to address poverty and inequality concerns. Provided for by the 1988 Constitution, the continued instalment benefit (Benefício de Prestação Continuada, BPC) was regulated in 1993 to support disabled people and elders. After the implementation of the school grant (Bolsa Escola) in the FHC’s administration, Lula’s Government expanded the programmes of income transfer through the world-renowned family grant (Bolsa Família). In all these cases, the benefits were essential to boost the economy, enabling more people to increase their consumption.80 This facilitated a fall in the extreme poverty rate from 7.6 per cent in 2004 to 2.8 per cent in 2014.81 Such policies became even more prominent with the COVID-19 pandemic. Bolsonaro’s Government was pressed by civil society and the National Congress, which were able to approve an emergency benefit through Law 13.928 of 2020, which widened the debate on basic income schemes.82 As inequality in Brazil is enormous, one shall bear in mind that this is a crucial factor for the preservation of democracies.83 Executive and legislative inaction concerning socio-economic rights moved the target to the judiciary. A conservative position that socio-economic rights would only be programmatic – they would entail general guidelines for public policies – was changed throughout the 2000s to allow for courts to ensure that policymakers made concrete implementations. Most of the cases, however, have an individualistic character that is tempered by allegations of budgetary viability reservation (reserva do possível). Pro-litigators’ individual cases overcame collective ones in education and health matters. The most salient data, however, shows that litigation rates are situated between the more educated and wealthiest populations.84 The inadequacy of basic services and the growing structure of public attorney’s organisations (Defensoria Pública) do not translate into more litigation or more participation of the less wealthy ones in judicial procedures. Nonetheless, organised civil society’s engagement for the enforcement of socio-economic rights has begun with the civil mobilisation against HIV/ AIDS. Hoffmann and Bentes observe that this kind of civil litigation, however, is not clearly extended to other socio-economic rights. In this case, the work of 80 M Madeiros, T Britto and F Soares, ‘Transferência de renda no Brasil’ (2007) Novos Estudos CEBRAP 79. Between 10% and 31% of the average decline in the GINI rate in Brazil after 2003 is due to the introduction of the family grant (L Carvalho, Valsa Brasileira: do Boom ao Caos Econômico (São Paulo, Todavia, 2018) 20). 81 M Silva and V Lima, ‘Evaluating the impacts of Income Transfer Programs in Latin America’ (2018) 21 Revista Katálysis 381. 82 M De Bolle, ‘A basic income scheme for the developing world’, Financial Times, 18 May 2020, www.ft.com/content/08eb9a10-98fa-11ea-871b-edeb99a20c6e. 83 A Przeworski, Crises of Democracy (Cambridge, Cambridge University Press, 2019) 35. 84 F Hoffmann and F Bentes, ‘Accountability for Social and Economic Rights in Brazil’ in V Gauri and D Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge, Cambridge University Press, 2008) 111.

Neoliberalism and Transitional Constitutionalism  75 institutionalised actors is much more prominent.85 Legal culture would favour those actors, although there is a chance of spreading litigation with the growing presence of the judiciary in Brazilians’ everyday lives. The constitutional vocabulary for these lawsuits (plaintiffs invoking the right to life and health and defendants arguing for the application of administrative norms) demonstrate that the 1988 Constitution plays a pivotal role in this field. Courts, in health cases, have tended to agree with the plaintiffs. However, it is possible to differentiate between a rights-granting perspective, dominant in individual complaints, and a rights-restrictive view, which appears in collective lawsuits. All in all, if the ineffectiveness of legislative and executive public policies related to socio-economic rights was evident until 2002, from then on, courts and judges assumed a more proactive role that, in turn, pressed for the review of other branches’ policies.86 That was not enough, however, nor consequentially correct. A neoliberal mindset still has pervasive effects on the 1988 socialdemocratic constitutionalism. Plus, as Ferraz indicates, for the model of health litigation, no significant equity in this field was created.87 On the contrary, one per cent of the population struggles for health treatment in the judiciary, with few arguments of priority harming an underfunded system – although it is intended to be universal in Brazil (the Brazilian National Health System, Sistema Único de Saúde, SUS). Additionally, President Bolsonaro used an executive order to deepen its neoliberal pedigree and allow studies to be undertaken to privatise agencies of basic treatment in the SUS.88 The executive order prompted fierce reactions from civil society groups, and the president revoked it the next day. VI.  NEOLIBERALISM AND TRANSITIONAL CONSTITUTIONALISM

Saad-Filho and Morais depict a parallel transition in Brazil over the course of the last 30 years.89 In the 1990s, successive administrations gradually turned from a political economic project of import-substitution industrialisation towards a neoliberal design. In the authors’ Marxist account, one of the main tasks of the Brazilian state has been to maintain systems of accumulation. It does so both through a conservative role, keeping the relations of domination and exploitation, as well as preserving inequality, and a transformative role when public policies are used to strengthen primitive forms of accumulation. This results in a state that acts vertically and harmlessly against minorities to preserve elites’

85 ibid, 114. 86 ibid, 141. 87 O Ferraz, Health as a Human Right: The Politics and Judicialization of Health in Brazil (Cambridge, Cambridge University Press, forthcoming) 280. 88 Decree 10.530 of 2020, www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/decreto/D10530.htm. 89 A Saad-Filho and L Morais, Brazil: Neoliberalism Versus Democracy (London, Pluto Press, 2018) 4.

76  Social-Democratic Constitutionalism interests (financial, agricultural and industrial capitalists, political chiefs, top civil servants, military officers, the Catholic hierarchy and evangelicals, the mainstream media and so on). Transition through the 1988 Constitution was done, according to Saad-Filho, with civil rights, no censorship and liberty for political parties in the years to come.90 Nonetheless, little was done to promote the bold redistribution of economic power, although, in the view of this author, the constitutional devices were made available. The 1988 Constitution decentralised health and education policies to states and municipalities without the corresponding necessary funding and the incentives for adhering to welfare policies. In other words, if the central Government does not commit itself to socio-economic policies, why would the states and counties choose to allocate budget towards them?91 At the same time as the 1988 Constitution provided for social welfare politics, it was criticised for generating insurmountable deficits. The 1990s saw gradual cuts in public investments on socio-economic rights. Diverse sectors were privatised, such as mining, steel and telecommunications.92 As markets pressed for guarantees that FHC’s economic (ie neoliberal) politics would go on after 2002, Lula, as a candidate, wrote a public letter assuring his respect for contracts and economic continuity. With his election, although a social programme was a landmark of the Workers’ Party’s political history, the neoliberal politics were not sidelined. This was partially due to the absence of strong support in the National Congress and the opposition of traditional elites. The fiscal adjustment was balanced with the politics of income transfer, major access to credit and public investment. Brazil also joined the offer of commodities demanded on international markets, paving the way for what some economists depicted as the ‘small miracle’ (milagrinho, an unfortunate comparison with the ‘Brazilian miracle’, the milagre brasileiro, of the 1970s dictatorship).93 Dilma Rousseff’s terms were not successful in economics, both due to governments’ mistakes and the international scenario. Public investments were reduced while tax exemptions were increased. Constant attacks on her fiscal policies would not only produce economic but political effects – the main one being the accusations in the impeachment process against Rousseff in 2016. Right after taking office for her second term, in 2015, Rousseff nominated the orthodox economist Joaquim Levy for the Finance Ministry and started an austerity

90 ibid, 44. 91 M Arretche, ‘Políticas sociais no Brasil: descentralização em um Estado federativo’ (1999) 14 Revista Brasileira de Ciências Sociais 119. 92 It is generally neglected how privatisation can affect a constitutional administrative structure. ‘Privatization’s fusion of State and commercial power represents simply the latest and perhaps greatest threat to [the] fundamental constitutional commitment’ (J Michaels, Constitutional Coup: Privatization’s Threat to the American Republic (Cambridge, MA/London, Harvard University Press, 2017) 17). 93 Carvalho, Valsa Brasileira (2018) 19.

Neoliberalism and Transitional Constitutionalism  77 programme in contradiction to her political campaign for re-election. When Michel Temer replaced Rousseff, he went on to deepen the neoliberal policies. It was under his term that Constitutional Amendment 95 of 2016 was approved, creating a ceiling on public spending for the next 20 years. Public debt can only grow annually considering the limit of the inflation of the prior year. Socio-economic rights and policies were to be directly affected. The constitutional amendment had the objectives of destroying and rebuilding the core of the 1988 Constitution: as Albert described it, it is a constitutional dismemberment.94 The constitutional amendment, in this case, raises the problem of the absence of democratic legitimisation for a process that will be limited for the next 20 years, affecting different legislatures.95 In the field of labour law, also powerfully protected by the 1988 Constitution, major reforms occurred both in the constitutional and the statutory levels. For these reforms, the Federal Supreme Court gave its consent. In 2016, the Court ruled in a single case with general effects that public officials shall cut the salaries of public servants who go on strike, even if the 1988 Constitution provides for a right to strike for public servants.96 In 2018, the Court validated an act that extinguished the union’s compulsory contribution, one of the primary forms of guaranteeing the survival of the unions.97 With other rulings that validated outsourcing labour and the legitimacy of COVID-19 exceptional measures that exempted unions from the reduction of salaries and workings negotiations, a process of the destruction of labour law, as envisioned by the 1988 Constitution, is taking place.98 The reduction of salaries without the participation of unions is a remarkable case, since the Federal Supreme Court ignores what is textually provided for by the 1988 Constitution. Violent protests and the police response to them in South Africa have diminished the sense of legitimacy of democratic institutions and communication. Doubts on public officials’ reliability are part of the political landscape, both in Brazil and in South Africa. To avoid a situation where vertical and horizontal

94 R Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (Oxford, Oxford University Press, 2020) 78. 95 ‘Such an amendment would deprive the state of financial resources needed to pursue certain political projects and instead prescribe rigorous expenditure cuts, that is, a state of permanent austerity’ (Biebricher (n 13) 97). 96 Federal Supreme Court, RE 693.456, judgment of 27 October 2016, redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=TP&docID=13866341. 97 Federal Supreme Court, ADI 5.794, judgment of 29 June 2018, redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=TP&docID=749631162. When unions can act as intermediary actors, they can smooth demands for wages’ increasing and leave space for more private investment, stimulating a democratic class compromise, in the view of Przeworski (A Przeworski, Crises of Democracy (Cambridge, Cambridge University Press, 2019) 111). Neoliberal policies of Reagan and Thatcher reduced the density of unions in 10% between 1980 and 2010. 98 C Paixão and R Lourenço Filho, ‘O STF e o Direito do Trabalho: as Três Fases da Destruição’, Jota, 29 June 2020, www.jota.info/paywall?redirect_to=//www.jota.info/opiniao-e-analise/artigos/o-stf-eo-direito-do-trabalho-as-tres-fases-da-destruicao-29062020. See Federal Supreme Court, ADI 6.363, judgment of 17 April 2020, portal.stf.jus.br/processos/downloadPeca.asp?id=15345059901&ext=.pdf.

78  Social-Democratic Constitutionalism social cohesion can reach total bankruptcy, civil society groups are calling for more action in socio-economic policies, reinventing Mandela’s rainbow nation conception of constitutional democracy to ask for the inclusion of marginalised groups.99 In the Brazilian case, the socio-economic process was, right from the start of the 1988 constitutionalism, in tension with neoliberal politics, which not only threatened this project, but also the substantive democratic order created at that time.



99 Ndinga-Kanga,

van der Merwe and Hartford (n 40) 38.

3 Institutional and Personal Judicial Guarantees Judges, Inequality and Politics

O

n a beach in the coastal city of Santos, Brazil, an appeals court judge was approached by a local police officer who, following federal legislation, ordered him to put on a mask to prevent the spread of coronavirus.1 As the judge refused to do it – allegedly because the order was based on a municipal decree, instead of a legislative act – the police officer fined him. The judge tore up the receipt, called the police officer an illiterate person and made a cell phone call to the local public security secretary to try to resolve the problem.2 During the height of the COVID-19 pandemic, the State of Minas Gerais Tribunal of Justice had to swear in its new Chief Justice. Although there was a state protocol forbidding meetings of more than 30 people, the court invoked its internal regulations to argue that the swearing ceremony needed to take place physically instead of using any remote platform. One hundred and eighty people gathered, though they wore masks and measures on distancing were taken.3 The situation was quite different concerning the spread of the coronavirus inside overcrowded Brazilian prisons. The National Council of Justice made a recommendation that incarceration measures should be reviewed by judges considering the vulnerability of pregnant women, people with disabilities, the elderly and other risk groups.4 Analysing 6,781 decisions on writs of habeas corpus ruled by the State of São Paulo Justice Tribunal, researchers found that 1 Law 13.979 of 2020, Article  3º(III-A), www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/lei/ l13979.htm. 2 A Rebello and B Madrid, ‘Abordado sem máscara, desembargador despreza guarda em Santos: “Analfabeto”’, UOL, 19 July 2020, noticias.uol.com.br/cotidiano/ultimas-noticias/2020/07/19/santoshomem-se-apresenta-como-desembargador-recusa-mascara-e-humilha-cgm.htm. With the huge impact they caused, the judge was suspended by the Brazilian National Judicial Council – although his salary was maintained, according to Brazilian law. 3 F Canofre, ‘Tribunal de Justiça de Minas tem posse com 180 pessoas em meio a pandemia’, Folha de S Paulo, 2 July 2020, www1.folha.uol.com.br/poder/2020/07/tribunal-de-justica-de-minastem-posse-com-180-pessoas-em-meio-a-pandemia.shtml. 4 National Council of Justice, Recommendation 62, 17 March 2020, www.cnj.jus.br/wp-content/ uploads/2020/03/62-Recomendação.pdf.

80  Institutional and Personal Judicial Guarantees the court denied 88 per cent of the lawsuits based on coronavirus criteria and risk for the imprisoned.5 A judge from the State of São Paulo Justice Tribunal even used irony to deny the conversion of prison into house arrest: according to him, only astronauts, among the almost eight billion people on Earth, would be protected from being infected by the virus.6 In 2011, a police officer in Rio de Janeiro stopped a judge at a checkpoint. The judge had neither a driver’s licence nor the car documents and the vehicle was without its licence plate. As the driver insisted on arguing with the police officer, she told him that he was a judge, not God – a common popular saying in Brazil. Three years later, a court ordered the police officer to pay reparations to the judge. The fine exceeded her monthly salary.7 On the other side of the bench was a judge that would probably receive five times what the police officer did. Although the 1988 Constitution stipulates a remuneration ceiling for every magistrate in Brazil – the salary of a Federal Supreme Court Justice – almost 70 per cent of the judges violate this limit through compensation benefits for housing, health and even education. Judges do not face obstacles for the enforcement of their own socio-economic rights. A judge in Pernambuco State received in one month, based on delayed payments, US $324,637.8 Such figures were not enough to impede the president of the Association of Brazilian Magistrates to debate revisions on judges’ salaries and state that judges are not mere public servants.9 In addition, from 2014 to 2019, the judicial branch became US $2 billion more expensive, reaching 1.5 per cent of the national GDP.10 That is the same judicial branch that usually engages in politics (see chapter five). During Michel Temer’s brief term, justices of the Federal Supreme Court did not refuse to meet the president to supposedly debate the political future of the country, including a change of the system of government.11 Under Jair Bolsonaro, attempts to court the president in exchange for an office in the 5 Conjur, ‘TJ-SP nega 88% dos Habeas Corpus motivados pela Covid-19’, Conjur, www.conjur. com.br/2020-jul-08/tj-sp-nega-88-habeas-corpus-motivados-covid-19. 6 T Ângelo, ‘Domiciliar é negada porque “só astronautas estão livres do coronavírus”’, Conjur, 1 April 2020, www.conjur.com.br/2020-abr-01/domiciliar-negada-porque-astronautas-livres-corona­virus; C Mendes, ‘Sabez avec quem tu parles, monsieur? O TJ-SP sabe’, Folha de S Paulo, 21 July 2020, www1.folha.uol.com.br/colunas/conrado-hubner-mendes/2020/07/sabez-avec-quem-tu-parlesmonsieur-o-tj-sp-sabe.shtml. 7 S Ramiro, ‘Agente de trânsito é condenada por desacato ao multar juiz no RJ’, Jornal Hoje, 5 November 2014, g1.globo.com/jornal-hoje/noticia/2014/11/agente-de-transito-e-condenada-pordesacato-ao-multar-juiz-no-rj.html. 8 At a dollar rate of R $4.00 (as of November 2019). 9 C Mendes, ‘A corrupção do Judiciário é institucional e não se confunde com corrupção do juiz’, Folha de S Paulo, 8 January 2020, www1.folha.uol.com.br/colunas/conrado-hubner-mendes/2020/01/acorrupcao-do-judiciario-e-institucional-e-nao-se-confunde-com-corrupcao-do-juiz.shtml. 10 L Mazza, P Lopes and R Buono, ‘Os Privilégios da Toga’, Piauí, 7 September 2020, piaui.folha. uol.com.br/os-privilegios-da-toga. 11 A Sadi, ‘Temer se reúne com Gilmar Mendes no Palácio do Jaburu’, G1, 12 November 2017, g1.globo.com/politica/blog/andreia-sadi/post/temer-se-reune-com-gilmar-mendes-no-palacio-dojaburu.ghtml; Veja, ‘Investigado no STF, Temer visita Cármen Lúcia’, Veja, 15 March 2018, veja. abril.com.br/politica/investigado-no-stf-temer-visita-carmen-lucia/.

Institutional and Personal Judicial Guarantees  81 Federal Supreme Court could be identified among those occupying the Ministry of Justice,12 the office of the Prosecutor General of the Republic and the presidency of the Supreme Justice Tribunal. These different cases show that Brazilian courts and judges have a peculiar way of acting and participating in an environment that does not seem to accord to the standards defined by the 1988 Constitution. Although the constitutional text provides for a few institutional and individual agency patterns, several of these provisions depend on a 1979 Act.13 Procedures to oversee the accountability related to the duties that the office entails occur in agencies connected to the tribunal to which each judge is linked, the Corrective Magistrate (Corregedoria-Geral). Constitutional Amendment 45 of 2004, the so-called judicial branch’s reform, created the National Council of Justice to improve the instruments for overseeing judges and courts. After 16 years, however, little has changed, though important initiatives, like collective efforts to reduce the number and length of lawsuits, as well as to deal with the mass incarcerated population, were put into place. Concerning effective accountability, the results of the National Council of Justice are disappointing. Firstly, it must be pointed out that the 1988 Constitution provides hard requirements for a judge to be expelled from office – there must be a lawsuit ruled by the court to which he or she is linked deciding upon their expel. The other penalties are displacement, paid availability and retirement with salaries. Secondly, the National Council of Justice adopted a case law that enhanced insulation and independence instead of effective oversight. Less than 0.5 per cent of the cases brought before the Council resulted in a penalty. A judge who detained a 15-year-old female together with 30 male inmates was only punished with suspension from office with salary for two years. It took nine years for the case to be finally ruled upon.14 There are several examples of judges and courts cooperating in advancing the 1988 Constitution playbook. However, there are also salient cases in which

12 Both Sérgio Moro and his successor in the Minister of Justice, André Mendonça, were names that circulated to fill vacancies in the Federal Supreme Court. Sérgio Moro conflicted with the president probably due to its potential as a candidate for the presidency. The president of the Brazilian Supreme Justice Tribunal issued a writ of habeas corpus in favour of the house arrest of a close tie to Bolsonaro’s family and allegedly former milícia member, Fabrício Queiroz. The motive was the increased chances for him to be infected by the coronavirus – whereas the same treatment could not be applied to the majority of the incarcerated people in Brazil. Curiously, he also issued a writ of habeas corpus for the wife of the defendant who was a fugitive (T Phillips, ‘Brazilian police arrest Bolsonaro ally in corruption inquiry’, The Guardian, 18 June 2020, www.theguardian.com/ world/2020/jun/18/brazilian-police-arrest-bolsonaro-ally-in-corruption-inquiry; Conjur, ‘Noronha concede domiciliar a Fabrício Queiroz e sua mulher’, 9 July 2020, www.conjur.com.br/2020-jul-09/ noronha-concede-domiciliar-fabricio-queiroz-mulher). 13 The so-called National Magistrates Organic Law, the Complementary Law 35 of 1979 (see www.planalto.gov.br/ccivil_03/leis/lcp/lcp35.htm, Portuguese version). 14 F Kerche, V Oliveira and C Couto, ‘The Brazilian National Councils of Justice and Public Ministry as Instruments of Accountability’ (2020) 54 Brazilian Journal of Public Administration 1.353.

82  Institutional and Personal Judicial Guarantees judges generally refuse more accountability, receive generous salaries, go into political matters and expect to dictate a general morality conceived according to their views. This chapter aims to present the institutional features that cooperated to facilitate the Brazilian judiciary’s rise as an important actor in both the political crisis and the constitutional erosion process. The first topic explores the low capacity for comprehensive institutional reform after the 1988 Constitution. The debate on corporativist guarantees illuminates the argument about the inability of these public servants to deal with an unequal reality. The relationship of the judicial branch with mega-politics is explored through an analysis of the so-called Operation Car Wash. The leading judge in this investigation serves as a case study and shows the quick and direct engagement with politics under Bolsonaro’s Government as well as the contradictions for advancing measures against corruption under his presidency. I.  AGAINST THE TRANSITION: THE LACK OF EFFICIENT JUDICIAL INSTITUTIONAL REFORMS

Brazilian judicial authorities had a significant role in the deliberations that led to the design of the 1988 Constitution. Appointed by dictator Ernesto Geisel (1974–1979), Federal Supreme Court Justice Moreira Alves presided over the first Constituent Assembly session, stating that this was the final term of a ‘revolutionary’ cycle, as Institutional Act Nº 1 of 1964 and its supporters described the coup.15 Relying on the Constituent Assembly of 1987–1988 databases, Alexandre Carvalho investigated how the cloak of impartiality masked the increase of corporative benefits and the absence of profound changes in the judicial institutional design. One must consider the lack of profound reforms in light of how the dictatorship of 1964–1985 shaped the judiciary.16 It is crucial to recollect that, before the Constituent Assembly, a ‘Commission of Intellectuals’ was formed by ex-President José Sarney to provide a first draft of the constitution (which was, ultimately, discarded, as it was mentioned in chapter one). The distinctive feature of the Commission was that it integrated 32  lawyers among its total of 49 intellectuals. Moreover, the Constituent Assembly members can be similarly characterised: 43.5  per  cent had a legal education. That composition shows the impact that this kind of education had in Brazilian political life. Additionally, the Federal Supreme Court participated actively in the process, sometimes as an arbiter and sometimes as an actor with direct interests, prompting a ‘juridification’ of the process which had significant consequences, especially for the design of the three branches of government. 15 L Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 (Brasília, Câmara dos Deputados, Edições Câmara 2016) 205. 16 A Carvalho, ‘Juscorporativismo: os juízes e o judiciário na Assembleia Nacional Constituinte’ (2017) 114 Revista Brasileira de Estudos Políticos 31. See V Schinke, Judiciário e Autoritarismo: Regime Autoritário (1964–1985), Democracia e Permanências (Rio de Janeiro, Lumen Juris, 2016).

Against the Transition  83 Specifically, concerning the structure of the judicial branch in the 1988 Constitution, few essential distinctions were made between the judicial institution and its agents. Most of the time, problems such as the volume of lawsuits and the lack of a proper structure appeared as part of the same issue: to guarantee independence. A general discourse on academic education and moral superiority, which was also used by other public servants, such as prosecutors and public attorneys, could be found at that time, according to Carvalho.17 The composition of the apex court in Brazil was a subject in the debate. Of 11 Federal Supreme Court justices, nine had been appointed by the military. Nonetheless, they did not face obstacles in keeping their seats in the Court. These Justices opposed the proposal on creating a constitutional court in Brazil and transforming the Federal Supreme Court into a court of final appeals, leaving the constitutional review to that first court. Such proposal also opposed executive interests, since the president’s power to appoint justices would be shared with the other branches. However, the idea of an external accountability control of magistrates’ activities received severe criticism from judges’ associations. To have a complete picture, one must bear in mind that, from 1977 onwards, there was already a National Magistrates Council, composed of seven justices from the Federal Supreme Court, which exercised a type of internal control. The new constituent proposal included external control. The magistrates’ associations accused the proponents of trying to implement in Brazil something similar to what occurred in the regimes of Hitler, Stalin or Idi Amin.18 Afterwards, internal control was only created in 2004 with Constitutional Amendment 45. The National Justice Council was composed mostly of judges and was established as part of the judicial branch. In contrast, during the Constituent Assembly of 1987–1988, proposals on administrative and budgetary judicial autonomy were supported by all judges in such a salient way that newspapers editorials criticised what they called a ‘corporativist deviation’. The commission in the Constituent Assembly responsible for the systematisation of the constitution project did not deliberate on the constitutional court’s creation. Proposals that tried to pluralise the way the members of the Federal Supreme Court were nominated were rejected, as well as those that established fixed terms for the judgeships in the apex court. Propositions on the free nominations of public servants managed by the judges and the integral retirement benefits were approved. Brazil ‘seemed to be on the verge of serious democratic decay, with the failure of the judiciary a critical factor contributing to the declining faith in the rule of law’. Prillaman’s diagnosis is from 2000, but it could also be from 2020.19 17 A Carvalho, ‘Juscorporativismo: os juízes e o judiciário na Assembleia Nacional Constituinte’ (2017) 114 Revista Brasileira de Estudos Políticos 31, 43. 18 ibid, 50. 19 W Prillaman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law (Westport, Connecticut/London, Praeger 2000) 76.

84  Institutional and Personal Judicial Guarantees Although the Constitutional Amendment 45 of 2004 channelled diverse pressures for a judicial reform that came from the 1990s, little has changed in the Brazilian judiciary. Prillaman saw the Constituent Assembly of 1987–1988 as a judicial reform, though far from a significant one. The 1960s and 1970s projected in the general imagination judges and courts as being elitists, irrelevant and distant from social and economic interactions. During the dictatorship, questions of relevance were brought to a captured Federal Supreme Court through a lawsuit (avocatória) that directly brought actions in other courts in the country. Although Prillaman’s view on the Constituent Assembly of 1987–1988 lacks the democratic background, he is correct that little was done to recalibrate the judicial branch. All of those interests brought to the Constituent Assembly of 1987–1988 generated a stronger, non-reformed and corporative judicial branch that would have to address a new context, guided by a democratic constitutional document. The 1990s saw independence being consolidated without any accountability – as if these values were genuinely opposed.20 The general public associated autonomy on budgetary matters with inefficiency. Polls in the mid-1990s showed that 73 per cent of Brazilians had little or no confidence in the courts. ‘Entrenched bureaucratic oligarchy’ was one of the standard terms used to describe them.21 The same guarantees, which were often read as privileges, were already in place: 60 days of vacations annually, free furnished apartments, a gasoline allowance and so forth. The Federal Supreme Court only challenged the various accusations of nepotism through a binding ruling in 2008.22 In 1999, judges prompted work stoppages against a senatorial decision to start an investigation on corruption cases. Again, magistrates accused representatives of ‘Nazism’. Also in the 1990s (a situation not different from the 1970s or the end of the 2010s), the slowness and inefficiency of the criminal justice system in dealing with violence in Brazil generated tolerance towards vigilante groups (in some cases, the milícias) or the rise of ‘law and order’ politicians.23 II.  CORPORATIVIST GUARANTEES

As the 1988 Constitution states, justices and judges are appointed by the president in the so-called ‘superior courts’ and in one-fifth of the offices in the federal appellate courts. One-fifth of judges in state tribunals of justice are appointed by state governors and other judges that are approved in public tests organised by 20 Traditional scholarship on judicial accountability tends to adopt this oppositional reading of independence and accountability. For an alternative proposal, see E Meyer and T Bustamante, ‘Judicial Accountability’ in R Grote, F Lachenmann and R Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford, Oxford University Press, forthcoming). 21 Prillaman, The Judiciary and Democratic Decay in Latin America (2000), 85. 22 Supremo Tribunal Federal, Súmula Vinculante 13, judgment of 21 August 2008, jurisprudencia. stf.jus.br/pages/search/seq-sumula761/false. 23 Prillaman (n 19), 96.

Corporativist Guarantees  85 the federal and state courts. Judges can also achieve office in tribunals through career progress. This last situation represents most of the Brazilian magistrates. In a census from 2014, with data collected in 2013, there were 16,812 magistrates in office. The average age of the magistrates was 44.7 years old; 64.1 per cent were men and 35.9 per cent women; 82.8 per cent were white, 14.2 per cent seen themselves as of mixed races, 1.4 per cent were Black; most of them studied in private institutions.24 A minority declared they were able to accomplish their activities, given the scale of their job. Less than one-third of them were satisfied with the work they did, considering their age.25 Numbers in 2018 showed that there was no improvement in those fields, according to a survey from the Brazilian Magistrates Association.26 Over 63  per  cent of judges were men. In appeals courts (federal and state levels), 78.8 per cent were men, while 21.2 per cent were women. In the superior courts (Federal Supreme Court and Superior Court of Justice) the difference was scandalous: 90.9 per cent were men and 9.1 per cent were women. Considering race, 79.1 per cent of the Brazilian first-degree judges are white in a country where 56.1 per cent of the population recognise themselves as Black.27 More than twothirds of judges owned property and yet they still received housing benefits, as a general rule, between 2014 and 2018. The rate of judges who had or have a father with an undergraduate course, a sign of wealth in the family, was 39 per cent. In the courts of appeal, 70.9 per cent of the magistrates think the use of robes is a tradition that should last. On the work of accountability organs, only one-third have a strong opinion on the fulfilment of their roles in overseeing conducts and infractions. Interestingly, 71.1 per cent of the judges interviewed in the survey agreed that measures that value the human being should be applied in the prison system. But only one-third of them are convinced that custody hearings, a procedure recently adopted in Brazil for imprisonments made in flagrante delicto, is an essential procedural mechanism. The majority of the judges agree that they 24 51.2% studied law in private institutions and 48.8% in public institutions. Less than 85.9% engaged in educational activities as professors or teachers, a number that indicates a major distance between the judiciary and academy. 25 Conselho Nacional de Justiça, Censo do Poder Judiciário: VIDE – Vetores Iniciais e Dados Estatísticos (2014), www.cnj.jus.br/images/dpj/CensoJudiciario.final.pdf. 26 L Vianna, M Carvalho and M Burgos, Quem Somos: A Magistratura que Queremos (Rio de Janeiro, Associação dos Magistrados Brasileiros, 2018). 27 This data points to the problem of Brazilian judges adequately ruling on cases in which race is an important factor to consider. The problem arises, however, when judges use terms that are blatantly racist. In a criminal case ruled on August 2020, a judge from the state of Paraná condemned a defendant for criminal organisation, not only mentioning that his nickname would be a racist phrase (neguinho), but also that he would be ‘for sure a member of a criminal group, on grounds of his race’ (‘seguramente integrante do grupo criminoso, em razão de sua raç[a]’). The judge’s conduct prompted an investigation by the National Judicial Council. See G1 and RPC Curitiba, ‘CNJ determina apuração sobre conduta de juíza que citou raça ao condenar réu negro por organização criminosa’, G1, 12 August 2020, g1.globo.com/pr/parana/noticia/2020/08/12/ corregedoria-geral-do-parana-abre-investigacao-sobre-caso-de-juiza-que-citou-raca-ao-condenarreu-negro-por-organizacao-criminosa.ghtml. For the complete ruling, see www.conjur.com.br/dl/ negro-razao-raca-integra-grupo.pdf.

86  Institutional and Personal Judicial Guarantees shall apply directly constitutional principles in cases where there is no specific legal rule. They also think that those principles can be evoked to compel other branches to enforce health and education rights. To the question of sensitive matters that were not decided by a legislative majority and were to be creatively ruled by courts, one-third of the judges strongly disagree on this role – the other judges tend to agree. At the time of Dilma Rousseff’s impeachment process, the Federal Supreme Court Chief Justice was attempting to increase the already high judiciary wages of its public servants. The Chief Justice asked for the support of the Chamber of Deputies immediately after that body authorised Rousseff’s impeachment. The wages would increase, on average, from 16.5 per cent to 41.47 per cent.28 Therefore, in a country where judges received on average US $14,241 in 2015, and considering all reparatory benefits, 87  per  cent of total expenditure was used on wages and other benefits to staff, comprised of magistrates and public servants.29 It is an important fact to consider that, even in a political and economic crisis, public servants in the judicial branch would receive another salary increase of up to 41 per cent.30 Nonetheless, the most incredible move to keep these wages high came from the same judicial branch in discussions about the range of a controversial rule of the 1979 National Magistrates Organic Law granting housing benefits for judges. Six lawsuits concerning this issue were filed in the Federal Supreme Court. Federal judges argued that, since only state judges, members of the superior courts and prosecutors received the housing benefits, there was a violation of the constitutional norm of equality. Justice Luiz Fux was the lawsuit rapporteur. He became the Federal Supreme Court Chief Justice for the 2020–2022 term. Justice Fux decided that there was a violation of the principle of equality and determined that all Brazilian judges should receive housing benefits, except if there was official housing in the city where the judge should exercise this office.31 So, a single decision on the six lawsuits on 7 September 2014 granted individual benefits of, on average, US $1,355, which led, in July 2015, to expenses of at least US $266 million, all provided by public resources.32 28 T Resende and R Cunto, ‘Lewandowski Obtém Apoio de Líderes na Câmara ao Reajuste do Judiciário’, Valor Econômico, 26 April 2016), www.valor.com.br/politica/4539721/lewandowskiobtem-apoio-de-lideres-na-camara-ao-reajuste-do-judiciario. The average dollar rate in April 2016 was R $3.62. 29 UOL, ‘Judiciário fica mais caro e leva 1,3% do PIB; juiz custa R$46 mil/mês’, UOL Notícias, 17 October, 2016, noticias.uol.com.br/politica/ultimas-noticias/2016/10/17/judiciario-fica-mais-caroe-leva-13-do-pib-juiz-custa-r-46-milmes.htm. 30 F Góis, ‘Temer sanciona sem vetos projeto que concede aumento de 41% a servidores do Judiciário’, Congresso em Foco, 21 July, 2016, congressoemfoco.uol.com.br/noticias/temer-sancionasem-vetos-projeto-que-concede-aumento-de-41-a-servidores-do-judiciario. 31 Federal Supreme Court, AO 1.773 (18 September 2014), www.stf.jus.br/portal/processo/ verProcessoPeca.asp?id=261622279&tipoApp=.pdf. 32 See F Recondo, ‘Por liminar, auxílio-moradia de juízes já custa R$860 milhões’, Jota, 9 March 2015, www.jota.info/justica/por-liminar-auxilio-moradia-de-juizes-ja-custa-r-860-milhoes-09072015. The dollar rate on March 2015 was R $3.01.

Corporativist Guarantees  87 Justice Luiz Fux kept the lawsuit in his office drawer – term limits for Brazilian judges do not imply proper sanctions. He refused for years to take the case to the Federal Supreme Court full bench. The lawsuit was finally docked to be tried on 22 March 2018. In the last moments, though, the Brazilian Magistrates Association (Associação dos Magistrados Brasileiros) asked Justice Fux to submit the procedures to an arbitration panel conducted by the federal administration – which, in the end, recognised the impossibility of an agreement.33 On 26 November 2018, Justice Fux revoked his cautionary decisions. Again, the first argument presented by him related to the conditions of impartiality and independence of judicial duties. He noted that, from 2005 onwards, magistrates were to be paid a unique salary, called a subsidy (subsídio). There would be, nonetheless, exceptions: the reparatory parcels, such as the housing benefit for those who did not have a functional property offered by the judicial administration. In this sense, the payment would be no ‘unreasonable privilege’. Why, then, did Justice Luiz Fux revoke his cautionary measures? The reason is pragmatic, and is one of the bases of his last ruling. In 2018, the National Congress approved two Acts, increasing the subsidies for the justices of the Federal Supreme Court and the Prosecutor-General of the Republic (Procurador-Geral da República) by 16.38  per  cent. These are the constitutional ceilings for all salaries and subsidies of public servants in Brazil. That increase transformed Justice Luiz Fux’s legal mind: now, he should use antifoundational (law with social aims), contextual and consequential arguments. Quoting Richard Posner, he defended his ruling as pragmatic. Although the housing benefit was due, the new subsidy defined by the 2018 Acts would generate huge financial impacts – as if they were not already in action because of his 2014 ruling.34 In the terrain of pure politics, what happened is that Justice Luiz Fux delayed the deliberation by the Federal Supreme Court full bench on his cautionary measures. He did so until the National Congress approved the Acts that satisfied what Brazilian judges saw as sufficient payment for their impartial and independent duties. Luciano Da Ros and Matthew Taylor developed critical research on the Brazilian judicial branch structure. The study was entitled ‘Opening the Black Box: Three Decades of Reforms to Brazil’s Judicial System’ and the results of the work provide a comparative glimpse of the costs and impacts of judicial activity.35 In 2013, the total amount of expenses for judicial bodies represented US $20.1 billion,36 a value equal to the GDP of 12 individual Brazilian states. 33 See A Pompeu, ‘Fux retira processos sobre auxílio-moradia da pauta do Plenário do Supremo’, Conjur, 21 March 2018, www.conjur.com.br/2018-mar-21/fux-retira-processos-auxiliomoradia-pauta-pleno-stf. 34 See Federal Supreme Court, AO 1.773, judgment of 26 November 2018, www.stf.jus.br/arquivo/ cms/noticiaNoticiaStf/anexo/AO1773auxiliomoradia.pdf. 35 The first results can be found at L Ros, ‘O custo da Justiça no Brasil: uma análise comparativa exploratória’ (2015) 9 Observatory of Social and Politcal Elites in Brazil Newsletter 1. 36 At a dollar rate of R $3.09 in 2017.

88  Institutional and Personal Judicial Guarantees In other words, each Brazilian citizen would have to pay approximately US $130.32 for the annual cost of judicial adjudication. In a gross comparison, in Switzerland, this value is US $142.87; in Germany, US $120.49; in Spain, US $31.30; and in Argentina, US $19.10. Staff expenditures in the Brazilian judiciary equal to 89  per  cent of the total budget. Judges from the state of Minas Gerais start their careers with a monthly wage of US $8,473, which can reach up to US $9,883. Beyond that ‘basic value’, they receive food benefits (US $258) and health benefits (US $847.30) every month – and used to receive housing benefits (US $1,418). In the early stages of their careers, judges in Minas Gerais State can have a total monthly salary of US $10,996.30. The problem is not far different from other juridical careers, such as prosecutors and public solicitors. In a country where, in 2016, the average income was US $397.28 and the GINI coefficient was, in 2013, 0.50, it is hard not to consider the judicial branch an economic capital elite.37 These data indicate that there can be magistrates in Brazil who do not see themselves as ordinary public servants. Brazilian sociologist Jessé Souza argues there is a ‘juridical caste’ in Brazil. To reach this conclusion, he relies on Pierre Bourdieu and Charles Taylor’s theories.38 Based on a division of classes in Brazilian society that uses as criteria not only economic or financial capital, but also social and cultural capital, it is possible to connect contemporary judges, prosecutors and other officers to the highest ranks of the community. The juridical caste would be the direct heirs of a privileged class that can buy its sons time to study and prepare for the challenging and competitive public tests that create pathways to a position as a judge. This juridical caste has, in its corporatist ethics, two main elements. Firstly, the competitive public examinations to be admitted in the careers legitimise the wide variety of benefits and privileges that judges and prosecutors receive (something like the mandarins in ancient China). Secondly, this caste must justify itself by telling people they are doing something important, such as being the guardians of Brazilian morals. If the second element has a clear connection with what is occurring with criminal and procedural guarantees in Brazil, the first element, concerning the privileges, will be partially protected by other government branches and partly by the judiciary itself.

37 Instituto Brasileiro de Geografia e Estatística, IBGE divulga o rendimento domiciliar per capita 2016, ftp://ftp.ibge.gov.br/Trabalho_e_Rendimento/Pesquisa_Nacional_por_Amostra_de_ Domicilios_continua/Renda_domiciliar_per_capita/Renda_domiciliar_per_capita_2016.pdf. A  recent poll based on the income tax statements of professionals showed that notary public’s officers had the major average month revenues (US $19,0640, followed by prosecutors (US $9,887) and judges (US $9,569). The dollar rate here is R $5,41. See D Alvarenga, ‘Dados do IR mostram profissões com maior renda média e mais isenções’, G1, g1.globo.com/economia/noticia/2020/07/15/ dados-do-ir-mostram-profissoes-com-maior-renda-media-e-mais-isencoes.ghtml. 38 J Souza, A Radiografia do Golpe: Entenda Como e Por Que Você Foi Enganado (São Paulo, LeYa, 2016) 121. See also J Souza, A Tolice Da Inteligência Brasileira (São Paulo, Casa da Palavra, 2015).

Operation Car Wash: Taming Politics through Judicial Discourse  89 III.  OPERATION CAR WASH: TAMING POLITICS THROUGH JUDICIAL DISCOURSE

Operation Car Wash (Operação Lava Jato) was brought to light in the context of the Worker’s Party’s (PT, Partido dos Trabalhadores) 13 years of government. The background to this is the accusations of corruption and bribery against the Worker’s Party in the well-known case from 2005, Mensalão. High-level government members bribed deputies in exchange for their votes, beyond committing money laundering and other crimes. These activities were subsequently condemned by the Federal Supreme Court in 2012.39 The main party actors – accompanied by several other Brazilian factions, such as the MDB (Movimento Democrático Brasileiro, Brazilian Democratic Movement Party), the PP (Partido Progressista, Progressive Party) and the PSDB (Partido da Social Democracia Brasileira, Brazilian Social Democracy Party) – were cited, investigated and prosecuted afterwards, in Operation Car Wash.40 Operation Car Wash was, indeed, huge. As the Prosecutor General’s office describes, it was the primary initiative for fighting corruption and money laundry in Brazil.41 ‘Car Wash’ relates to petrol stations, which were initially used for money laundering. It involved bribery in various contracts with Petrobras, Brazil’s giant public oil company, which spread through other state investments. Investigations took place in at least three Brazilian states and superior courts and 12 countries. Building contractors such as Odebrecht allegedly acted to defraud the public through breaking the rules of public auctions so that only they benefitted. These exchanges purportedly financed electoral campaigns. In the city of Curitiba alone, where the operation started, 263 pre-trial imprisonments occurred, US $890 million was recovered for the public treasury and it was estimated that the reappropriation could reach US $3.19 billion.42 Nonetheless, Brazilian criminal procedure was severely transformed, guarantees enshrined in the 1988 Constitution were made flexible, dozens of companies went bankrupt and job positions were ended without proper conditions for constructors to rebuild themselves. The Brazilian political system suffered a huge impact. Most of the time, the popular belief that politics is

39 See BBC News, ‘Brazil Mensalão Trial: Ex Lula Aide Dirceu Condemned’, BBC News, 13 November, www.bbc.com/news/world-latin-america-20305926. In the case of ex-President Lula’s former Minister, José Dirceu, the Federal Supreme Court referred to a controversial interpretation of the German Criminal Law, the control theory of perpetration, which the branch entitled ‘functional domination of the act’. Professor Claus Roxin was the person in Germany responsible for systematising the theory. See generally C Roxin, ‘Crimes as Part of Organized Power Structures’ (2011) 9 Journal of International Criminal Justice 193. The Federal Supreme Court perspective helped subsidise ex-President Lula condemnation in the Operation Car Wash. 40 See E Addley, ‘Why’s Brazil Government in Crisis? The Guardian Briefing’, The Guardian, 17 March 2016, www.theguardian.com/world/2016/mar/17/brazil-government-crisis-briefing-dilmarousseff-lula-petrobas. 41 See www.mpf.mp.br/grandes-casos/lava-jato/entenda-o-caso. 42 Data from March 2020, with a dollar rate of R $4.48.

90  Institutional and Personal Judicial Guarantees always related to corruption was severely deepened – which paved the way for the rise of populism. This massive corruption investigation also led influential politicians act to create a safer situation for themselves in the future. The speaker of the Chamber of Deputies, Eduardo Cunha (who stood in office between 2015 and 2016, authorised Rousseff’s impeachment and had links to ex-President Michel Temer), was suspended from his legislative chairman position by the Federal Supreme Court. He was accused of intervening in the investigations related to Operation Car Wash. Cunha lost his mandate after a decision by the lower house and was finally imprisoned for corruption and money laundering, being condemned to 15 years in prison by Federal Judge Sérgio Moro.43 Analysts argue that the earlier Federal Supreme Court ruling to imprison a former senator was one of the main catalysts of the legislative backlash (see chapter four).44 Additionally, a former Temer minister was recorded discussing with an Operation Car Wash informant the need for an agreement to remove Dilma Rousseff and put Michel Temer in her place. He even mentioned having information from Federal Supreme Court justices saying that while Rousseff was in power, the corruption investigations would continue.45 IV.  THE PERSONIFICATION OF OPERATION CAR WASH

It is not the aim of this book to delve into the traditional judicial political controversies of American political science. The lines of investigation of the attitudinal,46 historic–institutional or strategic models,47 however sharply ­different,48 could be tested for Brazilian judges. Nonetheless, the scarcity of

43 See J Watts, ‘Speaker of Brazil’s Lower House Eduardo Cunha Suspended’, The Guardian, www. theguardian.com/world/2016/may/05/speaker-of-brazils-lower-house-eduardo-cunha-suspended; J Watts, ‘Brazilian Politician Who Led Rousseff Impeachment Is Expelled from Office’, The Guardian, 5 May 2017, www.theguardian.com/world/2016/sep/13/eduardo-cunha-brazilian-politician-impeachmentdilma-rousseff-expelled; M Sandy, ‘Brazilian Politician Who Led Rousseff Impeachment Arrested on Corruption Charges, The Guardian, 19 October 2017, www.theguardian.com/world/2016/ oct/19/eduardo-cunha-arrested-corruption-charges-brazil; The Guardian, ‘Brazilian Politician Who Orchestrated Ousting of Rousseff Sentenced To Prison’, The Guardian, 30 March 2017), www.theguardian.com/world/2017/mar/30/brazil-eduardo-cunha-guilty-prison-dilma-rousseffimpeachment. 44 See Reuters, ‘Senior Brazilian Senator and Billionaire CEO Both Arrested for Corruption’, The Guardian, 26 November 2015, www.theguardian.com/world/2015/nov/26/senior-braziliansenator-and-billionaire-ceo-arrested-for-corruption. 45 See J Watts, ‘Brazil Minister Ousted After Secret Tape Reveals Plot to Topple President Rousseff’, The Guardian, 25 November 2015, www.theguardian.com/world/2016/may/23/brazil-dilma-rousseffplot-secret-phone-transcript-impeachment. 46 See J Segal and H Spaeth, The Supreme Court and the attitudinal model revisited (Cambridge, Cambridge University Press, 2002). 47 See W Murphy, Elements of Judicial Strategy (Chicago, University of Chicago Press, 1964). 48 See generally L Epstein and J Knight, ‘Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead’ (2000) 53 Political Research Quarterly 625; L Epstein, W Landes and R Posner,

The Personification of Operation Car Wash  91 data is the first hurdle.49 The second hurdle is related to independence and its dimensions. On the institutional level, the distorted discourse of unbounded independence generated low accountability for the judicial branch. On the personal level, independence provoked instrumental coherence: judges abide by jurisprudence generally, as it is useful for career progression purposes. On the two levels, the sense of esprit de corps was able to protect judges that seemed to comply with the general view that the judicial branch and its members have of their images. Sérgio Moro was not the appropriate representation in persona of the Brazilian judicial branch. Consider, for instance, the existence of professional associations concerned with independence but, mostly, with the effectiveness of the rule of law and the democracy – besides diverse rulings that were able to strengthen the 1988 constitutionalism (see chapter eight).50 It is remarkable, however, that on several occasions other professional associations took a public stance in favour of the political positions of their previous member.51 Sérgio Moro’s practices and rulings can be easily associated with Operation Car Wash and also present problematic aspects not so often contended inside the Brazilian judicial branch. This is significant because it portrays a side of the Brazilian judiciary that has standard features not adequately derived from the 1988 Constitution: corporativism, moralism to be generally imposed, lack of accountability and excessive publicity. As historian Perry Anderson pointed out, Operation Car Wash, both by judicial rulings and measures by federal prosecutors, selectively leaked information to media outlets. This information amplified the construction of common enemies, the polarisation of politics and the space for ‘new’ proposals. As Anderson describes it, Operation Car Wash deepened measures unusual in Brazilian judicial activities. A general and unlimited use of collaboration The behavior of federal judges: a theoretical and empirical study of rational choice (Cambridge, MA, Harvard University Press, 2013); L Baum, The Puzzle of Judicial Behavior (Ann Arbor, University of Michigan Press, 2009). 49 However, there are few exceptions that do not dive into the personal and institutional characteristics of the judges. See, for instance, the project Supremo em Números (Federal Supreme Court in Numbers), from Fundação Getúlio Vargas: www.fgv.br/supremoemnumeros/artigos.html. 50 Consider, for instance, the work of the Associação Juízes para a Democracia (Judges for Democracy Association, see www.ajd.org.br), that defends in its statute the constitutional democratic state, the democratisation and the transparency of the judicial branch, as well as the rights of minorities and the poor. 51 In 2018, the Associação dos Magistrados Brasileiros (Brazilian Magistrates’s Association) published a note supporting the indication of Sérgio Moro as Bolsonaro’s Minister of Justice (see Associação dos Magistrados Brasileiros, ‘Nota Pública sobre a indicação do juiz Sérgio Moro’, Associação dos Magistrados Brasileiros, 1 November 2018, www.amb.com.br/nota-publica-sobreindicacao-do-juiz-sergio-moro). In 2016, the Federal Judges Brazilian Association (Associação dos Juízes Federais do Brasil) also criticised former President Lula for appealing to the UN Human Rights Committee against Sérgio Moro’s rulings (Associação dos Juízes Federais do Brazil, ‘Nota sobre a decisão de Lula de recorrer à ONU contra Sérgio Moro’, Associação dos Juízes Federais do Brazil, 29 July 2016, www.ajufe.org.br/imprensa/notas-publicas/7012-nota-sobre-a-decisao-de-lulade-recorrer-a-onu-contra-sergio-moro).

92  Institutional and Personal Judicial Guarantees agreements by the defendants occurred. Long periods of pre-trial detention that usually targeted poor people were widened to encompass white-collar crimes. There were also pressure to anticipate imprisonments before a final ruling in the criminal proceedings, relaxing the constitutional presumption of innocence provisions.52 As his profile in the Ministry of Justice stated,53 Sérgio Moro was a federal judge for 22 years and a professor at Brazilian universities. He acted as an auxiliary judge to the Federal Supreme Court in 2012, published law books and received the title of Doctor of Laws, honoris causa, by the University of Notre Dame. Moro had published an academic piece in 2004 emphasising the role of public opinion in the investigation and punishment of white-collar crimes. The exemplary inquiry in that piece was the Italian operation Mani Pulite. He declared that constitutional presumption of innocence right had an ‘excessively liberal reading’ and should not proscribe ‘alternative interpretations’. Moro emphasised the role played by public opinion in supporting the judicial activities of investigating and punishing white-collar crimes. Not only were there guarantees of independence, but also the investigation’s publicity and the support of the majority of the population could favour new evidence. He advocated that, if the legal conditions for a pre-trial detention warrant were present, there would be no ‘moral obstacles’ to keeping the accused imprisoned to obtain a confession or a collaboration. Instead, the pre-trial detention would be a sign of the judicial system’s seriousness.54 From 2014 onwards, Operation Car Wash attracted widespread media attention. In a disputable interpretation of judicial powers, Federal Judge Sérgio Moro concentrated all the investigations and criminal lawsuits into his hands. The vast number of Brazilian federal prosecutors (Ministério Público Federal) investigations and accusations indicated a very close relationship among the Federal Police (Polícia Federal), the fiscal authorities (Receita Federal) and Judge Moro. The sense was very similar to the one he advocated in 2004. Moro argued against the idea that the judicial branch should only be an evidence addressee, allowing it to participate in its collection. According to a Brazilian law website, pre-trial detentions related to Operation Car Wash lasted an average of 281 days (nine months). At least 81 people were arrested. Two people were imprisoned for more than 1,000 days without a final judgment of their appeals by a tribunal.55 The 1988 Constitution guarantees a fundamental right to a ‘reasonable process duration’ and there is no explicit 52 P Anderson, Brazil Apart: 1964–2019 (London and New York, Verso, 2019) 196. 53 See justica.gov.br/news/perfil-da-equipe.pdf. 54 See S Moro, ‘Considerações sobre a operação mani puliti’ (2004) 26 Revista Cej 61. See also M Lacombe and J Vieira, ‘A estratégia institucional do Juiz Sérgio Moro descrita por ele mesmo’, Jota, 28 March 2016, jota.info/artigos/estrategia-institucional-juiz-sergio-moro-descrita-por-ele-mesmo-28032016. 55 See P Canário, ‘Criticadas por Gilmar, preventivas da “lava jato” duram em média 9, 3 meses’, Conjur, 7 February 2017, www.conjur.com.br/2017-fev-07/criticadas-preventivas-lava-jato-durammedia-93-meses.

From the Bench to Politics  93 provision on this issue in the Criminal Procedure Code, which requires the courts and authors adopt an arbitrary parameter of 169 days.56 Such length is equivalent to the sum of the deadlines for general criminal procedures. Yet, for Operation Car Wash, that pattern does not apply, since writs of habeas corpus were denied in most of the cases.57 V.  FROM THE BENCH TO POLITICS

In the middle of this vast operation, a collaboration agreement was signed by the former owner of a private constructor that accused ex-President Lula of negotiating to acquire a flat on Brazil’s coast in exchange for contracts with Petrobras. On 4 March 2016, former Judge Sérgio Moro first issued a bench warrant for Lula to testify before the Federal Police.58 The proceedings were controversial. There was nothing in the Criminal Procedure Code that stated that someone who had not been previously indicted should be forcefully brought before the police authority to testify.59 In 2018, the Federal Supreme Court ruled that bench warrants to bring an accused person not previously subpoenaed for testimony forcefully were invalid as per the 1988 Constitution.60 Former Judge Sérgio Moro caused perplexity when he authorised the publication of conversations between ex-President Luís Inácio Lula da Silva and 56 A recent reform to the Criminal Procedural Code limited the time of pre-trial detention in the form of preventive detention (prisão preventiva) to 90 days. After this period, the judge should review the legal conditions of the detention (see Criminal Procedural Code, Article 316, www.planalto.gov.br/ccivil_03/decreto-lei/del3689compilado.htm). The new provision sparked disputes in the Federal Supreme Court concerning the release of a defendant accused of drug traffic. A justice rapporteur ordered the liberation on 2 October 2020 to have his decision reviewed by Chief Justice Luiz Fux on 10 October 2020. The contradictory rulings form another chapter of the unresolved question of competences that should belong to a single justice and those that pertain to a panel or the full bench. See Federal Supreme Court, HC 191.836, judgment of 2 October 2020, portal.stf.jus. br/processos/detalhe.asp?incidente=6012107; and Federal Supreme Court, SL 1.395, judgment of 10 October 2020, portal.stf.jus.br/processos/detalhe.asp?incidente=6025676. 57 In April 2015, 204 habeas corpus lawsuits were filed, but only five were granted. See J Affonso, F Macedo and R Brandt, ‘Contra a Lava Jato, investigados pediram 204 habeas corpus, mas ganharam apenas dois’, 17 April 2015, O Estado de S Paulo, politica.estadao.com.br/blogs/faustomacedo/contra-a-lava-jato-investigados-pediram-204-habeas-corpus-mas-ganharam-apenas-dois. In a writ of habeas corpus ruled upon by the Superior Court of Justice, the justice rapporteur mentioned, albeit avoiding speaking in terms of an ‘exception judgment’, the need to recognise the ‘circumstances and peculiarities of the situation’, quoting another judge who classified Operation Car Wash as something singular in the last 50 years. Superior Court of Justice, HC 75.286, judgment of 14 November 2016, ww2.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&se quencial=1552055&num_registro=201602276315&data=20161114&formato=PDF. 58 L Nascimento, ‘Lula’s testimony not “proof of guilt”, says Judge Moro’, EBC Agência Brasil, 5 March 2016, agenciabrasil.ebc.com.br/en/politica/noticia/2016-03/lulas-testimony-not-proofguilt-says-judge-moro. 59 Articles 218 and 260 of the Brazilian Criminal Procedural Code provide for the situations of witnesses and the formally accused, something that did not happen at that time with Lula. 60 Federal Supreme Court, ADPF’s 395 and 444, judgment of 14 June 2018, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=749901068.

94  Institutional and Personal Judicial Guarantees ex-President Dilma Rousseff from the time she was in office. Moro allowed wiretapping measures when investigating supposed unjust enrichment acts practiced by Lula, an ex-President who, following Brazilian legislation, can be tried by any lower court judge.61 The date 16 March 2016 would be the landmark for Brazil’s political crisis. In the morning, former President Dilma Rousseff announced that Lula would be nominated as her chief of staff (Ministro da Casa Civil), an office responsible for political coordination, which is something that Rousseff’s second term effectively lacked. In the afternoon, the leading newspapers and television broadcasters were almost simultaneously publishing conversations in which Rousseff spoke about giving Lula a term of office that he could use in any situation.62 In his ruling, Judge Moro argued that there are constitutional rules regarding publicising matters related to crimes against public administration in Brazil. ‘Democracy in a free society demands that the governed know what public authorities are doing, even when they intend to act protected by the shadows’, Moro stated in his ruling. At the same time, Moro recognised that, once he was aware of the fact that ex-President Rousseff would nominate Lula as her chief of staff, the judge should relocate the process to the Federal Supreme Court, which the 1988 Constitution guarantees shall try ministers. Moro also evaluated Rousseff’s conversations, mentioning that he did not see any kind of criminal activities being perpetrated in a way that would demand the Federal Supreme Court’s jurisdiction. Only the apex court could carry out such an evaluation. Of course, the ruling would have political effects. Lula would be prevented from taking office by a Federal Supreme Court Justice, who wrote a cautionary and monocratic order in two lawsuits filed by Rousseff’s opposition political parties.63 Justice Gilmar Mendes, who is known for political interventions via rulings, public manifestations and other manoeuvres, agreed with the thesis of a ‘deviation of goals’ in the nomination, ignoring his own ideas about the suitability of that particular lawsuit and the political character of a minister’s indication.64 Incidentally, the decision was made on 18 March 2016, only two days after Moro’s leak to the press.

61 See 13th Federal Court of Curitiba, PEDIDO DE QUEBRA DE SIGILO DE DADOS E/OU TELEFÔNICOS 5006205-98.2016.4.04.7000/PR, s.conjur.com.br/dl/decisao-levantamento-sigilo.pdf. 62 See F Castro, S Nunes and V Netto, ‘Moro derruba sigilo e divulga grampo de ligação entre Lula e Dilma; ouça’, G1, 16 March 2016, g1.globo.com/pr/parana/noticia/2016/03/pf-libera-documentoque-mostra-ligacao-entre-lula-e-dilma.html; R Brandt, F Macedo and J Affonso, ‘Lava Jato pegou conversas de Lula e Dilma no telefone; ouça’, O Estado de S Paulo, 16 March 2016, politica.estadao. com.br/blogs/fausto-macedo/ouca-lula-e-dilma-no-telefone; F Coutinho, T Bronzato and D Haidar, ‘Dilma cai em escuta da PF em conversa com Lula. Ouça’, Época, 16 March 2016, epoca.globo.com/ tempo/noticia/2016/03/dilma-cai-em-grampo-da-pf-em-conversa-com-lula.html. 63 See Federal Supreme Court, MS’s 34.070 and 34.071, judgment of 18 March 2016, www.stf.jus. br/portal/processo/verProcessoPeca.asp?id=308995627&tipoApp=.pdf. 64 See E Meyer, ‘A Colcha de Retalhos de Gilmar Mendes’, Jota, 26 March 2016, www.jota.info/ opiniao-e-analise/artigos/colcha-de-retalhos-de-gilmar-mendes-26032016.

From the Bench to Politics  95 The Federal Supreme Court would further analyse the legality of Judge Moro’s decision: in the procedure, between other arguments, Moro would ask for apologies to the court.65 The Federal Supreme Court noted the unconstitutionality of the ruling, as it ignored rules on jurisdiction and violated the fundamental right to privacy and secrecy guaranteed in the 1988 Constitution. The judicial decision also infringed on Law 9.296 of 1996, which establishes that any taping not useful to the criminal investigation must be discarded.66 Of course, all the political consequences had already occurred, and none could be reversed. Much more complicated would be the way the Fourth Regional Appellate Court, to which Judge Moro was bound for administrative effects, ruled on a complaint filed at the Regional Corrective Magistrate. The procedure could suspend him from office and apply the proper disciplinary sanctions. Moro would have been found to have violated Fourth Regional Appellate Court internal rules, the 1979 National Magistrates Organic Law, the National Magistrates Ethics Code and Resolution 59 of 2008; the last two rules are both from the National Magistrates Council. The Regional Corrective Magistrate rejected the petition right from the start and the plaintiffs appealed to the full bench of the Fourth Regional Appellate Court. The Fourth Regional Appellate Court ruled that all the norms invoked by the plaintiffs only have correct meaning in typical situations.67 Operation Car Wash, under Judge Moro’s jurisdiction, would be an exceptional and outstanding case that escaped the general norms. The Fourth Regional Appellate Court quoted a former Federal Supreme Court Justice, who incorrectly relied on Schmitt and Agamben when ruling on what he called exceptional situations.68 Repeating the evaluation on the conversations’ content already made by Judge Moro and criticised by the Federal Supreme Court, the Fourth Regional Appellate Court ruled that the general interest in the investigations’ successes would trump the rights to privacy and secrecy of those involved. Eventual threats to the inquiry would require ‘exceptional treatment’. ‘[I]nvestigations and criminal lawsuits of the so-called “Operation Car Wash” are an unprecedented case, bringing unprecedented issues and requiring unprecedented solutions’, declared the Fourth Regional Appellate Court. Afterwards, Judge Sérgio Moro ruled on the criminal lawsuit that resulted in Lula’s imprisonment. The ex-President would have received a beach property

65 Interestingly, in November 2017, long after Rousseff was impeached and Lula indicted, Moro would publicly declare that he had no regrets on the disclosure. See T Stochero, ‘Moro diz não se arrepender de ter divulgado áudio entre Lula e Dilma’, G1, 27 November 2017, g1.globo.com/sp/ sao-paulo/noticia/moro-diz-nao-se-arrepender-de-ter-divulgado-audio-entre-lula-e-dilma.ghtml. 66 See Federal Supreme Court, Recl. 23.457, judgment of 13 June 2016, www.stf.jus.br/arquivo/ cms/noticianoticiastf/anexo/rcl23457.pdf. 67 See Brazilian Fourth Regional Appellate Court, PA Corte Especial 0003021-32.2016.4.04.8000, judgment of 23 September 2016, s.conjur.com.br/dl/lava-jato-nao-seguir-regras-casos.pdf. 68 See Eros Grau, Por que Tenho Medo dos Juízes (São Paulo, Malheiros, 2016).

96  Institutional and Personal Judicial Guarantees in exchange for ‘undetermined acts’ of corruption. It was not evident in the criminal lawsuit why Moro condemned Lula for things that happened after his presidency, why he should be convicted if he did not receive the flat or what concrete acts he committed to favour the businessman and collaboration beneficiary. Of course, a proper analysis of this case would require its own specific work. However, the timing of the criminal lawsuit diverged from the Brazilian patterns. Lula was leading the presidential polls and kept this position two months before the 2018 October elections.69 Lula would be condemned by Moro on 12 July 2017; on 24 January 2018, the Fourth Regional Appellate Court confirmed the condemnation and increased the sentence to more than 12 years.70 On 5 April 2018, the Federal Supreme Court denied Lula a writ of habeas corpus by a tight majority, leaving the general thesis on the constitutionality of imprisonment before a final ruling, based on the presumption of innocence to be ruled in the future. The case was decided with public pressure from the army’s Commander, General Villas-Bôas.71 On the same day, 5 April 2018, Moro issued a bench warrant to imprison Lula, something that would only happen on 7 April 2018. Lula waited in jail for 580 days and was prevented from running as a candidate for the presidential election of 2018. The United Nations Human Rights Committee issued a provisional declaration benefitting him that did not prevail.72 Judge Sérgio Moro did not remain to wait for the electoral campaign to happen on its own. A few days before the first round of the presidential elections, he disclosed a collaboration agreement testimony from Antônio Palocci, Lula’s former Finance Minister. The testimony was heard by Moro in April 2018 and included in a criminal lawsuit against Lula.73 There was no further evidence presented by the former Finance Minister. The new disclosure harmed the Workers’ Party candidacy and favoured Jair Bolsonaro. In 2020, the Federal Supreme Court removed the collaboration agreement from the criminal procedures. It explicitly criticised the lack of impartiality, since the documents 69 B Winter, ‘It’s a Lula Election in Brazil. Again’, Americas Quaterly, 16 July 2018, www.america​ squarterly.org/content/its-lula-election-brazil-again. 70 Compared to other condemnations in Operation Car Wash, Lula’s criminal lawsuit was the fastest to reach the Fourth Regional Appellate Court (J Marques, ‘Ordem de prisão de Lula é a mais rápida entre condenados da Lava Jato que estavam soltos’, Folha de S Paulo, 5 April 2018, www1. folha.uol.com.br/poder/2018/04/ordem-de-prisao-de-lula-e-a-mais-rapida-entre-reus-soltos-dalava-jato.shtml. 71 E Meyer and F Tirado, ‘Brazil Reckoning With its Past in Present Days: Will Judges Check Bolsonaro’s Government?’, I-CONnect Blog, 14 November 2018, www.iconnectblog.com/2018/11/ brazil-reckoning-with-its-past-in-present-days-will-judges-check-bolsonaros-government. 72 Agence France-Presse, ‘UN: Brazil’s jailed ex-president Lula can’t be disqualified from election’, The Guardian, 17 August 2017, www.theguardian.com/world/2018/aug/17/un-brazils-jailedleader-lula-cant-be-disqualified-from-election. 73 R Balthazar, ‘Divulgação de depoimento por Moro expõe fragilidade da delação de Palocci’, 2 October 2018, Folha de S Paulo, www1.folha.uol.com.br/poder/2018/10/divulgacao-de-depoimentopor-moro-expoe-fragilidade-da-delacao-de-palocci.shtml.

From the Bench to Politics  97 had been held by Judge Moro for three months and disclosed in the electoral period.74 One of the first appointments to President Bolsonaro’s cabinet was Sérgio Moro. He became the new Minister of Justice, abandoning his career as a federal judge. It is hard to avoid noting the fact that Moro already had political aims when acting as a judge. As soon as he took office, Moro presented an ‘anticrime package’, a bill that would have, among other measures, like increasing sentences, created an ‘illicit act exclusion clause’. Incorporating Bolsonaro’s farright law and order discourse, Minister Moro wanted that clause in the Brazilian Criminal Code. It would allow any defendant, including police officers, to plea for sentence reduction or even acquittal in cases of attempted murder based on ‘excusable fear, surprise or violent emotion’. As a relevant civil society group affirmed, ‘This loophole could be a blank check to kill. The measure is an ideological, demagogic move and no research or technical criteria is presented to back it up’.75 Although the reform of the Brazilian Criminal Code prevailed, the National Congress rejected Moro’s main proposals. He faced difficulties in dealing with the political dialogues with representatives in the National Congress, who, generally, saw him as an enemy of the political class. His rapid career in the Ministry of Justice ended when Bolsonaro fired a close Moro ally, who was the director of the federal police. There were investigations against one of Bolsonaro’s sons, Senator Flávio Bolsonaro, which seemed to displease the president. The climate was not the best, as shown by the disclosure by the Federal Supreme Court of a disastrous meeting organised by President Jair Bolsonaro. In the reunion, ministers cursed the Federal Supreme Court and state governors, as the minister of the economy, Paulo Guedes quoted Hjalmar Schacht.76 At the same time, the President mentioned that he wanted to interfere with security offices.77 The dismissal of the Minister of Justice cannot allow for a rigid and robust separation between Bolsonaro and Moro’s political projects. Operation Car

74 Federal Supreme Court, HC 163.943, judgement of 4 August 2020, www.conjur.com.br/2020ago-04/ministros-stf-tiram-delacao-palocci-acao-lula. 75 Conectas Direitos Humanos, ‘Moro’s anticrime package reproduces unconstitutional, ineffective solutions’, Conectas Direito Humanos, 2 May 2019, www.conectas.org/en/news/morosanticrime-package-reproduces-unconstitutional-ineffective-solutions. 76 F Cássio and M Bueno Filho, ‘“Professor” de Jair, Paulo Guedes é o mais bolsonarista dos ministros’, Entendendo Bolsonaro, 8 July 2020, entendendobolsonaro.blogosfera.uol.com.br/2020/07/08/ professor-de-jair-paulo-guedes-e-o-mais-bolsonarista-dos-ministros. 77 K Watson, ‘Brazil court releases foul-mouthed Bolsonaro video’, BBC News, 23 May 2020, www.bbc.com/news/world-latin-america-52779998. Former Minister of Education Abraham Weintraub positioned himself as an enemy of public universities right from the start of this office in Bolsonaro’s Government. He made false declarations on drug trafficking in those universities, and constantly restricted their budget. Beyond cursing the Federal Supreme Court in the abovementioned meeting, he left Brazil after his resignation in the middle of the Court’s investigation on fake news. See L Casado, M Andreoni and E Lodoño, ‘Brazilian Ex-Minister Makes Quick Exit to U.S. as Inquiries Rattle Government’, NY Times, 21 June 2020, www.nytimes.com/2020/06/21/ world/americas/bolsonaro-minister-scandals.html.

98  Institutional and Personal Judicial Guarantees Wash incorporated a discourse against corruption and the sitting political party, the Workers’ Party, that had allegedly participated in it. The flags included other several rightist values, such as family, God and liberty. Civil society’s political movements had their connections with Operation Car Wash’s aims: this was the case of the Free Brazil Movement (Movimento Brasil Livre) or Come to the Streets (Vem pra Rua). Using digital platforms, they were able to reach a significant number of voters. Bolsonaro radicalised this discourse, got elected with Operation Car Wash admirers’ votes and, when he gained power, slowly lost interest in the investigation and its supporters. Sérgio Moro ended up working for a consulting firm that has as its clients the giant constructor Odebrecht, one of the main companies involved in the corruption accusations of Operation Car Wash.78 Moro would face challenges when, on 9 June 2019, the journalism website The Intercept published a full disclosure of Telegram app conversations between him and Operation Car Wash’s leading prosecutor, Deltan Dallagnol.79 The dialogues, which took place when he sat as a federal judge, showed that Moro had a close relationship with the accusation. His acts breached the accusatory system projected by the 1988 Constitution and Criminal Procedure Code norms of impartiality. Between other actions, he advised the prosecutor of the importance of a witness and the necessity of new developments of Operation Car Wash. Moro also censored the accusation for appealing against a sentence he delivered. He discussed the publishing of the wiretapping between former Presidents Dilma and Lula. In other words, there is clear evidence that he acted to help the accusation and harm the due process rights of several defendants.80 The Federal Supreme Court would need to confront how to bend Operation Car Wash to the rule of law. It is noticeable, however, that some of the justices of the apex court publicly showed sympathy for the work of prosecutors and federal judges. Justice Barroso, for instance, although he had already ruled on cases involving the investigation, declared in an interview that the ‘lads from Curitiba’ delivered a good example and they achieved a ‘union’ between prosecutors,

78 See www.alvarezandmarsal.com/our-people/sergio-moro. 79 See A Fischman et al, ‘Breach of Ethics’, 9 June 2019, The Intercept, theintercept.com/2019/06/09/ brazil-lula-operation-car-wash-sergio-moro. See also Anderson, Brazil Apart (2019) 338. As Anderson shows, the conversations made public that federal prosecutor Deltan Dellagnol, former head of Operation Car Wash, had his preferences in the Federal Supreme Court bench. He used the phrase ‘In Fux we trust’ to refer to Justice Luiz Fux, someone known for upholding Operation Car Wash’s procedures in the Court. 80 The case of the prosecutor Deltan Dellagnol is also important. Although being a severe critic of the number of appeals the Brazilian criminal procedure allows for, he and his lawyers were able to postpone procedures against him at the National Council of Prosecutors (the organ responsible for overseeing their actions) no less than 42 times (Conjur, ‘CNMP adia julgamento de Deltan no caso do PowerPoint pela 41ª vez’, Conjur, 18 August 2020, www.conjur.com.br/2020-ago-18/cnmpadia-julgamento-deltan-powerpoint-41-vez2). The procedures aim at checking his attitudes towards ex-President Lula’s investigations. On 25 August 2020, the procedure against Dellagnol was reached by statute of limitations and filed.

From the Bench to Politics  99 police officers and judges.81 He also wrote the preface of a laudatory book on Operation Car Wash – which included pieces authored by Sérgio Moro and Deltan Dellagnol – in which he stated that the authors inspired and mobilised citizens for the ‘coming of a new time’. ‘Moment of refoundation of the country’ and ‘patriotism’ were also phrases adopted by Justice Barroso.82 The Federal Supreme Court guaranteed to defendants that they had the right to contest the accusations after the final presentation of informer’s declarations, something that generated diverse effects against several procedures in Operation Car Wash.83 Nonetheless, several years after ex-President Lula’s defence pledged for recognising Moro’s partiality in various tribunals, the matter is still on the Federal Supreme Court’s dock. Moro himself was not worried about shadowing his partiality. In a TV interview, he described Lula’s testimony, which was presided over by him, a federal judge, as a boxing match between himself and the ex-president.84 Under Bolsonaro, Moro demanded, as a minister, that a secret investigation be prompted against Lula’s statements that Bolsonaro had links with milícias’ agents – the basis for the inquiry was the 1983 National Security Act.85 The destiny of Operation Car Wash faced more significant challenges during Bolsonaro’s Government. In his effort to dominate state institutions, President Bolsonaro nominated for Prosecutor General of the Republic someone close to his ideological preferences. Since the start of President Lula’s administration, the tradition to respect a list of names indicated by the National Association of Federal Prosecutors emerged (Associação Nacional dos Procuradores da República). The option was not, indeed, provided for by the constitutional norms that govern the nomination made by the president between members of the prosecutors’ career. The tradition had resulted in two contradictory consequences: on one hand, it generated more independence – that, in the case of Operation Car Wash, turned into the total absence of accountability; and on the other, it privileged corporatist relationships and networks. Augusto Aras, the name chosen by Bolsonaro, was outside of this milieu. 81 The interview was made with journalist Roberto D’Ávila and can be found here: luisrobertobarroso.com.br/2016/07/16/entrevista-a-roberto-davila, at 20:35. See T Bustamante, ‘Justice Barroso’s Theory and Practice of Adjudication’ (2020, manuscript with the author) 49. 82 See L Barroso, ‘Prefácio. Empurrando a história: combate à corrupção, mudança de paradigmas e refundação do Brasil’, in M Pinotti (edss), Corrupção, Lava-Jato e Mãos Limpas (São Paulo, Portfolio-Penguin, 2019), 19. See T Bustamante, ‘Justice Barroso’s Theory and Practice of Adjudication’ (2020), manuscript with the author, 51. 83 Supremo Tribunal Federal, ‘STF decide que delatados têm direito a apresentar alegações finais depois de delatores’, Notícias STF, 2 October 2019, www.stf.jus.br/portal/cms/verNoticiaDetalhe. asp?idConteudo=425282. See, also, Federal Supreme Court, HC 166.373, judgment of 2 October 2019, portal.stf.jus.br/processos/detalhe.asp?incidente=5607116. 84 J Filho, ‘Sem adversário na oposição e blindado pela mídia, Moro tem pista livre para abraçar candidatura’, The Intercept Brasil, 19 July 2020, theintercept.com/2020/07/19/sergio-moro-eleicoesoposicao-midia. 85 A Jubé and I Peron, ‘Lula depõe em inquérito pedido por Moro após crítica a Bolsonaro’, Valor Econômico, 19 February 2020, valor.globo.com/politica/noticia/2020/02/19/lula-presta-depoimentoem-inqurito-requisitado-por-moro-que-o-acusa-de-violao-segurana-nacional.ghtml.

100  Institutional and Personal Judicial Guarantees Prosecutor General Augusto Aras was chosen for publicly demonstrating concerns with transparency. He asked that data and evidence collected by the Operation Car Wash team in Curitiba (the basis of the whole operation) be shared with the Office of the Prosecutor General of the Republic independently of a particular lawsuit and without judicial authorisation. The initiative prompted confrontational rulings inside the Federal Supreme Court. There is a fundamental reason for this: according to the Prosecutor General of the Republic, the Operation Car Wash team would have stored data from 38,000 people.86 The debate inflamed divisions even among those critics of Operation Car Wash. On one hand, some argued that there are matters of public interest that the Prosecutor General was trying to access.87 On the other, some consider that the independence of prosecutors, granted by the 1988 Constitution, would be at risk if the authority close to the president has access to data that can be used to attack the opposition.88 In the end, the process of the deterioration of the rule of law triggered by Operation Car Wash turned into a quicksand that was able to swallow the measures against corruption. VI.  INDIVIDUALITIES V INSTITUTIONAL BEHAVIOUR

If no substantial institutional reform had been on the table during the 1987–1988 Constituent Assembly, there would be decisions coming from above without a proper sense of democratic reinforcement. In the 1990s, the Federal Supreme Court’s case law was still linked to political question doctrine and subservient to what occurred in the legislative or the executive branches. According to that model of decision-making, interference with other branches should be avoided in favour of self-restricted performance.89 For instance, President Fernando Henrique Cardoso (1994–2002) used extraordinary legislative powers industrially through provisional measures (medidas provisórias), without any salient confrontation with the Court, during a significant part of his administration. From the 2000s onwards, a new generation of justices relied on proportionality theories to open the venue for the judicialisation of politics. 86 See Conjur, ‘“Lava jato” em Curitiba tem dados de 38 mil pessoas, diz Augusto Aras’, Conjur, 29 July 2020, www.conjur.com.br/2020-jul-29/lava-jato-curitiba-dados-38-mil-pessoas-aras. 87 See L Streck, ‘Big data de informações do MPF: um Habeas Data a favor do Brasil?’, Conjur, 6 August 2020, www.conjur.com.br/2020-ago-06/senso-incomum-big-data-informacoes-mpf-habeasdata-favor-brasil. 88 See C Mendes, ‘“Advocacia está em festa” com Aras, Bolsonaro também’, Folha de S Paulo, 4 August 2020, www1.folha.uol.com.br/colunas/conrado-hubner-mendes. 89 The roots of the political question doctrine are in Luther v Borden, 48 US (7 How) 1 (1849), a case by which the US Supreme Court, although recognising that the republican clause of Article Four of the 1787 Constitution should be respected, it was the duty of the president and National Congress to enforce it – the clause was non-justiciable (S Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge, Cambridge University Press, 2015) 155).

Individualities v Institutional Behaviour  101 In some cases, how the Federal Supreme Court viewed the same authoritarian past in which it lived was at stake. Brazilian judges, especially the ones appointed by the military regime, cooperated by not confronting the executive decisions of the dictatorship during the 1970s.90 When formal democracy arrived and underwent a real test, the judges backed off, as this book describes in chapter one, through the analysis of the 2010 ruling on the 1979 Amnesty Law. As expected, few judges opposed the Federal Supreme Court ruling and most judges simply agreed that the 1988 Constitution allowed for the amnesty and impunity of crimes against humanity. In this sense, it is remarkable how cases of human rights violations generate less criminal justice responses in the present day compared to corruption cases – without denying the gravity of crimes against the administration. Of course, these were not the only problems. The Federal Supreme Court has recognised several private or civil rights over the past few decades.91 If one adds to it the normative feature that must govern constitutionalism, maybe the way is not to present the scenario as an ongoing state of exception but as a project under tension. As depicted by Gargarella, several constitutions in the region have gone through transformations, reforms and substitutions that gave way to an advanced system of human rights. Something, however, remained unchanged: the constitutions’ machinery, its organisation of powers – although the 2008 Ecuadorian Constitution and the 2009 Bolivian Constitution made several arrangements improving democratic participation. Two facts noted by Gargarella that can be considered of importance for Latin American constitutionalism – working-class participation in politics and the outbreak of multicultural politics – would change the declarations of rights, but would not affect the organisation of power.92 The connection between rights and democracy is still something to be achieved appropriately in the future. The lack of legitimacy for diverse parts of judicial adjudication has pernicious effects on Latin American constitutionalism. If it is not possible to link the exercise of judicial adjudication to the popular autonomy governed by human rights, the result is that political regimes will remain much more dependent on 90 See A Pereira, Political (In)Justice: Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina (Pittsburgh, Pittsburgh University Press, 2005). 91 For instance, the cases decided by the Federal Supreme Court when it recognised the constitutionality of gay marriage, the legitimacy of public demonstrations in favour of decriminalising marijuana usage, the illegitimacy of private companies financing elections (although this ruling has decisionmaking mechanisms that can be subject to criticism) and the need to extend the crime of racism for protecting homophobic manifestations. See Federal Supreme Court, ADI 4.277 and ADPF 132, judgment of 5 May 2011, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=628633; Federal Supreme Court, ADPF 187, judgment of 15 June 2016, redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=TP&docID=5956195; Federal Supreme Court, ADI 4.650, 15 September 2015, www.stf.jus. br/portal/processo/verProcessoPeca.asp?id=308746530&tipoApp=.pdf; Federal Supreme Court, ADO 26, 16 June 2019, portal.stf.jus.br/processos/detalhe.asp?incidente=4515053. 92 R Gargarella, La Sala de Máquinas de La Constitución: Dos Siglos de Constitucionalismo En América Latina (1810–2010) (Buenos Aires, Katz Editores, 2015).

102  Institutional and Personal Judicial Guarantees other sources of power. Consider, for example, the economic power in countries that confront extreme inequality (chapter two). After years of the doctrine of the political question, judges now feel comfortable guaranteeing liberal rights, since they do not have to take on complex decisions that could affect a perversely unequal system, even if the Constitution explicitly establishes a welfare state. To make things worse, in political crises, judges see themselves as saviours of a kind of stability that is not a product of the constitution but of their views on how society should work. This is the subject of chapter four.

4 Judges and Courts Destabilising Constitutionalism

O

ne of the main features amid the political, economic and juridical ­crisis Brazil has been confronting over the past six years is related to the judicial rulings that, at first glance, resemble a typical state of exception, sometimes in a sense that would surprise even Carl Schmitt.1 From the time of the parliamentary coup of 2016 and the lawsuits against its procedure in the Federal Supreme Court,2 through several rulings made by judges and regional tribunals, there have been a significant number of decisions that violate constitutional and statutory dispositions in their most straightforward interpretation. One thing, though, is certain: Brazilian constitutionalism, as envisaged by the 1988 Constitution, is being modified day by day, its survival is tested continuously and there are disputes regarding the appropriate arrangements for constitutional democracy. The political actors in this dispute have been trying to shape judicial performance. At the same time, members of the judicial branch have been advancing into political spaces reserved, until very recently, for the members of the executive and the legislative branches alone. This chapter aims to present the landscape in which Brazilian tribunals have recently become one of the main actors responsible for endangering the constitutional commitment to the separation between the political and the legal systems. With no need to rely on a Luhmannian perspective,3 this chapter will presuppose a simple Dworkinian point of view, based on the differences between arguments of policy versus arguments of principle. The latter are the typical foundation for a judicial ruling.4 This hypothesis relies on the fact that the judicial rulings 1 See C Schmitt, Constitutional Theory (Durham and London, Duke University Press, 2008). Ideas like ‘exceptional moments’ or the need to preserve a special kind of ‘political stability’ will be part of several Brazilian court rulings mentioned in this chapter. For an analysis of Brazilian and Latin American judiciaries from an ‘exceptionalism’ explanation based on Georgio Agamben, see P Serrano, Autoritarismo e Golpes na América Latina: Breve Ensaio Sobre Jurisdição e Exceção (São Paulo, Alameda Casa Editorial, 2011). 2 For a pluralistic description of President Dilma Rousseff’s ousting as coup, see C Proner et al, A Resistência ao Golpe de 2016 (Bauru, Canal 6, 2016). For the opposite perspective, see M Melo, ‘Crisis and integrity in Brazil’ (2016) 27 Journal of Democracy 50. 3 See generally N Luhmann and F Kastner, Law as a social system (New York, Oxford University Press, 2008). 4 See R Dworkin, Taking Rights Seriously (London and New York, Bloomsbury Academic, 2013) 82.

104  Judges and Courts Destabilising Constitutionalism analysed here left behind such a distinction while ignoring the direct textual mandatory dispositions of the 1988 Constitution or even of the legislation. In some of the cases debated in this chapter, the proportionality rationale guides judicial decisions in a way that threatens to the separation of powers envisioned by the 1988 Constitution project. In doing so, tribunals advanced an approach towards constitutionalism that endangers stability (or they try to concretise their idea of stability), making participation in politics more important than enhancing the normative character of constitutional provisions. What occurred over the past few years depends severely on the support of what a Brazilian sociologist called the juridical–political apparatus,5 which could provide legitimation to several constitutional and legislative changes that would depend on legislative activity, or even on another constitution. As this book shows in chapter three, there is room for a hypothesis that strategic behaviours involving Brazilian judicial elites reinforce the judicialisation of politics. Such an assumption is an alternative interpretation to Ran Hirschl’s proposal on the role played by juristocracy. Judges and courts have positioned themselves as the tutors of democracy instead of as instruments to safeguard political minorities defeated in elections.6 To reach such a conclusion, the chapter debates some controversial rulings made by Brazilian courts – and especially the Federal Supreme Court – in the past few years, and how they promoted a special kind of constitutional instability that could give rise to populist political proposals. This is not to ignore the important role played by the judicial branch in Brazilian constitutionalism. For the protection of minorities’ integrity and dignity, diverse judicial decisions are crucial. Consider, however, what Hirschl labels mega-politics: matters of great political significance that define and divide politics.7 With the current polarisation, the term is even more important, since it refers to divisive issues that can appear in judicial rulings. Those issues have, since 2014, constantly arisen at the Federal Supreme Court. The Court, however, does not seem to have clear criteria to decide them or even to define when it shall

5 J Souza, A Radiografia do Golpe (São Paulo, LeYa, 2016). For another analysis on the judiciary’s role in the parliamentary coup in Brazil in 2016, see M Martins, ‘Entrevista: Boaventura De Souza Santos’, Carta Capital, 2 November 2016, www.cartacapital.com.br/politica/o-que-mais-custaaceitar-e-a-participacao-do-judiciario-no-golpe. In the words of Santos, ‘In the Brazilian case, what is hard to accept is the aggressive participation of the judiciary in the coup’s occurrence in view of two factors that formed the great historical opportunity for the judicial branch to affirm itself as one of the safest cornerstones of Brazilian democracy. On one hand, it was during the PT’s [Partido dos Trabalhadores, ‘Workers Party’] Government that the judicial and criminal investigation system was significantly improved, not only financially but also institutionally. On the other hand, it was clear right from the start that Dilma Rousseff did not commit any crime of responsibility that could justify the impeachment. The conditions to start a vehement fight against corruption without compromising the political instability were created and, on the contrary, enhanced democracy. Why was this opportunity so grossly wasted? The judicial branch owes an answer to Brazilian society’. 6 See R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (New Haven, Harvard University Press, 2004). 7 See R Hirschl, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93.

Deputies and Senators in the Federal Supreme Court  105 step in. Those are the reasons why, when it comes to mega-politics, a critical approach must stand to illuminate what are the problems generated by judicial rulings. I.  DEPUTIES AND SENATORS IN THE FEDERAL SUPREME COURT

One significant first ruling by the Federal Supreme Court contributed to reading the separation of powers in the 1988 Constitution in a very flexible way. The Court has repeated this approach several times subsequently. In 2016, the Prosecutor General of the Republic filed a lawsuit in the Federal Supreme Court asking for a stay to protect an investigation related to a collaboration agreement involving one of the primary Operation Car Wash informers. The informer’s son, the informer’s lawyers and a former senator and his chief of staff were discussing ways to remove the informer from Brazil to Spain, with the aim of avoiding charges against the senator and the owner of a Brazilian bank. The plan included financially helping the informer and paying a large amount of money to the lawyer, but also included previous conversations with Federal Supreme Court justices. The justices could be drawn to rule on the case. The senator would also talk to another justice to promote a dialogue between then-Vice-President Michel Temer and another member of the Federal Supreme Court. A copy of the collaboration agreement would even be in the custody of the Brazilian banker, which was another sign that there was some interference with the investigation. Covert listening device recordings substantially proved all of these facts among those who were accused. As previously mentioned, the Prosecutor General of the Republic filed the lawsuit in the Federal Supreme Court and Justice Teori Zavascki, one of the justices mentioned in the conversations, was assigned as the rapporteur.8 Zavascki agreed with the Prosecutor General of the Republic to imprison the senator and judicially react to the alleged influence in the Court, and per the gross facts presented in the lawsuit. Such a response is interesting: if the Federal Supreme Court is attacked as an institution, generally, justices tend to adopt similar positions, as they did with President Bolsonaro’s threats and with a federal representative aggression in 2021 (chapter eight).9 The Federal Supreme Court’s 8 Brazil, STF, AC 4.039, judgment 24 November 2015, www.stf.jus.br/arquivo/cms/noticianoticiastf/anexo/acao_cautelar_4039.pdf. NB Justice Teori Zavascki died in a plane crash in January 2017; see J Watts, ‘Brazil Supreme Court Justice Overseeing Vast Corruption Case Dies in Plane Crash’, The Guardian, 19 January 2017, www.theguardian.com/world/2017/jan/19/brazil-supreme-courtcorruption-case-teori-zavascki-dies-plane-crash. 9 When Bolsonaro’s supporters defended a ‘military intervention’ in the Court, Justices Barroso and Fux, who would generally see the current Brazilian political situation as one in which institutions work normally, granted two rulings emphatically rejecting this thesis. See E Meyer and T Bustamante, ‘Judicial Responses to Bolsonarism: The Leading Role of the Federal Supreme Court’, 16 June 2020, Verfassungsblog, verfassungsblog.de/judicial-responses-to-bolsonarism-theleading-role-of-the-federal-supreme-court.

106  Judges and Courts Destabilising Constitutionalism second panel would affirm Zavascki’s provisional ruling. Justice Zavascki justified his position by recognising the exceptional character of preventive detention in Brazil, which is a form of pre-trial detention with precise requirements under the Brazilian Criminal Procedure Code. Preventive detention can only be used if no other precautionary measure – such as using an electronic anklet, something that the Prosecutor General of the Republic asked for as a subsidiary ­requirement – is sufficient to safeguard the criminal procedure. It appears that all the legal requirements for preventive detention were met in the case and that ex-Senator Delcídio do Amaral would have committed infractions that would have created severe problems for Operation Car Wash. The Brazilian Criminal Organisations Act criminalises the promotion, creation and participation in criminal organisations, as well as the obstruction of criminal investigations on them;10 furthermore, such crimes are treated as permanent or ongoing ones by the Federal Supreme Court.11 Additionally, the Court saw no illegal proof that could avoid the detention ruling. However, the Federal Supreme Court would have to address a more significant obstacle: the 1988 Constitution forbids a congressman’s arrest except in cases of flagrante delicto and by virtue of non-bailable crimes. Obstructing investigations into criminal organisations, or being part of one, can be considered an ongoing crime if several acts are perpetrated during a significant timeline, allowing the possibility of a flagrante delicto. However, the problem was determining whether the offence was a bailable one – the 1988 Constitution does not define the crimes of criminal organisations as nonbailable. Justice Zavascki overcame this obstacle by relying on a disposition of the Brazilian Criminal Procedure Code, which states that no bail shall be applied in situations where the requirements for preventive detention are present. Statutory provisions took the place of constitutional ones. Moreover, it is possible to conclude from the ruling that the Federal Supreme Court’s institutional image was at stake. Therefore, it was not necessary for a non-bailable crime to be at the centre of the accusation, only that an exceptional situation needed exceptional measures. Justice Zavascki did not use those words, but relied on and quoted another Federal Supreme Court precedent that did.12 The Federal Supreme Court went further in situations related to criminal investigations of National Congressmen. The second case involved then Chamber of Deputies Speaker, Eduardo Cunha. The Prosecutor General of the Republic accused Cunha of using his positions as deputy and speaker to perpetrate corruption crimes and avoid investigation by the lower house Council 10 Law 12.850 of 2013, www.planalto.gov.br/ccivil_03/_ato2011-2014/2013/lei/l12850.htm. 11 There are several Federal Supreme Court rulings that affirm this idea. For instance, see Brazil, STF, HC 112.454, judgment of 19 March 2013, redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=TP&docID=3625670. 12 See Federal Supreme Court, HC 89.417, 2 August 2008, redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=AC&docID=395000, 917: ‘To the exceptionality of the situation must correspond the exceptionality of the interpretation and application of constitutional system principles and rule[s]’.

Deputies and Senators in the Federal Supreme Court  107 of Ethics.13 Zavascki, followed unanimously by the other Federal Supreme Court justices, suspended Cunha from the exercise of his mandate as a federal deputy and, consequently, from the position of lower house speaker. He relied upon the norms of the Brazilian Criminal Procedural Code, especially those concerning cautionary measures. Justice Zavascki also stated that the 1988 Constitution forbids someone who is formally accused of common crimes in the Federal Supreme Court from exercising the office of the presidency of the republic. Since the speaker of the lower house is the next in the line of succession after the vice-president, Cunha would not meet the constitutional requirements to take office, and this was an additional argument in favour of suspending him from his function as speaker. It is not a surprise that Justice Zavascki would state, in his opinion, that what is decided here is an extraordinary, exceptional and, because of it, timely and individualised situation[.] Even if there is no specific constitutional provision concerning the removal of members of parliament from their offices by the criminal prosecutor or the imposition of removal of the Speaker of the lower house when its officer is criminally accused, it is demonstrated that, in the present case, both actions are clearly necessary.14

Concerns about the line of succession for the President of the Republic contributed to a political party filing a lawsuit using the concentrated constitutional review in the Federal Supreme Court.15 The political party aimed for the Federal Supreme Court to recognise that, if any of the authorities in the President of the Republic’s line of succession are indicted, they should leave their positions. The juridical thesis is based on the fact that, as soon as the President of the Republic is indicted, he must be suspended from office. In that lawsuit, a Federal Supreme Court Justice issued a monocratic injunction to remove the speaker of the Brazilian Federal Senate, another legislative member previously indicted by the Court. The board of the Senate refused to receive official notification on the ruling and, two days later, on the verge of a constitutional crisis, the majority of the justices of the Court reviewed the holding deciding that the speaker of the Federal Senate should remain in office but be removed from the line of succession.16 The authority shall only be prevented from taking temporarily the office of the presidency of the republic. Authorities cannot be taken from the offices of speaker of either the Chamber of 13 See Federal Supreme Court, AC 4.070, 5 May 2017, www.ebc.com.br/sites/_portalebc2014/files/ atoms/files/ac4070.pdf. 14 See Federal Supreme Court, AC 4.070, 5 May 2017, 72–73,www.ebc.com.br/sites/_portalebc2014/ files/atoms/files/ac4070.pdf,. 15 The ADPF, a claim of non-compliance with a fundamental precept in a direct translation (arguição de descumprimento de preceito fundamental) is one of the ways of provoking the Federal Supreme Court to decide constitutional matters based on a concentrated or European model of constitutional review. 16 See Federal Supreme Court, ADPF 402, judgment of 7 December 2016, portal.stf.jus.br/processos/downloadPeca.asp?id=315124511&ext=.pdf.

108  Judges and Courts Destabilising Constitutionalism Deputies or the Federal Senate. There has been no final decision on the merits, at the time of writing. The blurred set of case law did not end. In a very confusing line of precedents in 2017, the Federal Supreme Court faced the case of 2014 presidential candidate and then-Senator Aécio Neves, who was the subject of at least six different investigations. Neves was taped asking for money from the owners of a giant cold-storage company, JBS. Similarly, President Temer would face requirements for the lower house authorisation for his criminal indictment based on accepting that JBS paid for the former speaker of the Chamber of Deputies’ silence in prison – the lower house denied the licence to prosecute Temer.17 On 18 March 2017, a Federal Supreme Court justice monocratically suspended Neves from office.18 Almost three months later, another court’s justice also unilaterally reversed the ruling.19 Nonetheless, the first panel of the Federal Supreme Court reversed the last individual ruling again to suspend Neves from office on 26 September 2017.20 Allegedly aiming at some juridical predictability related to the different positions held by the Federal Supreme Court, political parties filed another concentrated constitutional review lawsuit. The aim was that the Court could rule using the judicial technique of ‘interpretation in harmony with the Constitution’ regarding the cautionary measures provided under the Brazilian Criminal Procedure Code. The justices were to affirm that any of these measures must be submitted for validation by the house to which the investigated member of parliament belongs within 24 hours of the judicial organ deciding on it.21 In  other words, it was not just cases of flagrant detention for a non-bailable crime that must follow the constitutional provision, but also any criminal procedure cautionary measure. By a very slim majority of six justices to five,

17 A Boadle and M Marcello, ‘Brazil’s Congress rejects corruption case against President Temer’, Reuters, 25 October 2017, www.reuters.com/article/us-brazil-temer/brazils-congress-rejectscorruption-case-against-president-temer-idUSKBN1CU2I2. 18 See Consultor Jurídico, ‘Fachin Afasta Aécio e Loures; Pedidos de Prisão Preventiva Foram Negados’, Conjur, 18 May 2017, www.conjur.com.br/2017-mai-18/fachin-afasta-aecio-deputadopedidos-prisao-plenario. 19 See J Affonso and F Macedo, ‘Aécio tem “fortes elos com o Brasil” e “carreira política elogiável, diz Marco Aurélio”’, O Estado de S Paulo, 30 June 2017, politica.estadao.com.br/blogs/ fausto-macedo/aecio-tem-fortes-elos-com-o-brasil-e-carreira-politica-elogiavel-diz-marco-aurelio. 20 See Supremo Tribunal Federal, ‘1ª Turma determina afastamento do senador Aécio Neves do cargo’, Notícias STF, 26 September 2017, www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?id Conteudo=356966; see also www.stf.jus.br/portal/processo/verProcessoAndamento.asp?incidente= 5188006. 21 It is important to elucidate that, like several other courts across the world, the Federal Supreme Court goes far beyond the binomial constitutionality/unconstitutionality in constitutional review procedures, using structural injunctions, like ‘interpretation in harmony with the Constitution’, Italian techniques, such as the sentenze additive, or German techniques, such as the Apellentscheidung. For an overview of these techniques, see E Meyer, Decisão e Jurisdição Constitucional (Rio de Janeiro, Lumen Juris, 2017). See also A Brewer-Carias, ‘Constitutional Courts’ Interference with the Legislator on Existing Legislation’ in A Brewer-Carias (ed), Constitutional Courts as Positive Legislators: A Comparative Law Study (Cambridge, Cambridge University Press, 2011) 73.

Deputies and Senators in the Federal Supreme Court  109 the Court partially agreed with the political parties concerning those cautionary measures that could obstruct the exercise of the office by members of the National Congress.22 The Federal Senate would keep Aécio Neves in office as a federal senator without any concern about the criminal investigations. These circumstances allow us insight into the relationship between the Federal Supreme Court, National Congress and public opinion. The Court gave more attention to how the media and a fraction of popular opinion saw the facts than to what constitutional norms established. The Court has not presented coherent arguments since the first senator’s (Delcídio do Amaral) detention. Even if one accepts that Eduardo Cunha was guilty of abusing his parliamentary immunities, it is questionable whether he could have been removed from his position as speaker of the lower house. The thesis regarding the presidential line of succession exclusion created even more confusion. One must remember that suspension from office, in this case, depends on the authorisation of an external organ – the Chamber of Deputies – and the crime supposedly perpetrated by the president must be related to the office (a propter officium crime). In other words, how can an authority that could never perpetrate such crimes, since only the president could commit them, be prevented from occupying his position? The fury to fight corruption using any means necessary generated by Operation Car Wash seems to have contaminated the Federal Supreme Court. The various decisions concerning Senator Aécio Neves also demonstrate that there is no pattern and that the justices are much more worried about their individual roles than about the Court’s institutional position. If the Senate had refused to implement the Federal Supreme Court’s First Panel’s ruling suspending Neves from office, a genuine constitutional crisis would have occurred. Subsequently, the full bench of the Federal Supreme Court rapidly tried to show that it agreed with what the Senate could decide regarding Neves’ mandate. If the decision has constitutional plausibility, its timing was the consequence of an erratic comprehension of parliamentary immunities instead of a constitutionally adequate interpretation. Of course, there are problems of institutional design here, as Arguelhes and Ribeiro already pointed out against the individual judicial review mechanisms the tribunal can use.23 But, as chapter three indicated, the scope of a judge’s power in Brazil is far beyond what the 1988 Constitution provides for. The judicial branch’s entry into mega-politics would also have effects in 2020. The Federal Supreme Court consolidated a case law on the immunities of state 22 See Federal Supreme Court, ADI 5.526, judgment of 11 October 2017, portal.stf.jus.br/processos/downloadPeca.asp?id=314935383&ext=.pdf. 23 D Arguelhes and L Ribeiro, ‘“The Court, It Is I”? Individual Judicial Powers in the Brazilian Supreme Court and Their Implications for Constitutional Theory’ (2018) 7 Global Constitutionalism 236. A survey showed that, in the last 30 years, 72% of the Court’s orders were granted individually: see M Teixeira, ‘Só 1% das decisões do STF dos últimos 30 anos foi tomada em discussão presencial e aprofundada’, Folha de S Paulo, 21 September 2020, www1.folha.uol.com.br/poder/2020/09/ so-1-das-decisoes-do-stf-dos-ultimos-30-anos-foi-tomada-em-discussao-presencial-e-aprofundada. shtml?utm_source=mail&utm_medium=social&utm_campaign=compmail.

110  Judges and Courts Destabilising Constitutionalism governors that aimed at limiting them. Although there were federative issues at stake, the Court decided that states cannot, in their constitutions, subject the process and trial of a government by the Superior Court of Justice to the permission of the state legislative branch. Some state constitutional norms did so in copying the federal parameter, and the Federal Supreme Court needed to repeal them.24 Nonetheless, the Federal Supreme Court ruled that the Superior Court of Justice must decide, at the moment that a governor is indicted, if he shall be removed from office. In 2020, however, before a formal lawsuit took place and during preliminary investigations, a single judge of the Superior Court of Justice removed Rio de Janeiro’s Governor Wilson Witzel from office. The greatest challenge was that the ruling was taken by a single justice – even though the Court ratified it afterwards. Although there was previous jurisprudence allowing the removal, a requirement that there be serious debate inside the bench could avoid accusations of excessive politicisation. In the same field of congressional immunities, in 2021, the position of former army commander General Villas Bôas, who threatened the Federal Supreme Court via Twitter (see below; the introduction of this book and chapter five), was detailed in an interview published in the form of a book.25 The General would have debated his Twitter activity with top military members. The Court responded to the impact of the book with a note published by a justice. A federal representative recorded a video and published it on YouTube; in it he made aggressive personal threats to the justices of the Federal Supreme Court and to the whole institution. The deputy was imprisoned by a unanimous ruling of the Court for violating the National Security Law, Law 7.170 of 1983. Although the ruling was debatable, there were elements that can characterise the deputy’s deed as flagrante delicto and a non-bailable offence. The National Congress reacted through a constitutional amendment proposal to expand parliamentary immunities. Although the Court was institutionally unified and the ruling rubbed legislative and judicial relationships, no measure was taken against the military officers that initiated the issue. Mega-politics are touched by the Federal Supreme Court until it reaches the military zone of influence. II.  THE JUDICIAL OVERSIGHT OF AN IMPEACHMENT

During Dilma Rousseff’s impeachment process, the Federal Supreme Court’s involvement was requested in a range of subjects. When the condemnation 24 Federal Supreme Court, ADI 5.540, judgment of 3 May 2017, jurisprudencia.stf.jus.br/pages/ search?classeNumeroIncidente=%22ADI%205540%22&base=acordaos&sinonimo=true&plural =true&page=1&pageSize=10&sort=_score&sortBy=desc&isAdvanced=true. See B Fernandes, Curso de Direito Constitucional (Salvador, JusPodivm, 2020) 1.489. 25 C Castro (ed), General Villas Bôas: Conversas com o Comandante (São Paulo, FGV, 2021). See See E Meyer and U Reis, ‘Brazilian Democracy Under Military Tutelage’, Verfassungsblog, verfassungsblog.de/brazilian-democracy-under-military-tutelage.

The Judicial Oversight of an Impeachment  111 occurred, once again, the Court was provoked: beyond the Senate’s uncanny decision to impeach Dilma Rousseff but not to block her from holding public offices for eight years, as the 1988 Constitution demands, there was, in her defence, a discussion on the merits and due process of law. It was alleged right from the start that facts imputed to her by the accusation did not amount to impeachable offences and that the Chamber of Deputies Speaker, Eduardo Cunha, had used the process to further his own political and private interests. In this sense, Rousseff could not face an impeachment process without a clear and robust basis, and impartiality was absent from the whole procedure. As soon as the condemnation occurred, Dilma Rousseff filed a lawsuit that was assigned to Justice Teori Zavascki as the rapporteur. Zavascki refused to grant a stay on the grounds that there were, after the impeachment process, no risks to republican institutions, the constitutional democratic state or the constitutional order.26 Brazilian legislation, like the Federal Supreme Court internal rules, allows the rapporteur of a case to decide whether to grant stays solely.27 Dilma Rousseff’s defence was cautious about trying to distinguish the impeachment process from a vote of no-confidence. Even if the Senate’s trial is a political element of the impeachment process, that fact does not affect the need for the prosecution to present a clear delimitation of the gross offences perpetrated in juridical language. In other words, the Senate makes political judgments on a juridical basis. The defence also added the vast range of acts that would compromise deputies’ and senators’ impartiality, mainly those practiced by then-Chambers of Deputies Speaker Eduardo Cunha. Consequently, Dilma Rousseff asked that the Federal Supreme Court suspend the federal senate’s decision and then, at the end of the procedure, nullify it. Justice Zavascki’s ruling denying the stay is meticulous in analysing all the arguments in Dilma Rousseff’s 500-page petition. In contrast, in less than three pages, he was able to indicate that the Federal Supreme Court would leave the Senate’s decision untouched. First, he stated that the legislation that regulates the impeachment process is anachronistic and the arguments concerning the separation of powers clause are very complex. At the same time, he did not prevent himself from making political observations: that the impeachment process occurred in nine months and resulted in a condemnation that overcame the constitutional majority of two-thirds of the Senate; that a potentially mutable judicial intervention would cause enormous institutional consequences; that only a thorough demonstration of the necessity to avoid grave damages to institutions could lead to a judicial ruling in that moment; that the president is elected with the vice-president, as the 1988 Constitution provides for, and that there was a need to avoid constitutionally compromising his legitimacy to 26 See Federal Supreme Court, MS 34.441, 21 October 2016, portal.stf.jus.br/processos/download​ Peca.asp?id=310585765&ext=.pdf. 27 Federal Supreme Court Internal Rules, Article 21(V). See www.stf.jus.br/arquivo/cms/legislacao​ RegimentoInterno/anexo/RISTFintegral.pdf.

112  Judges and Courts Destabilising Constitutionalism govern (even if he was using the opposite political programme); finally, there was a lack of demonstration of the risks to republican institutions, constitutional law or the constitutional order that could allow any intervention. In the 1990s, when ruling on the case of ex-President Fernando Collor, the Federal Supreme Court decided that the Senate’s condemnation was eminently political. The Court used self-restraint to forbid itself to review the decision.28 The problem is that this precedent lacks clarity. The Federal Supreme Court could interfere if the constitutional rights of those involved were violated. It is remarkable that, at that time, a Federal Supreme Court justice quoted a passage from Raoul Berger that would strengthen the judicial review of impeachment if the supposed offences were outside constitutional authorisation.29 Considering the completely different historical context, one could imagine that the current Court would have reached a different conclusion. Yet, what has occurred is that some justices have already proclaimed their positions, clearly violating the impartiality and functional rules that exist in Brazil.30 Federal Supreme Court Chief Justice Cármen Lúcia, who held the position between 2016 and 2018, used her discretion to avoid bringing the proceedings to judgment.31 After Justice Zavascki passed away, the new justice rapporteur of the case was Alexandre de Moraes, Michel Temer’s ex-minister of justice and affiliated with the PSDB (Partido da Social Democracia Brasileira, the Brazilian Social Democracy Party) until recently.32 Justice Moraes rejected the claim on the basis that the plaintiff did not prove any illegality and that the Federal Supreme Court could not substitute the condemnation by the Federal Senate.33

28 See Federal Supreme Court, MS 21.689, 16 December 1993, www.stf.jus.br/arquivo/cms/sobrestfconhecastfjulgamentohistorico/anexo/ms21689.pdf. 29 ‘One who enters government service does not cease to be a «person» within the Fifth Amendment, and an impeachment for offenses outside constitutional authorization would deny him the protection afforded by “due process”. It would be passing strange to conclude that a citizen may invoke the judicial “bulwark” against a twenty-dollar fine but not against an unconstitutional impeachment, removal from and perpetual disqualification to hold federal office’. R Berger, Impeachment: The Constitutional Problems (Cambridge, MA, Harvard University Press, 1973) 116–17. 30 Congresso em Foco, ‘Ministros do STF criticam referências a “golpe”’, Congresso em Foco, 21 April 2016, congressoemfoco.uol.com.br/noticias/ministros-do-stf-criticam-referencias-a-golpe. The Federal Supreme Court ruled on the same Rousseff impeachment in the ADPF 378 right at the start of the procedure. In this case, the Court went into much more detail, but relied on the idea that there was not, at the time, a need to discuss the merits of the accusations. See Federal Supreme Court, ADPF 378, 17 December 2016, www.stf.jus.br/portal/processo/verProcessoAndamento. asp?incidente=4899156. 31 There is a huge gap in the proper rulings for the judicial docket in Brazil and the ways to control it. See D Arguelhes and I Hartman, ‘Timing Control Without Docket Control: How Individual Justices Shape Federal Supreme Court’s Agenda’ (2017) 5 Journal of Law and Courts 105 (discussing how Federal Supreme Court Justices have the power to control the court’s agenda by formal and informal means). 32 J Benvindo, ‘Brazil’s Increasingly Politicized Supreme Court’, 16 February 2017, I-CONnect Blog, www.iconnectblog.com/2017/02/brazils-increasingly-politicized-supreme-court. 33 See Federal Supreme Court, MS 34.441, 10 December 2018, portal.stf.jus.br/processos/ downloadPeca.asp?id=15339228479&ext=.pdf. For a critical assessment of the Federal Supreme Court

Ruling on Presumption of Innocence  113 III.  RULING ON PRESUMPTION OF INNOCENCE: BALANCING AND UNBALANCING CONSTITUTIONAL RIGHTS

The impacts of the rulings from the 2015–2016 judiciary terms would not end here. In February 2016, the Federal Supreme Court ruled on a sensitive fundamental right in Brazil: the presumption of innocence. The 1988 Constitution guarantees that no one shall be considered guilty until the last appeal of a criminal conviction is ruled as final (res judicata). Comparatively, some constitutions make explicit associations between the presumption of innocence and res judicata. Albania’s 1988 Constitution demands a final ruling to set aside the presumption of innocence (Article 30). Angola’s 2010 Constitution establishes the presumption of innocence until a final decision involved by res judicata (Article 67(2)). The Bulgarian Constitution of 1991 also demands a final ruling (Article 31(3)); the Croatian Constitution of 1991, in its Article 28, mentions a final judgment to restrict the presumption of innocence. Similar clauses are found in the Dominican Republic’s Constitution of 2010 (Article  69(3)), Ecuador’s 2008 Constitution (Article  76(2)), the 1947 Italian Constitution (Article  27), Poland’s Constitution of 1997 (Article  42(3)), the Portuguese Constitution of 1976 (Article 32(2)) and Romania’s Constitution of 1991 (Article 23(11)). The still-conservative Federal Supreme Court was not ready for the innovations brought in by the 1988 Constitution. It continued to decide that an appeals court ruling was enough for a defendant to do time, even if other courts could reverse it. In 2009, the Federal Supreme Court recognised that not only should appeals to the second jurisdiction in the judicial system (courts of appeal) be ruled upon to allow for imprisonment, but also appeals to the supreme and superior courts. These include appeals to the Federal Supreme Court (the extraordinary appeal or recurso extraordinário) or to the Brazilian Superior Court of Justice (which rules on special appeals or recurso especial).34 In other words, no one could be sent into the populous Brazilian incarceration system as a result of final condemnation before the superior courts had concluded the proceedings – except in cases of pre-trial detention (prisão temporária, temporary detention, or prisão preventiva, preventive detention). In February 2016, however, the Court decided to overrule that precedent. It concluded that those appeals to the Supreme and Superior Courts are not able to revise the facts of the case and that the number of appeals that allowed for a reversed judgment were minimal, delaying the execution of the condemnations.35 positions on the Rousseff impeachment process, see A Megali Neto, ‘Controle Jurisdicional do Processo de Impeachment: o Impeachment da Presidenta Dilma Rousseff perante o Supremo Tribunal Federal’ (Masters’ dissertation, Federal University of Minas Gerais, Belo Horizonte, 2020). 34 See Federal Supreme Court, HC 84.078, 5 February 2009, redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=AC&docID=608531. 35 See Federal Supreme Court, HC 126.292, 17 February 2016, redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=TP&docID=10964246. It is important to note that another way of gaining access to these courts and having some success is filing a writ of habeas corpus.

114  Judges and Courts Destabilising Constitutionalism On overruling the 2009 precedent, Justice Barroso’s opinion suggested that the presumption of innocence is a principle, not a rule. After condemnation by a court of appeals – the second moment of judgment – the court would be allowed to balance the presumption of innocence against the public interest in criminal law enforcement. Then, Barroso expressly mentioned Robert Alexy’s idea that constitutional rights are optimisation requirements in a sense that has been, since at least the end of 1990s, the dominant theory of constitutional interpretation in Brazil, as in other countries and supranational courts.36 Justice Barroso remarked that the absence of an immediate prison sentence after the confirmation of the condemnation by a court would mean a violation of the principle of proportionality in its prohibition against insufficient protection. He also stated that the same idea of the presumption of innocence has gone through a constitutional mutation, evoking – but without citing – the authoritarian construction made by Paul Laband, Georg Jellinek and Hsü Dau-Lin in Germany.37 In the end, his opinion would weaken the same normative text of the 1988 Constitution. By October 2016, the Federal Supreme Court would confirm this perspective, by a majority in a cautionary order, in two other cases relating to lawsuits on concentrated constitutional review.38 Justice Barroso’s opinion enshrines a judicial power that uses foreign innovations to substitute textual approaches in the name of new constitutionalism. The result, however, is that constitutional adjudication is transformed into a politicised activity. Such proportionality analysis produced broader political effects. It would take three years and the anticipated imprisonment of a former president and diverse defendants for the Federal Supreme Court to conclude the concentrated constitutional review cases (ADCs 43, 44 and 54).39 A new majority was formed and the thesis on the flexibility of the presumption of innocence was rejected. Again, imprisonments can only occur in the middle of a criminal

36 See R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002); E Meyer, Decisão e Jurisdição Constitucional (Rio de Janeiro, Lumen Juris, 2017) 219; J Benvindo, On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism (Heidelberg, Springer, 2010). For a broader perspective on the use of the proportionality, see A Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge, Cambridge University Press, 2012) and V Jackson and M Tushnet, Proportionality: New Frontiers, New Challenges (Cambridge, Cambridge University Press, 2017). 37 All of them, with different points of view. For the idea of ‘constitutional mutation’ in German Public Law, see F Pedron, Mutação Constitucional na Crise do Positivismo Jurídico (Belo Horizonte, Arraes Editores, 2012); see also P Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durham and London, Duke University Press, 1997); A Jacobson and B Schlink, Weimar: A Jurisprudence of Crisis (Berkeley and Los Angeles, University of California Press, 2000). 38 See Federal Supreme Court, MC nas ADC’s 43 e 44, Justice Barroso opinion, 5 October 2016, s.conjur.com.br/dl/voto-ministro-barroso-prisao-antes.pdf. 39 See Federal Supreme Court, ADC’s 43, 44 e 54, judgment of 7 November 2019, portal.stf.jus.br/ processos/detalhe.asp?incidente=4986065.

Ruling on Presumption of Innocence  115 procedure in the form of pre-trial detentions. The petitioners wanted the Federal Supreme Court to end the controversy over the constitutional interpretation of Article 283 of the Brazilian Criminal Procedure Code: the provision indicated that no definitive imprisonment could take place before a final ruling, except in the cases mentioned by the Act. Compare the constitutional and the statutory redactions: 1988 Constitution: Article 5 … LVII – no one shall be considered guilty before the criminal conviction has becomes final and non-appealable [;] Criminal Procedure Code: Article 282 – No one shall be arrested unless in flagrante delicto or by written and substantiated order of a competent judicial authority, as a result of pretrial detention or by reason of a final criminal conviction that became final and non- appealable.

In 2019, Justice Rosa Weber’s opinion was exemplary in recovering the 2009 precedent. She stated that this was one of the most controversial cases in the Federal Supreme Court since the enactment of the 1988 Constitution. As society was becoming progressively more polarised and as the case could lead to the liberation of ex-President Lula, the ruling would implicate the Court more deeply in Brazilian mega-politics. Justice Weber pointed out that, during the Constituent Assembly of 1987–1988, broader definitions of the presumption of innocence were rejected in favour of associating it with a final and nonappealable judicial ruling. However, a conservative court that dated back to the dictatorship of 1964–1985 maintained a reading that did not promote the normative force of the presumption of innocence right of the 1988 Constitution. In 2009, a new composition reverted the conservative reading. And in 2011, the Criminal Procedure Code was reformed following the Federal Supreme Court overruling. Justice Rosa Weber also pointed out that contemporary criticisms against the parliamentary representation could not reduce the force of constitutional guarantees. On the constitutional right of presumption of innocence provided for by the 1988 Constitution, the Federal Supreme Court maintained the 1964–1985 dictatorship’s interpretation after the enactment of the new constitution. Subsequently, in 2009, the Court overruled this reading, replacing it with a more liberal interpretation. However, in 2016, the tribunal returned to the conservative perspective, under pressure from the media and the impact of Operation Car Wash. Finally, in 2019, and by a majority of six justices against five, the Court returned to the liberal interpretation of 2009. Such instability on the reading of the 1988 Constitution, especially on a matter with clear political connotations, would have serious consequences for the image of the Federal Supreme Court and the image of the judicial branch as a whole.

116  Judges and Courts Destabilising Constitutionalism IV.  IMPRISONING THE EX-PRESIDENT

The Federal Supreme Court ruling on the presumption of innocence produced direct effects in the 2018 presidential elections. After being condemned by thenFederal Judge Sérgio Moro in a criminal complaint on supposed bribery and money laundering in exchange for a flat on the Brazilian coast, ex-President Lula faced the possibility of imprisonment before a final ruling. Moro convicted Lula in 2017 and the condemnation was confirmed by a federal court of appeal in January 2018, during a period in which the Federal Supreme Court held that these two rulings were enough to send someone to prison. It is noteworthy that several accusations of lack of impartiality did not prevent Federal Judge Moro from issuing a warrant and jailing Lula. The Federal Supreme Court ruled on a slim majority (six majority opinions and five dissenting ones) on a writ of habeas corpus filed by the ex-president, based on Justice Rosa Weber’s opinion. She was the justice who said that her position favoured a ‘collegiality principle’. Weber did not think the presumption of innocence could be restrained, though, in that concrete case, she felt the Court needed to be less incoherent.40 Weber maintained that the Court could not mix the objective constitutional control in ADCs 43, 44 and 54 with a subjective demand in a writ of habeas corpus. However, she used one single case to build coherence with something she did not believe was right. In 2019, her authentic interpretation of the presumption of innocence in the constitutional review procedures would prevail. One must bear in mind, however, that when Lula filed his writ of habeas corpus, he was the leading candidate in the presidential election polls.41 The Federal Supreme Court’s internal politics for setting the dock of judgment also figure here. Recondo and Weber pointed out that, during her presidency (2016–2018), Chief Justice Cármen Lúcia persistently avoided meeting with all other courts’ justices to deliberate on solving the crisis on the presumption

40 See Federal Supreme Court, HC 152.752, 5 April 2018, www.stf.jus.br/portal/processo/ verProcessoAndamento.asp?numero=152752&classe=HC&origem=AP&recurso=0&tipoJulgam ento=M. See also L Streck and E Meyer, ‘O HC de Lula – maioria transformada em minoria: a “colegialidade” em ação!’, Conjur, 5 April 2018, www.conjur.com.br/2018-abr-05/opiniao-hc-lulamaioria-transformada-minoria. The criminal complaint against Lula is filled with irregularities, beyond Moro’s suspected competence. In the same Operation Car Wash, appeals in the Fourth Federal Regional Tribunal took 96 days to be tried. Lula’s appeal was tried in 42 days (E Carazzai and J Tavares, ‘Recurso de Lula foi o que mais rápido chegou à 2ª instância’, Folha de S Paulo, 25 August 2017, www1.folha.uol.com.br/poder/2017/08/1912821-recurso-de-lula-foi-o-que-mais-rapido-ch egou-a-2-instancia.shtml. For further information on Lula’s advocates perspective, see G Robertson, ‘The Case for Lula: He Deserves a Fair Trial, Not Persecution’, Foreign Affairs, 19 April 2017, 2017, www.foreignaffairs.com/articles/brazil/2017-04-19/case-lula. 41 In August 2018, two months before the elections, Lula had the support of 39% of voters, against 19% for Bolsonaro. See G1, ‘Pesquisa Datafolha: Lula, 39%; Bolsonaro, 19%; Marina, 8%; Alckmin, 6%; Ciro, 5%’, G1, 22 August 2018, g1.globo.com/politica/eleicoes/2018/eleicao-em-numeros/ noticia/2018/08/22/pesquisa-datafolha-lula-39-bolsonaro-19-marina-8-alckmin-6-ciro-5.ghtml.

Imprisoning the Ex-President  117 of innocence case law. Her move affected Lula’s run for the presidency.42 She told the Court’s dean Justice Celso de Mello that she would accept the meeting. Nonetheless, the Chief Justice preferred to take the issue to the press and declare that there would be no reason to change jurisprudence that had been so recently modified. Justice Cármen Lúcia knew that, if she set the judgment of the abstract constitutional review lawsuits, there would be a chance for a move in favour of Lula. Instead, she preferred to set the writ of habeas corpus for trial. Furthermore, the army’s commander at that time declared via Twitter that his institution ‘repudiate[s] impunity’, a fact that would pressure the Court.43 This declaration reverberated widely through the media, prompting one Federal Supreme Court justice to confront it overtly during the trial. The statement is an example of the bad relationship between military and civilian authorities in Brazil and, as already mentioned, produced effects in the years to come. After resisting for two days in a trade union building surrounded by supporters and politicians, ex-President Lula was sent to jail in Curitiba on 7 April 2018. The following day, the cooperation of the Brazilian judiciary in facilitating unstable constitutionalism would become all-too clear. Three lawyers who were also Worker’s Party representatives in the Chamber of Deputies filed a writ of habeas corpus in the Fourth Federal Regional Tribunal against the acts practiced, not by former Judge Sérgio Moro, but by the federal judge responsible for the prison’s oversight. They argued that the imprisonment was unnecessary, and that Lula had had his political rights restricted, since he could not participate in political debates for his presidential campaign. The 1988 Constitution states that only a final ruling in criminal procedures can suspend political rights. In the Fourth Federal Regional Tribunal, at 9:05 am, Judge Rogério Favreto (who became a member of the Court with an appointment by Dilma Rousseff and who was a former member of the Worker’s Party), exercising jurisdiction in duty (it was a Sunday, but Brazilian law provides for functions during those periods on an urgent basis), granted the order on the grounds that Lula’s political rights had been unduly affected.44 At 12:05 pm, Federal Judge Sérgio Moro (not a member of the Fourth Federal Regional Tribunal, and who was on vacation) delivered a ruling in the original criminal complaint, stating that the member of the appeals court had no competence to rule in favour of Lula.45 At 12:24 pm, Judge Rogério Favreto reaffirmed his ruling determining Lula’s immediate release.46 The original writ 42 F Recondo and L Weber, Os Onze: O STF, Seus Bastidores e Suas Crises (São Paulo, Companhia das Letras, 2019) 372. 43 See E Londoño and S Darlington, ‘Lula, Brazil’s Ex-President, Can Be Jailed, Court Rules’, NY Times, 2018, www.nytimes.com/2018/04/04/world/americas/brazil-lula-corruption-prison.html. 44 Brazilian Fourth Federal Regional Tribunal, HC 502561440.2018.4.04.0000/PR, 8 July 2018, estaticog1.globo.com/2018/07/08/DESPADEC.pdf. 45 Brazil, 13th Federal Court of Curitiba, AP 5046512-94.2016.4.04.7000/PR, 8 July 2018, estaticog1.globo.com/2018/07/08/decisao_08072018_consulta.pdf. 46 Brazilian Fourth Federal Regional Tribunal, HC 502561440.2018.4.04.0000/PR, 8 July 2018, estaticog1.globo.com/2018/07/08/DESPADECHO_2.pdf.

118  Judges and Courts Destabilising Constitutionalism of habeas  corpus judge rapporteur, Gebran Neto, at 2:13 pm, issued another ruling ordering that the federal police should not practise any act that could lead to the release of the ex-president. Again, at 4:04 pm, Federal Judge Favreto ordered Lula to be freed and criticised Judges Moro and Gebran Neto.47 Finally, at 7:30 pm, Federal Judge Thompson Flores, President of the Fourth Federal Court of Appeals, decided that the ruling of the original criminal lawsuit judge rapporteur Gebran Neto to keep Lula imprisoned should prevail. Thompson Flores had no jurisdiction over the writ of habeas corpus whatsoever.48 An analysis of the different rulings concerning the guilt of ex-President Lula is a separate subject in its own right. Lula was finally prevented from running in the presidential election after an Act halting the criminally convicted from running for political offices was applied to him. In 2020, Federal Supreme Court Justice Edson Fachin declared that taking Lula out of the race for the presidency contributed to the democratic recession the country was now facing.49 Lula would be freed by the Federal Supreme Court ruling in ADCs 43, 44 and 54. However, this series of events gives a glimpse into how Brazilian judicial authorities can be far from concerned with the Brazilian regime’s constitutional stability. V.  CONSTITUTIONAL COURTS AND POLITICAL INSTABILITY

Taking into account the fact that constitutionalism does not only build barriers, but creates conditions of possibility for democracies, one must locate the best constitutional design available to understand the role of judges and courts. In transitional societies, judicial authorities gain more attention since they can work as institutional guarantors of constitutions. Samuel Issacharoff tried to identify – in post-conflict or post-authoritarian regimes – the devices which enable a constitutional court’s leading role in consolidating democracy in fragile situations, acting in a ‘critical process limitation on the exercise of democratic power’.50 The author characterises ‘fragile democracies’ as those that inherit political authority from authoritarian regimes and where political

47 Brazilian Fourth Federal Regional Tribunal, HC 502561440.2018.4.04.0000/PR, 8 July 2018, congressoemfoco.uol.com.br/especial/noticias/desembargador-volta-a-ordenar-soltura-de-lula-aposgebran-negar-habeas-corpus. 48 Brazilian Fourth Federal Regional Tribunal, SL 5025635-16.2018.4.04.0000/PR, 8 July 2018, politica.estadao.com.br/blogs/fausto-macedo/wp-content/uploads/sites/41/2018/07/THOMPSON. pdf. 49 Conjur, ‘Impedir a candidatura de Lula fez mal à democracia, diz Fachin’, Conjur, 18 August 2020, www.conjur.com.br/2020-ago-18/impedir-candidatura-lula-fez-mal-democracia-fachin?utm_ source=dlvr.it&utm_medium=facebook. 50 S Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts (New York, Cambridge University Press, 2015) 12. A second role can be illustrated by the control over the enforcement of constitutional rules against dominant parties inherited from the authoritarian regime.

Constitutional Courts and Political Instability  119 institutions or civil society supporting groups are not able to manage political conflict.51 It is hard to simply accept this concept for a transition such as the one that occurred in Brazil, where elite groups have always disputed the occupation of the three branches. For the purposes of this chapter, one should verify the positions that judges must adopt to avoid acting only as a political branch – something that has not been the pattern in Brazil. It must be recognised, however, that there can be fine lines between law and politics in a supreme or constitutional court. Yet, one must take the relationship between the judicial branch (mainly the constitutional and supreme courts) and the democratic process seriously to avoid the juridical system to be openly tamed by pure politics. Issacharoff’s analysis is important, as it focus on the judicialisation of politics, especially in cases of impeachment processes. He presents, for instance, the case of the Constitutional Court of Mongolia.52 To define the government system as a presidential one, the Court confronted the parliament. In both 1996 and 1998 it ruled that members of the legislative branch cannot hold presidential cabinet positions. Although reading the Court’s argument as a constitutional commitment to stabilise governance, Issacharoff notes that this case is an important one as the courts defined the basic idea of democracy for society.53 In contrast, seminal cases such as Luther v Borden, 48 US 1 (1849), which illuminated the birth of political question doctrine, would affect the American courts’ dominant view on the lack of judicial oversight for impeachment processes.54 Under the US Constitution (Article II, Section  4), the president can be impeached for treason, bribery, or high crimes and misdemeanours. For the Andrew Johnson and Bill Clinton cases, the same phrase, ‘high crimes and misdemeanors’, gave space to accusations that brought presidential acts to political light. In the case of Johnson, it is essential to remember that the impeachment Articles would rely on the supposed violation of the Tenure of Office Act. That means that an act with juridical effects shall be presented from the beginning. In Clinton’s situation, ‘perjurious, false and misleading testimony’ and ‘obstructing justice’ would have not only a juridical character, but also a criminal one. However, they were not grave enough to remove the president from office. For the first Donald Trump case, the seriousness of the accusations was defined by the House of Representatives: to ask for a Ukrainian intervention 51 ibid, 10. 52 There are sharp differences, as well as similarities, between, on one hand, the cases of Mongolia, South Korea, the Czech Republic and Pakistan and, on the other, Brazil. However, Brazilian constitutional scholars tend generally to highlight stable democracies (such as the United States or Germany) when evaluating the case of Brazil. In this sense, the proposal here is to highlight other constitutional comparative parameters and expand the comparisons. 53 ibid, 194. 54 The US Supreme Court recently refused to accept federal jurisdiction over gerrymandering on the basis that they are political questions. See Rucho v Common Cause, 588 US ___ (2019). See also KL Scheppele, ‘How Trump Can Be Re-Elected Even Though Majorities Oppose Him (Not Because the US is Populist, but Because the Rules are Rigged)’ (manuscript with the author, Princeton, 2019).

120  Judges and Courts Destabilising Constitutionalism in American  elections and to obstruct the Congress by defying subpoenas.55 That is, for the phrase ‘high crimes and misdemeanors’, a juridical qualification should stand, even if not a criminal one: the question is if, for the safety of democratic procedures, courts can avoid impeachment processes used only for controversial or illegal political aims.56 Although Tribe recognises that no judicial oversight is due in impeachment processes, he calls for a congressional responsibility on interpreting ‘high crimes and misdemeanors’ to avoid understanding it as a ‘category … purely politicised in character or definitio[n]’.57 It seems that, on the one hand, the object of impeachment Articles must put the constitutional project in peril; it must be a grave act. On the other hand, the president can be severely punished, and the presidential system calls for executive stability. In this sense, criminal procedural guarantees must be granted to the accused. An accusation that disregards that the president oversees a complicated chain of command or stay in the realm of political administration and budget politics cannot merely be read as designing impeachable offences. That is why courts must, in cases like these, supervise the procedural rules and the primary accusation. The American system is the object of comparison by Issacharoff with the Czech and South Korean systems. In the case of the Czech Republic, the impeachment of Václav Klaus, who was accused of using the presidency to meet his personal agenda, was passed by the Senate by a 38:30 majority. Nonetheless, the Czech Republic Constitution (Article 65(2)) states that the process is authorised by the Chamber of Deputies, though the president is impeached by the Senate and, finally, tried by the Constitutional Court. Weighing aspects of possible future partisan uses of impeachment aimed at exclusion from political life, the Constitutional Court considered the fact that Klaus’s term had ended to avoid ruling on the impeachment.58

55 See US House of Representatives, ‘H.Res.755 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors’, www.congress.gov/bill/116th-congress/houseresolution/755/text. Trump was accused for a second time after the invasion of the Capitol in the final days of his term; he would have fueled his supporters to avoid the Joint Session of certification of the presidential elections. Trump was impeached, although acquitted by the Senate after President Joe Biden had taken office. See US Senate, ‘Proceedings of the United States Senate in the Impeachment Trial of Donald John Trump Parts I – III’, www.govinfo.gov/app/details/CDOC-117sdoc2/context. 56 See O Stephens Jr and J Scheb II, American Constitutional Law: Sources of Power and Restraint (Belmont, Thomson Wadsworth, 2008) 174. 57 See L Tribe, American Constitutional Law (St Paul, Foundation Press, 2000) 154. 58 Klaus was impeached by the Senate on 4 March 2013; three days later, his term was over. The Czech Republic Constitutional Court holding was handed down on 28 March 2013. It is interesting to compare this case with Brazil’s ex-President Fernando Collor: while Collor resigned right after the Senate session that would try him had started, the Federal Supreme Court decided that, even if he could no longer be condemned to losing office, there was no obstacle in the 1988 Constitution to applying to him the exclusion from public offices for eight years established in Article 52. The political tone of this ruling cannot also be neglected. See Federal Supreme Court, MS 21.689, judgment of 16 December 1993, www.stf.jus.br/arquivo/cms/sobrestfconhecastfjulgamentohistorico/anexo/ ms21689.pdf.

Constitutional Courts and Political Instability  121 Issacharoff also considers the case of South Korea’s ex-President, Roh Moo-hyun. He was accused of using his office to find support for his political party during a National Assembly election, in which the National Assembly must accept, by a two-thirds majority, a motion proposed by the majority of members, suspending the president until the Constitutional Court can try him.59 The South Korean Constitutional Court agreed with the National Assembly that Roh Moo-hyun had committed several constitutional infractions. Yet, the Court did not agree that the impeachment process should continue, mainly because partisan political activity cannot undermine constitutional rules.60 The case of Roh seems to reinforce the distinction between the presidential system and parliamentarism, as the necessary intervention by courts occurs where the boundaries of politics and the law blur entirely. Of course, one must consider that the Czech Republic and South Korean cases are different in the sense that their constitutions attribute jurisdiction for impeachment trials directly to the courts. In the United States or Brazil, judges should only guarantee procedural rules. The issue is that, from a constitutional point of view, if only bad politics are at stake and if they dominate the way an impeachment is managed, even in the definition of the Articles, judicial omissions cannot be tolerated. Nonetheless, at least at first glance, Issacharoff’s analysis seems to rely excessively on how constitutional courts can fight legislative and executive hypertrophies. The issue in Brazil currently appears to be skewed in the direction of the judiciary. If the judicial branch refused the Constitutional Court’s way out during the Brazilian Constituent Assembly of 1987–1988, the consequences of the absence of a real transformation were seen through the transition and were widened in the years 2016–2018. Consider that the Brazilian Superior Electoral Court dismissed the accusation of illegal campaign funding against the Rousseff/Temer slate – a calling for another court to confront the possibility of changing the way politics is done in Brazil.61 The dismissal was carried out when President Temer was already in power, and led to the emergence of very partisan debates on avoiding political instability if the Court removed him. Besides this, comparative models, such as South Africa or Germany, do not seem to fit. In both these cases, at least concerning the apex of constitutional interpretation, the courts were filled with new minds collected from the opposition to the previous authoritarian regimes. Plus, from a comparative point of view, the German example also offers reasons for concern: the proportionality analysis seems to have a great deal to do with the extra empowerment of

59 South Korea Constitution, Chapter III, Article 65(2),(3); Chapter VI, Article 1(2). 60 S Issacharoff, Fragile Democracies (2015) 199. 61 See A Boadle and R Brito, ‘Brazil Electoral Court Dismisses Case That Could Have Ousted President’, Reuters, 9 June 9 2017, www.reuters.com/article/us-brazil-politics-ruling-idUSKBN19033V.

122  Judges and Courts Destabilising Constitutionalism the courts.62 The way the Federal Supreme Court has imported this notion has been cause for local doctrinal concerns since at least the 2000s, and the same proportionality idea provided room for leaving the constitutional text behind, as was shown in the presumption of innocence case described above.63 It is crucial, then, to define a weak democracy and how courts can cooperate in strengthening it. It is remarkable that, since the very first moment of the 2014 Brazilian presidential election results, the PSDB party has provoked the Superior Electoral Court to declare the illegitimacy of the Rousseff/Temer slate. The PSDB, however, was supporting the MDB (Movimento Democrático Brasileiro, the Brazilian Democratic Movement) in the executive branch with ex-President Temer at the time of the judgment. The PSDB and MDB put into practice a political plan that was defeated in the 2014 election. Issacharoff’s analyses of Schumpeter’s account of democracy is correct in arguing for competitive elections for new democracies.64 Nonetheless, the political opposition to the leftist PT’s governments used the wrong tools to achieve political power and what should be an opportunity for the Federal Supreme Court to avoid a real political instability became its way of participating in politics. All in all, the issue is that PT did not gain excessive political power right after the transition years (1985–1988). They remained in power from 2002 onwards and won competitive elections in 2006, 2010 and 2014. The problem is that the force of coalitional presidentialism one-party domination came not from the PT, but from the ever-present governability agent, the MDB (see chapter eight). Some contradictions are also at stake here. In a comparative analysis, the South African Constitutional Court refused to create a substantive account of democracy when it declined to rule on the illegitimacy of high-burden requirements on the political party anti-defection norms established by the South African Constitutional Amendment Act of 2003.65 The Federal Supreme Court in 2007 was responsible for creating, based on constitutional principles such as the republican one, anti-defection rules that were not expressly defined in the 1988 Constitution. It forbade political party change during a term in office except in cases of a ‘just cause’, such as creating a new political party or internal discrimination.66 Currently, nonetheless, no substantive account of an impeachment judgment has been made by the Court, even if there is a fragile 62 See J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy’ (Cambridge, MA, The MIT Press, 1996) §6. For a theoretical critique, see F Urbina, A Critique of Proportionality and Balancing (Cambridge, Cambridge University Press, 2017). 63 See M Cattoni, Devido Processo Legislativo (Belo Horizonte, Fórum, 2016); L Streck, Jurisdição Constitucional e Decisão Jurídica (São Paulo, RT, 2013); J Benvindo, On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism (Heidelberg, Springer, 2010). 64 Issacharoff (n 49) 246. In 2014, the Rousseff/Temer (PT/MDB, mostly) slate beat the Aécio/ Nunes slate (PSDB) by a small margin of 3.3% of the total votes. 65 See United Democratic Movement v The President of the Republic of South Africa, 2003 (1) SALR 495 (CC) (S Afr). 66 Federal Supreme Court, MSs 26.602, 26.603 and 26.604, judgment of 10 April 2007, redir.stf.jus. br/paginadorpub/paginador.jsp?docTP=AC&docID=555539.

Constitutional Courts and Political Instability  123 accusation or if the process is used to achieve divergent aims. In other words, the Federal Supreme Court seems to act politically and selectively. Concerning the impeachment process of Rousseff, the Federal Supreme Court’s inaction could be described as a ‘judicial underreach’.67 Furthermore, this situation of politicisation of judicial adjudication is not unique to Brazil in the region. The Argentinean Supreme Court ceded to a new composition that would defy years of consolidating jurisprudence towards the superiority of human rights interpretations in favour of a regional system conducted by the IACtHR.68 The Venezuela Supreme Tribunal attempted a real coup d’état by seizing congressional legislative functions, though it backed down in the face of domestic and international pressure.69 All these cases show how courts are clearly inside what Hirschl called mega-politics. It is not hard to adapt Hirschl’s viewpoint on juristocracy to what has been occurring in Brazil. Even if he directs his analyses to the Canadian, Israeli and New Zealand cases, adding South Africa for its challenging and nuanced qualities, some of the remarks in the explanation of a process towards juristocracy seem to apply to the Brazilian single transition scenario.70 In particular, the constitutionalisation is due to self-interested hegemonic preservation with political, economic and judicial actors building institutions that could benefit themselves. In the case of Brazil, the democratic character of the Constituent Assembly of 1987–1988 was fought by conservative forces, mainly in the formation of the judicial branch. But this challenge has been recently reinforced extraordinarily, mostly with the support of the same actors interested in changing politics: the media, the privileged classes and the so-called ‘juridical-police apparatus’ (chapter three).71

67 In order to make a comparison with executive underreach, as referred in D Pozen and K Scheppele, ‘Executive Underreach, in Pandemics and Otherwise’ (2020) 114 American Journal of Comparative Law 608. 68 Argentina, Corte Suprema de Justicia de la Nación (CSJN) (National Supreme Court of Justice), CSJ 368/1998, judgment of 14 February 2017, www.cij.gov.ar/nota-24822.html. 69 Venezuela, El Tribunal Supremo de Justicia, Sala Constitucional, Recursos de Interpretación, judgment of 3 March 2017. 70 Hirschl (n 6) 11. Hirschl presents six main scenarios of constitutionalisation: a) the reconstruction wave after World War II; b) the independence scenario of post-colonial countries; c) the single transition scenario from authoritarian to democratic rule, including that of Brazil; d) the dual transition scenario from both authoritarian and socialist models; e) the incorporation scenario that captures the situations of countries that were impacted by international and supranational norms, like Sweden, Denmark and the UK; f) the ‘no apparent’ scenario, with constitutional reforms that do not significantly change political and economic regimes, like Canada and New Zealand. 71 Souza divides Brazilian society into the following categories: a) the economic and moneyed class or elite; b) the medium class that serves the domination of the moneyed elite in disfavour of the popular classes; c) a working class; d) the excluded class, which is situated under the dignity qualification. The sociologist uses Bourdieu’s ideas to create these categories, referring not only to economic capital but also to cultural and personal relationship capital. The medium class, in which judges could be included, uses a great amount of cultural capital but also, of course, needs economic and social capital. See J Souza, A Radiografia do Golpe (São Paulo, LeYa, 2016) 59–60.

124  Judges and Courts Destabilising Constitutionalism Hirschl mentions that political, economic and judicial elites, who are usually eager to protect or inflate their political influence, play a key role in constitutional reforms towards juristocracy. The difference for the Brazilian situation is that the constitutionalisation allowed by the 1988 Constitution was not only due to elites’ manoeuvres, but also popular pressures. Civil society pushed for a constitution that could entail a social constitutionalism that would call on judges for its enforcement vis-à-vis legislator omissions. In the 1990s, the Federal Supreme Court jurisprudence was mostly auto contentious to avoid the effectiveness of rights, using the argument that statutory regulation was needed (chapter two).72 In the 2000s, this case law was revolutionised with the aid of a politicisation process that was understood by other courts and judges as a moment in which it was necessary for them to act in the absence of correct (in their view) political practices by the other branches. What happened in the 2010s results from the fact that much was done to make this judicial elite a fundamental actor in deciding politics in Brazil. Hirschl’s ideas on the power of constitutionalisation and judicial review to enhance private rights or negative liberties that only requires the state to refrain from excessive interference in social politics are gaining ground in Brazil’s neoliberal and pro-austerity context. Besides, one must consider the failure of the same factors to make a more egalitarian society through socio-economic rights that demand more state intervention. The Federal Supreme Court, based on its interpretation of the 1988 Constitution, recognised the legitimacy of gay marriage, protests in favour of cannabis decriminalisation, the anticipation of anencephalic childbirths, the constitutionality of stem cell research, the ‘unconstitutional state of affairs’ of the prison system73 and the legitimacy of affirmative action quotas in higher education.74 Those were rulings that strengthened fundamental rights that had less budgetary impact. Nonetheless, socio-economic rights directly affected by the far-reaching 20-year-old austerity programme constitutionalised through a Temer administration proposal did not cause too much perplexity in the Federal Supreme Court. The 1988 Constitution prevents legislators from even deliberating on 72 See Federal Supreme Court, MI 372, judgment of 1 August 1994, redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=AC&docID=81794. 73 See Federal Supreme Court, MC na ADPF 347, judgment of 9 September 2015, portal.stf.jus.br/ processos/detalhe.asp?incidente=4783560. For a critical assessment of this ruling, see D Arguelhes, ‘Transformative Constitutionalism: A View from Brazil’ in P Dann, M Riegner and M Bönneman (eds), The Global South and Comparative Constitutional Law (Oxford, Oxford University Press, 2020) 165. 74 See Federal Supreme Court, ADI 4.277 and ADPF 132, judgment of 5 May, 2011, redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=AC&docID=628633; Federal Supreme Court, ADPF 187, judgment of 15 June 2011, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=5956195; Federal Supreme Court, ADPF 54, judgment of 12 April, 2012, redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=TP&docID=3707334; Federal Supreme Court, ADI 3.510, judgment of 29 May 2008, redir. stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=611723; Federal Supreme Court, ADPF 186, judgment of 26 April 2012, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID= 6984693.

Unstable Constitutionalism in Brazil  125 constitutional amendments that can abolish the Bill of Rights. As mentioned in chapter two, Justice Barroso refused to interfere in the legislative process, arguing that no fundamental rights would be affected.75 He denied any aggression to the entrenchment clauses established in the 1988 Constitution (Article 60, § 4º, among them, fundamental rights and popular periodical vote) and affirmed his own view on the necessity of austerity measures and the ‘size’ of the Brazilian state.76 The argument sounded much more like a free adherence to the institutional economic models designed by Hirschl, by which judicial review should act as the guarantor of investors’ main interests regarding how an economy should function.77 ‘Typically, the pro-constitutionalisation elites are made up of the urban intelligentsia, the legal profession and the managerial class.’78 If one swaps ‘proconstitutionalisation’ for the ‘politicisation of the judiciary’, it is possible to have a complete view of the Brazilian picture. VI.  UNSTABLE CONSTITUTIONALISM IN BRAZIL

Through the lens of Tushnet and Khosla’s unstable constitutionalism, Brazilian courts and judges have contributed as components of the constitutional separation of powers arrangement to bring instability to the system designed by the 1988 Constitution. The authors conceptualise unstable constitutionalism as an idea that could embrace the obstacles that the law faces when trying to reconcile norms and facts, and when trying to produce more stability in societies that once experienced exceptional circumstances.79 In other words, the idea is to focus on external pressures and domestic risks to the overall constitutional system. Constitutional instability could be the result of pressure from external actors, such as the military or the dominant religion, or be part of anomalies in the exercise of powers by institutional actors inside the constitutional system. For instance, one must consider that the misuse of constitutional adjudication can lead to the mixing of political and legal systems.

75 The Federal Supreme Court recognises that if due legislative process is not applied by the National Congress, Deputies and Senators can appeal to the Court to suspend or interrupt the proposal. See the leading case, prior to the 1988 Constitution: Federal Supreme Court, MS 20.257, judgment of 8 October 1980, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=85046. 76 Federal Supreme Court, MS 34.448, judgment of 10 October 2016, www.stf.jus.br/arquivo/cms/ noticiaNoticiaStf/anexo/MS34448.pdf. 77 For an analysis that reads the constitutional amendment as a ‘dismemberment’ of social rights that are part of the 1988 Constitution, see R Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale Journal of International Law 41; Y Roznai and L Kreuz, ‘Conventionality control and Amendment 95/2016: a Brazilian case of unconstitutional constitutional amendment’ (2018) 5 Revista de Investigações Constitucionais 35. 78 See Hirschl (n 6) 44. 79 See M Tushnet and M Khosla, ‘Introduction’ in M Tushnet and M Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge, Cambridge University Press, 2015) 5.

126  Judges and Courts Destabilising Constitutionalism Pakistan offers a notable example in discussing what role judicial authorities played under Brazilian constitutionalism. Osama Siddique underlines how Pakistani judges’ individual and group behaviours cannot be neglected in the complex phenomena of the judicialisation of politics.80 Many examples in Pakistani politics concern the legitimisation processes that judges led over the last decades, with short periods of democratic rule between periods of martial rule. A truncated constitutional culture combined with weak democratic institutions and an underdeveloped discourse on rights and obligations form a type of unstable constitutionalism that can work as a counterexample for jurisdictions that seek to avoid constitutional erosion. After General Pervez Musharraff’s 1999 coup, the Pakistani Supreme Court invoked the doctrine of necessity to legitimise the institutional rupture, and also to provide the president with constitutional amendment powers using a discourse in favour of guaranteeing integrity, sovereignty and stability. Courts, in this sense, can be strategically provoked to offer tools that stabilise power and destabilise political opponents. They can also play a pivotal role when crisis of government take place, like the Pakistani Supreme Court did in its public interest case law, especially during Chief Justice Chaudhry’s term (2009–2013). Plus, there is also scholarship considering the role of Pakistani courts on administrative law both under military rule and democracy – something that the Federal Supreme Court had constantly done throughout the 1988 constitutionalism, and even before that.81 As in Brazil, the excessive judicialisation of politics led to the blurring of lines between politics and the law. Much of this process can derive from the personal attitudes of members of Constitutional or Supreme Courts, which lead to the expansion of judicial review, capturing public support or assuming that law can better solve all major problems of public interest.82 From 2015 onwards, Brazilian tribunals walked the dangerous path of putting into practice an unstable platform of constitutionalism that is contrary to what was demanded by the 1988 Constitution. The Constitution provides the basis for building a real welfare state and enshrines norms of human dignity, egalitarian societal objectives, integration with Latin America, submission to an international human rights system, including a human rights court, civil liberties and individual, collective and socio-economic rights, regulatory norms on economics, environmental protections and consumer rights. Completing the traditional constitutional law material, even without clear institutional reforms, the 1988 Constitution aimed to keep a collaborative institutional design between the three branches of power with all the defects the distorted

80 O Siddique, ‘The Judicialization of Politics in Pakistan: The Supreme Court After the Lawyer’s Movement’ in Tushnet and Khosla (ibid) 160. 81 ibid, 177. 82 See MH Cheema, ‘Two Steps Forward One Step Back: The Non-Linear Expansion of Judicial Power in Pakistan’ (2018) 16 International Journal of Constitutional Law 503.

Unstable Constitutionalism in Brazil  127 practice of ‘coalitional presidentialism’ would allow (chapter eight). Judicial authorities – mainly the Federal Supreme Court – were empowered with several remedies to concentrate judicial review in the European Kelsenian model. Any of these changes would be enough to block the increasing judicialisation of politics, though less so in times of generalised accusations of corruption against the executive and legislative members. If the way Brazilian politics is conducted has become part of public disclosure through wide criminal procedures, that does not mean that judges and courts should take the place of an uncontrolled sovereign. Back in 2002, the Federal Supreme Court created the TV Justiça (TV Justice), a channel to broadcast trials and other issues related to the Court and other tribunals. The initiative was seen as a hallmark for transparency, one of the most serious problems of the Brazilian judiciary. At the end of 2010s, the idea does not seem so promising. The channel, for instance, gained public attention in the trial of the so-called Mensalão, the first huge corruption scandal to affect the Workers’ Party federal administration. The scandal involved accusations of bribery in exchange for parliamentary votes. The criminal procedure lasted in the Federal Supreme Court from 2005 until 2013.83 Only the merits of the case dominated the full bench of the court in five months of 2012. Most of the debates, deliberations and decisions were broadcast live on TV Justice, capturing the attention of the public. That new way of decision-making projected effects on the behaviour of the justices, and also expanded the criminal jurisdiction of the court.84 From then on, mega-politics would return to the bench continuously, pressing the court to decide on the basis of political arguments on a daily basis. In most of the cases, the predominance of arguments of policy in the ruling’s basis that change according to the different political circumstances is blatant. Despite the fact that the 1988 Constitution made room for a groundbreaking democratic society, threats to democracy returned in an astonishing way, through the collaboration of courts and judges. In the end, Brazilian transitional constitutionalism would not make it possible to reform the judiciary branch. Without effective institutional reforms, Brazil risks being driven towards unstable constitutionalism. As this chapter has noted, there is nonetheless cause for optimism. Brazilian courts are sensitive to fundamental rights. There is still the possibility that they could understand their republican role in guaranteeing the 1988 constitutionalism. Beyond that, there are institutions, such as the National Council of Justice, that could cooperate in fulfilling their constitutional judicial accountability roles. So it seems there is a deadlock, and remedies are needed to heal the

83 Brazil, STF, AP 470, judgment of 18 November 2013, portal.stf.jus.br/processos/detalhe.asp? incidente=11541. 84 I Hartmann et al, ‘A Influência Da TV Justiça No Processo Decisório Do STF’ (2017) 4 Revista de Estudos Empíricos em Direito 38.

128  Judges and Courts Destabilising Constitutionalism problem from the same authorities that provided a dose of the poison. In institutional or theoretical terms, though, what is to be done? Increase the chances of more unstable constitutionalism through another constitution? That seems to be the worst-case scenario, taking into account the present-day political class. Again, courts and judges must stop acting like politicians and start doing what is expected of them: to apply constitutional and legal norms, first, in their most immediate sense and, second, as the 1988 Constitution stipulates.

5 Subverting the Rule of Law The Military vs the Milícias – Eroding Brazilian Constitutionalism

I

n present-day Brazil, two political actors – one elite organisation and one illegal one – share a common background: they have refused to accept, or at least have eroded, the normative character of the 1988 Constitution at the same time as they gained ground in politics. Through different levels of breaching (the military at a softer level and the milícias at a higher level), they gradually undermined the constitutional project. Although there are no signs of joint plans, one must consider that milícias have their origin in criminal activities committed by former members of the military and police forces.1 This chapter argues that the present political moment in Brazil caused the paths of the military and milícias to become entangled. Such coincidences have led to the erosion of the constitutional system of 1988, not only by destabilising Brazilian constitutionalism,2 but by risking the adoption of authoritarian practices. Although it can be argued that constitutional democracies are not, in quantitative comparison, facing peril, there are alarming examples. The literature on the possibility of making constitutions compatible with authoritarianism is not new.3 While this might sound like an oxymoron, one cannot ignore the problem of the slowly rotting institutions of constitutional democracy – as was mentioned in the introduction of this book. Of course, putting tanks on the streets is (at least for now) undesired.4 However, and as this chapter will

1 As this chapter demonstrates, the term milícias was firstly used by the mass media in Brazil to refer to death squads or paramilitary groups that conquered local political power in Rio de Janeiro. The chapter does not simply translate milícias as ‘militias’: whereas this latter phrase usually refers to actors who are not members of the armed forces that can exercise security functions in a legitimate way, Brazilian milícias are clearly unlawful organisations. 2 In comparable ways, although in different degrees, tribunals have also destabilised Brazilian constitutionalism (see chs 3 and 4). 3 T Ginsburg and A Simpser, Constitutions in Authoritarian Regimes (Cambridge, Cambridge University Press, 2014). 4 N Bermeo, ‘On Democratic Backsliding’ (2016) 27 Journal of Democracy 5. Undesired, but not uncommon. Consider the 2014 case of Thailand, the 2019 case of Bolivia (both mentioned in the Introduction) and the 2020 Mali’s military coup (E Nagourney, ‘Mali Military Coup: Why

130  Subverting the Rule of Law demonstrate, the case of Brazil presents a different model, in which pressures or breaches on the guardrails of democracy coincide with blatant violations of constitutional and legal norms by political elites and illegal groups that support political power, like the milícias. Whereas chapters three and four were dedicated to the role of the judicial branch in destabilising the Brazilian constitutional system, this chapter examines how the military and milícias subvert or violate the rule of law. An additional factor has inverted the way politics have been practiced in Brazil under the 1988 Constitution. One should not be naïve enough to presuppose that no crimes have been committed by those seeking political power in Brazil since 1988. On the contrary, mass scandals have shaken the political scene. They influenced the setting aside of traditional political parties, such as the Worker’s Party, the PSDB (Partido da Social Democracia Brasileira, the Brazilian Social Democracy Party) or the MDB (Movimento Democrático Brasileiro, the Brazilian Democratic Movement).5 Those political scandals were also overexposed by media outlets that had, as privileged informants, both judges and prosecutors involved with Operation Car Wash. The result was a general discourse of a fight against corruption being led by suspicious and opportunistic politicians. It is against this background that one must situate the victory of an openly authoritarian option, President Jair Bolsonaro. This chapter aims to show how his win was not only due to the influence of social media in present-day elections, but the anti-Worker’s Party discourse and the idea of ‘cleaning the house’ of corruption. His victory also depended on the cooperation of other traditional political actors that do not (or should not) present themselves as such. The objective is to show how they were able to seize the organs of political power and further contribute to the perils Brazilian 1988 constitutionalism is now facing. The general hypothesis is that, with different degrees of cooperation, the tribunals (as seen in chapters three and four), the military and the milícias have created opportunities for constitutional erosion. That does not mean that one should view judicial and military actors as monolithic unities: organisational features must be considered. The judiciary was lengthily debated in previous chapters. Military members in Brazil are organised by members of the armed forces (the army, navy and air force) who should predominantly deal with the defence of the Brazilian territory. The public

the World Is Watching’, NY Times, 19 August 2020, www.nytimes.com/2020/08/19/world/africa/ Whats-happening-Mali-coup.html). Whereas slow constitutional erosion is more common, one must recognise that its normalisation sets the stage for even ‘accepting’ that old-fashioned coups can take place, especially in fragile democracies. The One Earth Future organisation offers a ‘coupcast’ (oefresearch.org/activities/coup-cast) and showed that, although the risk of attempts and effective coups have severely declined in the past two decades, there are important occasions to be remembered (see C Besaw et al, ‘Annual Risk of Coup Report’, oefresearch.org/sites/default/files/ documents/publications/Risk_of_Coup_Report_2019.pdf). 5 P Anderson, Brazil Apart: 1964–2019 (London and New York, Verso, 2019) 329.

Subverting the Rule of Law  131 security forces involve military and civil police: civilian federal police; civilian road transport and railroad police; civilian police within each state; military police and firefighters in each state; and civilian penitentiary police at federal and state level. The 1964–1985 dictatorship brought together members of the armed forces and the public security forces, the latter comprising military officers or civilian agents. Nowadays, the impact of old doctrines opposing a capitalist and a socialist world inside the armed forces (especially the army) can be seen across the other forces and even within civil society. A recent poll assessed the participation of 879 policemen (military and civilian state or federal agents) in social media. Most were low-ranking military state police officers. At least 41 per cent of them interact with web pages and support groups for Bolsonaro – some less radical, some more radical.6 The poll demonstrates a core shared political ethos that is likely to determine their behaviour. It is not the case that military officers played only a detrimental role in relation to 1988 constitutionalism. There are plenty of examples of individual or collective actions undertaken by those institutions that sought to uphold the main objectives of the 1988 Constitution. Although members of the armed forces still refuse broader mechanisms of accountability, a few defections from Bolsonaro’s Government show that not every officer agrees with his attacks on the 1988 constitutionalism. General Santos Cruz, although a defender of the role of the armed forces during the dictatorship of 1964–1985, criticised the excessive politicisation of the armed forces by the Bolsonaro Government after being fired from Government Secretariat of the Presidency (Secretaria de Governo da Presidência).7 Despite a reluctance to step forward, some instances, such as this, show that there are officers who have the ability to start a debate on the role of the armed forces in Brazil. To show how the military and milícias have been contributing to the erosion of Brazilian constitutionalism, this chapter will consider in section I the political engagement of the military from a historical perspective, taking into account in particular the post-1988 situation. Section II will examine the inclusion of the military in Brazilian politics by President Temer as the background for the military’s clear return to politics. Section III reflects on the militarisation of public security policies. Section IV is dedicated to understanding the origins of the milícias, the political support they can provide and their links to the current administration. Finally, in conclusion, section V returns to tentative 6 I Mello, ‘Levantamento Aponta que 41% dos Praças da PM no País são Bolsonaristas’, UOL, 7 August 2020, noticias.uol.com.br/cotidiano/ultimas-noticias/2020/08/07/levantamento-apontaque-41-dos-pracas-da-pm-no-pais-sao-bolsonaristas.htm. See also Fórum Brasileiro de Segurança Pública, Política e Fé entre os Policiais Militares, Civis e Federais do Brasil, 2020, forumseguranca. org.br/publicacoes_posts/politica-e-fe-entre-os-policiais-militares-civis-e-federais-do-brasil. 7 F Marreiro, ‘Santos Cruz: “As Forças Armadas não caem em canto da sereia de WhatsApp”’, El País, 5 March 2020, brasil.elpais.com/brasil/2020-03-05/santos-cruz-as-forcas-armadas-nao-caemem-canto-da-sereia-de-whatsapp.html.

132  Subverting the Rule of Law connections between the tribunals (mostly as depicted in chapters three and four), the military and the milícias to understand how they are eroding Brazilian constitutionalism. I.  THE MILITARY IN BRAZILIAN POST-1988 DEMOCRACY

The military has a long history of participation in and interference with Brazilian politics. One of the main theories for this is that the formal elimination of a moderating power in the hands of the emperor, as regulated by the Brazilian 1824 Constitution, did not lead to its disappearance, as chapter six will explain. A military dictatorship of 21 years (1964–1985) made the presence of members of the armed forces in politics explicit, supported by some of the civil elites (middle class, companies, banks) and by a robust repressive apparatus, as depicted in chapter one. The 1988 Constitution, the cornerstone of the transition to democracy, made the participation of the military in politics a normative prohibition. Article 142 of the constitutional text puts civilian power above the armed forces, submitting them to the authority of the President of the Republic.8 Article 142(3) expressly forbids the military’s affiliation with any political party.9 The 1988 Constitution also provides restrictive conditions for a member of the military to be elected, demanding that he or she must not be in active service.10 The economic disasters, the continuous denouncing of human rights violations and the civil society mobilisations that prevailed during the end of the 1970s and the 1980s pushed the military back to the barracks. Nonetheless, it remained active, although it became less visible. It is possible to see the military acting in Brazilian politics even in the moment of the transition. When President-elect Tancredo Neves died before taking office, José Sarney (a former member of the political party that supported the dictatorship) received a phone call from General Leônidas Pires Gonçalves to inform him that he would be the president. Sarney was reluctant and General Gonçalves used to say that he was responsible for solving the matter.11 The National Truth 8 ‘Article 142. The armed forces, made up of the navy, army and air force, are permanent and regular national institutions, organised on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and intended to defend the nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order.’ 9 ‘Article  142. … §3°. Members of the armed forces are called the military, and the following provisions apply to them: … V. while in active service, military servicemen may not be affiliated with political parties; …’ 10 ‘Article 14. … § 8°. A member of the armed forces who can register to vote is eligible under the following conditions: I. if he has served for less than ten years, he shall be on leave from military activities; II. if he has served for more than ten years, he shall be discharged from military duties by his superiors and, if elected, shall be automatically retired upon taking office.’ 11 O Globo, ‘Morre Leônidas Pires Gonçalves, ministro do Exército no governo Sarney’, O Globo, 4 June 2015, oglobo.globo.com/brasil/morre-leonidas-pires-goncalves-ministro-do-exercito-nogoverno-sarney-16354584.

The Military in Brazilian Post-1988 Democracy  133 Commission, which investigated the crimes perpetrated during the dictatorship of 1964–1985, indicated General Gonçalves as a figure responsible for the systematic repression that led to gross violations of human rights. He was the Army Chief of Staff between 1974 and 1976, when the so-called Massacre da Lapa (Lapa Massacre) led to the killing of high-ranking officers of the thenclandestine Brazilian Communist Party.12 Even the old National Information Service (Serviço Nacional de Informações, SNI), one of the crucial arms of the repressive apparatus, would only be terminated in 1990, during President Fernando Collor’s term (1990–1992).13 The National Information Service had amassed voluminous records on private citizens that supposedly posed problems to the regime. During President Fernando Henrique Cardoso’s (FHC) administration (1995–2002), the military gained more institutional prominence. After presenting literature from the mid-1990s that suggested that the Brazilian transition was consolidated, Zaverucha tried to show how members of the armed forces engaged in politics.14 The military budget had increased between 1985 and 1995. Based on statistics about the money that went to the Ministry of Defence, created by FHC to enforce civilian command over the armed forces, one can see that it went from US $8.48 billion in 2005 to US $26.22 billion in 2018.15 During FHC’s term, the number of members of the armed forces increased by 13 per cent from the time of General João Figueiredo’s dictatorship. Administrative military reforms did not take place in FHC’s Government, whereas the civil service went through severe changes, without increasing salaries in most cases. In 2000, top-ranking officials in the military received an increase in their salaries that saw them earn 16 times more than soldiers. Behind the salary increase was a crisis between the president and the army commander, General Gleuber Vieira. He publicly criticised President Cardoso and negotiated the salary expansion to avoid a public demonstration that would gather 155 generals.16 An additional reason for the general’s insubordinate behaviour was the creation of the Ministry of Defence, a civilian institution that would control the army, the navy and the air force. The ministry was created by the Complementary Law 97 of 1999. It was always a cause of problems, and is perhaps the best example of how complicated civil–military affairs were in the Brazilian constitutional scheme. A few changes in the 1988 Constitution made by Constitutional Amendment 23 of 1999 helped create the juridical basis for the installation of the Ministry of Defence. The first minister dealt with permanent insubordination by the military, including a proposal of impeachment against FHC 12 Comissão Nacional da Verdade, Relatório Final (Brasília, Comissão Nacional da Verdade, 2014), 2.111. 13 See www.fgv.br/cpdoc/acervo/dicionarios/verbete-tematico/servico-nacional-de-informacao-sni. 14 J Zaverucha, ‘(Des)Controle civil sobre os militares no governo Fernando Henrique Cardoso’ (2003), Lusotopie 10, 399. 15 See www.defesa.gov.br/orcamento. Dollar rate of R $3,89. 16 Zaverucha, ‘(Des)Controle civil sobre os militares’ (2003) 406.

134  Subverting the Rule of Law by a  brigadier.17 The next minister confronted the already-mentioned salary dispute. Zaverucha argues that the creation of the Ministry of Defence was much more instrumental in pacifying the barracks than the idea of proper civilian control over the military.18 The commanders of the armed forces remained with trial prerogatives in the Federal Supreme Court and retained positions in the National Defence Council. In matters of public security, the problems intensified. Zaverucha remembers that scenes of gross violations of human rights committed by the Brazilian military state police were shown on TV. In response, President FHC created a working group to propose changes to the military structure.19 He justified these changes because the public security model was created before the 1988 Constitution. Several military bodies participated in the working group that would debate on the future of the police forces in Brazilian states, all of them militarised since the dictatorship. Beyond that, two of the essential federal public security bodies were commanded by the military under FHC. Few concrete results came from the working group’s activities. Even problems related to a broader concept of security pertained to military affairs. General Alberto Cardoso was a relevant figure in FHC’s Government and was responsible for the military affairs of the presidency. In 1999, the Institutional Security Cabinet (Gabinete de Segurança Institucional, GSI) was created in the place of the Cabinet for the Military Affairs of the Presidency. Under the Institutional Security Cabinet, the National Intelligence Agency (Agência Brasileira de Inteligência, ABIN) was commanded by the same General Alberto Cardoso. It is not hard to associate the National Intelligence Agency with its dictatorship’s predecessor, the National Information Service (SNI). Several competencies were absorbed by the National Security Cabinet and the National Intelligence Agency during the popular demonstrations against FHC in the 2000s, reproducing the same national security dictatorial logic to deal with the ‘internal enemy’. All of those cases indicate instances of the militarisation of society, by which military values start to dictate the logic of different systems, such as politics, public security or even car traffic. Back in 2003, Zaverucha noted that, even though the Brazilian military can accept a certain level of subordination, this can only happen if their interests are not affected.20 Leftist governments did not stand a better chance. Under Lula, a diplomat was nominated to the Ministry of Defence (2003–2004), opposing the regular competition between the armed forces and the Ministry of Foreign Affairs in Brazil. He confronted the army commander, demanding more efforts to find the disappeared victims of the Araguaia guerrilla war.21 In response to the publication of new photos showing the corpse of Vladimir Herzog, the journalist killed 17 S Abranches, ‘A Crise Militar do Governo Dilma’, Sul 21, 6 March 2012, www.sul21.com.br/ opiniaopublica/2012/03/a-crise-militar-do-governo-dilma. 18 Zaverucha (n 14) 406. 19 ibid, 409. 20 ibid, 416. 21 See ch 1.

Soldiers Returning to Politics  135 by the dictatorship,22 the army published a note justifying the illegal methods used during that time. The Minister of Defence resigned, declaring his surprise that the army’s notice used terms such as ‘subversive movement’ and ‘international communist movement’.23 Other ministers were unremarkable in their time at the Ministry of Defence. Nelson Jobim, the former Federal Supreme Court justice mentioned in chapter one, lasted longer, remaining throughout Dilma Rousseff’s term – he left her government after publicly declaring that he voted for Rousseff’s opponent in the 2010 presidential bid. Under Dilma’s presidency, Celso Amorim (2011–2015), also a former diplomat, had to deal with the greatest challenge of all: allowing for the processing of a truth commission, the so-called National Truth Commission. At the ceremony that inaugurated the National Truth Commission, the commanders of the armed forces remained in silence and did not applaud the initiative. Even with a reserve military manifesto critical of the president and some of her ministers circulating with 150 signatures, Minister of Defence Celso Amorim did not take steps to punish the acts of insubordination. When the National Truth Commission provoked the armed forces to obtain from them a public recognition of the crimes perpetrated inside military facilities, the answer was that they had no way to deny or confirm the violations, since more than 19,000 documents had been legally destroyed.24 The National Truth Commission found, in its final report, that 377 public agents from different echelons were involved in committing gross violations of human rights. As a result, the Amnesty Law of 1979 could no longer be an obstacle to the investigation, persecution and trial of such violations. The first recommendation of the Commission was that the armed forces should publicly recognise their institutional liability. The second was that the Amnesty Law could no longer impede accountability.25 Several years later nothing had changed, except for the federal public prosecutors engaging in around 40 criminal lawsuits, with few successes (see chapter one).26 II.  SOLDIERS RETURNING TO POLITICS

The militarisation of politics, in the sense proposed by Zaverucha, became the hallmark of President Michel Temer’s Government.27 Temer was the vicepresident in Dilma Rousseff’s administration but ostensibly cooperated in the 22 Vladimir Herzog’s case is also debate in ch 1. 23 Abranches, ‘A Crise Militar’ (2012). 24 See M Torelly, ‘Assessing a Late Truth Commission: Challenges and Achievements of the Brazilian National Truth Commission’ (2018) 12 International Journal of Transitional Justice 194. 25 Comissão Nacional da Verdade, Relatório Final (Brasília, Comissão Nacional da Verdade, 2014) 2.336–2.338. 26 For a database of these criminal lawsuits, see cjt.ufmg.br. 27 Zaverucha (n 14) 399. See E Meyer, ‘The Militarization of Politics in Brazil Under the Temer Government’ in J Bermúdez and L Vargas (eds), Experiences on Justice, Truth, and Memory: When Facing Crimes Committed by the State (México, CMDPH, 2020) 57–74.

136  Subverting the Rule of Law impeachment process. Temer’s administration was also marked by his massive unpopularity – that could be one of the reasons he was so close to the military. Once he took office, he recreated the Institutional Security Cabinet (Gabinete de Segurança Institucional) that had been terminated by Rousseff. To command the cabinet, he appointed General Sérgio Etchegoyen, one of the few active members of the military who made public his displeasure with the National Truth Commission’s final report. The biggest problem for him was that the Commission nominated his uncle, Ciro Etchegoyen, as one of the military members responsible for gross violations of human rights.28 Sérgio Etchegoyen was not alone in his cooperation with Temer’s civilian Government. Temer also nominated military members for other high-ranking positions, such as the National Public Security Secretariat, the presidency of the National Indigenous Foundation (Fundação Nacional do Índio, FUNAI) and the Civil Office of the Cabinet of the President of the Republic.29 Notable political speeches were also made by members of the armed forces under Temer’s presidency. General Hamilton Mourão, who would become vice-president from 2019 onwards, was the one who most often violated the norms of military conduct. The Disciplinary Regulations of the Army, in their Attachment I(56)–(59), prohibit active members of the military from engaging in public political demonstrations.30 As an active member of the military himself, he publicly defended ‘military interference’ for isolating political representatives accused of corruption. However, he was not seen to be punished by his superior commanders, like the army commander, General Villas-Bôas, or the civilian minister of defence, Raul Jungmann. Mourão insisted on his political speeches, announcing that the 2018 elections would count on military candidates and praising Brilhante Ustra, sentenced as civilly liable for torture by the Brazilian tribunals. Friction between the military and the other branches gained another dimension when General Villas-Bôas threatened the Federal Supreme Court via Twitter at the time of the of Lula’s writ of habeas corpus trial, as mentioned in chapter four.31

28 Comissão Nacional da Verdade, ‘Relatório Final’ (Brasília, Comissão Nacional da Verdade, 2014) 2.336–2.337. It is noticeable that his grandfather, Alcides Gonçalves, became the chief of police under the Vargas dictatorship (1937–1945), and that his father, Leo Etchegoyen, was a supporter of the dictatorship of 1964–1985. 29 R Valente, ‘Temer dá a militares controle sobre áreas sensíveis do governo’, Folha de S Paulo, 5 March 2018, www1.folha.uol.com.br/poder/2018/03/temer-da-a-militares-controle-sobre-areassensiveis-do-governo.shtml. 30 See www.planalto.gov.br/ccivil_03/decreto/2002/d4346.htm. 31 Almost incredible was Bolsonaro’s declaration in a public ceremony where Villas-Bôas transferred his office to his successor. Beyond saying that Villas-Bôas was responsible for Bolsonaro reaching the presidency, the now president also declared: ‘General Villas-Bôas, what we said to each other will die with us’ (‘General Villas-Bôas, o que já conversamos morrerá entre nós’). See E Bresciani ‘“O senhor é um dos responsáveis por eu estar aqui”, diz Bolsonaro a comandante do Exército’, O Globo, 2 January 2019, oglobo.globo.com/brasil/o-senhor-um-dos-responsaveis-por-eu-estar-aquidiz-bolsonaro-comandante-do-exercito-23341238.

Soldiers Returning to Politics  137 In the field of military jurisdiction, Temer’s administration also made a change that would benefit the military. The Statute Law 13.491, published in October 2017, modified the dictatorship’s Military Criminal Code. It allowed the trial by military tribunals of crimes committed by the military in situations or operations promoted by the president or Ministry of Defence, crimes linked to military nature activities and crimes perpetrated during peacekeeping operations or operations aimed at guaranteeing law and order (the so-called operations of Garantia da Lei e da Ordem, GLO). This expansion of military jurisdiction was direct linked to the broader activities of public security in military hands.32 In Temer’s administration, federal troops were allowed to act in public security matters in the state of Rio de Janeiro from July 2017 until December 2018. Another field in which the military developed considerable political activity deals with the constitutional design of Brazilian federalism. Such a system, in extraordinary situations outlined in the 1988 Constitution, entails the possibility of what is called ‘federal interference’: a process by which the state’s autonomy is partially suspended and federal authorities take charge of state powers, all in the name of the preservation of the federation as a whole. Temer thought this was a case of Rio de Janeiro state’s public security: he used Decree 9.288 to establish a federal interference from March to December 2018, nominating General Walter Braga to lead the operation.33 Measures such as ‘collective warrants’, which involved searching streets and houses in the same neighbourhood, were to be used. The army’s commander, General Villas-Bôas, publicly declared that the military should guarantee that no truth commission should be created in the future to oversee federal interference.34 Other members of the army even suggested the creation of areas where soldiers were free from any criminal liability. The limited effects of the federal interference in the State of Rio de Janeiro public security matters have been shadowed by an investigation of the Federal Audits Tribunal that focused on goal deviation in applying public funds. The poor conditions of security installations at the end of the federal interference was in contrast with the acquisition of an aircraft controlled by satellite, the modernisation of hardware already owned by the army and even the purchase of shrimp, cod and Dutch pie for the military. More than 80 per cent of public

32 For a discussion on the illegitimacy of such a modification, see U Reis, Justiça Militar e Direitos Humanos no Brasil: uma análise da competência para o julgamento de crimes cometidos por militares contra civis a partir dos parâmetros constitucionais e internacionais, PhD thesis (Fortaleza, Programa de Pós-Graduação em Direito da UFC, 2019). 33 Walter Braga became Bolsonaro’s Chief of Staff Minister (Ministro da Casa Civil) of the Presidency of the Republic. 34 C Lôbo, ‘“Militares precisam ter garantia para agir sem o risco de surgir uma nova Comissão da Verdade’, diz comandante do Exército”, diz comandante do Exército”, G1 – Blog da Cristiana Lôbo, 19 February 2018, g1.globo.com/politica/blog/cristiana-lobo/post/general-vilas-boas-militaresprecisam-ter-garantia-para-agir-sem-o-risco-de-surgir-uma-nova-comissao-da-verdade.ghtml.

138  Subverting the Rule of Law spending, around US $16.5 million,35 was in contravention of the objectives of budget.36 Finally, President Temer chose a general for the head of the Ministry of Defence, exposing the tensions in civil–military relationships that had been manifest since the start of FHC’s Government. In other words, the whole idea that a civilian authority between the president and the commanders of the armed forces could control the political backbone of the military was simply disregarded by Temer. Of course, the move was copied by President Bolsonaro. Temer’s administration set the stage for a year of elections in which political polarisation allowed for the popularity of far-right proposals. The military, which used to defend 1960s-era conceptions of right and left politics, amid the exploring of disinformation via social media, became the most suitable candidates. Those people outside of the economic elite, like retail store owners and members of the agricultural industry, as well as conservatives such as the Evangelicals, started to support the candidacy of Jair Bolsonaro. Bolsonaro was presented as an outsider, despite having around 30 years of legislative experience and having introduced almost no bills. He was best known as having once been a captain in the military. Seventy-two military were elected in 2018, among them members of the armed forces, former military members, military police officers (from the diverse Brazilian states) and military firemen. Eduardo Bolsonaro, Jair’s son, was the legislature representative who received the widest margin of votes in the whole country. Flávio Bolsonaro, also a son of Jair, was elected senator for the State of Rio de Janeiro. Thirty-nine members of Jair Bolsonaro’s political party in the presidential campaign, PSL (Partido Social Liberal, the Social Liberal Party), won at the polls. A State of São Paulo military police corporal who was filmed shooting and killing a thief was elected federal representative, with 264,013 votes.37 As soon as President Jair Bolsonaro took office, he filled his cabinet with diverse members of the military. One must not forget that the vice-president was General Hamilton Mourão.38 General Santos Cruz was nominated as the secretary of government. The National Security Cabinet would be the responsibility of General Augusto Heleno, one of the main actors in Bolsonaro’s victory. Another general would occupy the presidential office’s General Secretariat. A former member of the army became the head of the General Controllership 35 At a dollar rate of R $5,64. 36 M Salomon, ‘Os Desvios da Intevenção Militar’, Piauí, 28 September 2020, piaui.folha.uol.com. br/os-desvios-da-intervencao-militar. 37 UOL, ‘Na Esteira de Bolsonaro, 72 militares São Eleitos para Cargos Legislativos’, UOL Eleições 2018, 8 October 2018, noticias.uol.com.br/politica/eleicoes/2018/noticias/2018/10/08/militareseleitos-2018-camara-senado-assembleia-legislativa.htm?cmpid=copiaecola. 38 Mourão is known for his public pronouncements, a routine deepened after 2019. In several cases, he positioned himself against to Bolsonaro. Mourão defended abortion as a women’s right, for instance, and sided with Jean Willys (at least in public), an exiled former representative enemy of Bolsonaro.

Militarised Public Security  139 of the Union. President Bolsonaro nominated generals as Ministers of Defence. Under the command of then-Minister of Justice Sérgio Moro, two generals headed the Public Security National Secretariat. The minister of infrastructure also had a military education. An admiral commanded the Ministry of Mines and Energy. In August 2020, a Federal Audits Tribunal report found that 6,157 members of the armed forces held positions in Bolsonaro’s Government.39 The move indicates an attempt to capture the public service, and mainly high-ranking positions, with military with close ideological ties to the Bolsonaro Government. Interestingly, the move had clientelist features close to what comparative populist and authoritarian politicians had been practising. As in the case of Poland, where laws were adopted to vacate 11,000 positions and nominate PiS (Prawo i Sprawiedliwość, the Law and Justice Party) sympathisers, the very critics of clientelist politics in Brazil became their most enthusiastic practitioners.40 And they are not far from the judicial branch. Chief Justice Dias Toffoli (2018–2019) had as an aide Fernando Azevedo e Silva, who would become Bolsonaro’s Minister of Defence, an office that should be in the hands of a civilian. Even in the Superior Court of Justice, military were employed as aides. Justice Dias Toffoli declared that, in his relationship with Bolsonaro, he had never seen any attack on democracy, a statement contrary to all actions against the Federal Supreme Court President Bolsonaro participated in 2020. In Toffoli’s last day as Chief Justice of the Federal Supreme Court, President Bolsonaro unexpectedly participated in the ceremony and declared that he was grateful for the individual rulings his government demanded, as well as for the solutions the justice presented to him even before any of his aides provoked the court.41 III.  MILITARISED PUBLIC SECURITY

Public security policies have followed the path set by FHC’s Government, deepening the militarisation of public security initiated during the dictatorship. Former Minister of Justice Sérgio Moro proposed a criminal package bill that fostered repressive measures and could enhance police violence. The proposal would authorise judges to set aside the criminal liability of police officers who

39 O Stuenkel, ‘The Backlash Against Brazil’s Politicized Military’, Americas Quarterly, 24 August 2020, www.americasquarterly.org/article/the-backlash-against-brazils-politicized-military. 40 ‘This is perhaps the most thorough, and at the same time least publicly and internationally visible, aspect of state capture by PiS: the policy of spoils and patronage that far exceeded any of the clientelistic practices of the sixteen former governments in post-communist Poland’ (W Sadurski, Poland’s Constitutional Breakdown (Oxford, Oxford University Press, 2019) 138. 41 F Amorim, ‘Bolsonaro aparece de surpresa em sessão de despedida de Toffoli no STF’, UOL, 9 September 2020, noticias.uol.com.br/politica/ultimas-noticias/2020/09/09/bolsonaro-aparece-desurpresa-em-sessao-do-stf-para-se-despedir-de-toffoli.htm.

140  Subverting the Rule of Law acted out of fear, surprise or violent emotion. The military continued to operate in Rio de Janeiro’s streets with shocking acts of violence, combined with multiple fatalities. The military killed a musician by shooting him 80 times.42 A massacre in a shanty town carried out by elite military police officers led to several deaths and included torture and evisceration.43 The State of Rio de Janeiro suspended Governor Wilson Witzel (2019–2020), a former federal judge, publicly declared in his electoral campaign that snipers would be allowed to kill suspects.44 Cases have repeatedly been reported without official government recognition.45 The militarisation of police forces in Brazil dates back to the 1960s. Koonings has shown that the impact of the national security doctrine reached public security measures, allowing for the translation of a struggle against an external enemy into a fight against internal enemies that threatened the moral unity of the nation.46 Contrary to the federal autonomy protected by the 1946 Constitution, the military that seized power in 1964 only authorised state governors to take office in 1965 after accepting the regime’s nominations for the respective regional public security offices. Guerra showed that, in Brazil’s biggest state, São Paulo, the 1960s saw the gradual incorporation of a civilian body into a military one.47 Even in the transition, almost no change was made. Consider, for instance, that a dictator’s decree is still the national disciplinary regulation for military police and fire brigades across the country.48 Force, not state control, has been the main factor in public security policies. In this case, one cannot avoid referring to Albertus and Menaldo and their concern about the relationship between the state’s coercive apparatus strength and the stability of autocracies that use repression as a proxy.49 The authors take the military’s size as a measure of its coercive capacity and, therefore, of its ability to limit the democratic transition. Military and police power can be 42 Folha de S Paulo, ‘Soldiers Fire More than 80 Shots into Car Carrying Family in Rio’, Folha de S  Paulo, 9 April 2019, www1.folha.uol.com.br/internacional/en/brazil/2019/04/soldiers-fire-morethan-80-shots-into-car-carrying-family-in-rio.shtml. 43 C Briso, ‘Brutalidade Que Os Laudos Não Contam’, Piauí, 15 March 2019, piaui.folha.uol.com. br/brutalidade-que-os-laudos-nao-contam/. 44 The governor was suspended from office by a Superior Court of Justice individual judge stay lately confirmed by the full bench; see ch 4. 45 P Cappelli and T Prado, ‘“Snipers Já Estão Sendo Utilizados, Só Não Há Divulgação”, diz Witzel sobre ação da polícia’, O Globo, 31 March 2019, oglobo.globo.com/rio/snipers-ja-estao-sendo-utilizadosso-nao-ha-divulgacao-diz-witzel-sobre-acao-da-policia-23563496. 46 K Koonings, ‘Political Orientations and Factionalism in the Brazilian Armed Forces, 1964–85’ in P Silva (ed) The Soldier and the State in South America (Hampshire and New York, Palgrave Macmillan, 2001), 131; C Ribeiro, R Dias and S Carvalho, ‘Discursos e Práticas na Construção de Uma Política de Segurança: O Caso do Governo Sérgio Cabral Filho’ in Justiça Global Brasil (ed), Segurança, Tráfico e Milícias no Rio de Janeiro (Rio de Janeiro, Fundação Heinrich Böll, 2008) 13. 47 M Guerra, Polícia e Ditadura: A Arquitetura Institucional Da Segurança Pública de 1964 a 1988 (Brasília, Ministério da Justiça e Cidadania, 2016) 38. 48 Decree 88.777 of 1983, www.planalto.gov.br/ccivil_03/decreto/D88777.htm. 49 M Albertus and V Menaldo, Authoritarianism and the Elite Origins of Democracy (Cambridge, Cambridge University Press, 2018) 152.

Supporting Elections via Milícias  141 used as ways to intimidate and coerce political opponents. At the same time, an authoritarian leader can increase the military’s organisational efficiency to use it against political opponents and prevent insubordination. Watching President Bolsonaro’s initial movements, one can observe that attributing different and several offices to the military can help undermine their political capacity to become a problem to the elected president. One of the main arguments to empower the size of the armed forces’ bureaucracy, for their benefit, is security. However, ‘As Alfred Stepan notes in the Brazilian case, military troops were dispersed throughout the country strategically to prevent citizen unrest’.50 Increased coercive apparatuses under autocracies are both a problem for democratisation and raising the level of democracy. It is not by chance that two former judges (Sérgio Moro and Wilson Witzel) held similar views on authoritarian public security measures. It is not also a coincidence that they see the military authorities as capable of restoring law and order. Several military and judges share, in Brazil, the sense of integrating elites that not only can but should drive politics, even if at the cost of the rule of law enshrined by the 1988 Constitution. This is a a risk, as Bolsonaro’s political failures may taint the public image of the armed forces. However, military members are not the only components of the forces that led to President Bolsonaro’s election and now sustain his government. IV.  SUPPORTING ELECTIONS VIA MILÍCIAS

Another consideration is whether there are any other forces that can repress political opponents beyond those institutionally linked to the state. Suspects in the murder of Marielle Franco – a former representative in the Rio de Janeiro City Council, who was shot dead in 2018 – were arrested in 2019. The two defendants used to be part of Rio de Janeiro’s military police and were connected to milícias, such as the Escritório do Crime (Office of Crime). At the time of this writing, the identity of the instigator in the case remains unknown. One must bear in mind that the suspended Rio de Janeiro State Governor Wilson Witzel was present in a protest during the 2018 electoral campaign at which far-right candidates broke a plaque dedicated to Marielle Franco. A judge from the State of Rio de Janeiro Tribunal of Justice used social media to falsely link Marielle to organised crime.51 Marielle Franco was the aide of Rio de Janeiro state’s 50 ibid, 154. Stepan is an important author to understand the role of military in Brazilian politics, as ch 6 will show. 51 The judge became a defendant in a criminal lawsuit in the Superior Court of Justice, was held accountable to pay reparations for Marielle Franco’s family and faces an administrative procedure in the National Council of Justice (6 Minutos. ‘CNJ Abre Processo Contra Desembargadora que Atacou Marielle e Ofendeu Professora’, UOL, 6minutos.uol.com.br/agencia-estado/cnj-abreprocesso-contra-desembargadora-que-atacou-marielle-e-ofendeu-professora). None of the procedures, however, avoided the fact that she was included in a special body of the state court responsible for the trial of the most important lawsuits.

142  Subverting the Rule of Law Legislative Chamber representative Marcelo Freixo, who was responsible for leading a legislative investigation against the milícias.52 Such aggressions were commonplace during the 2018 elections and animated the far-right electors that voted for Bolsonaro.53 In retrospect, it is impossible to neglect the special warning presented during the elections that led to the approval of the Enabling Act by the Nazis. All the procedural accomplishments were accompanied with extreme violence against political opponents.54 This is one of the main dangers that has arisen as a result of milícias entering political power in Brazil. An adequate investigation into Marielle Franco’s murder is of vital importance to understand the links between the milícias, the state and the recent success of authoritarianism in Brazil. As Brazilian sociologist José Cláudio Souza Alves declared in a recent interview, considering that the milícias are already inside the state, the number of obstacles is vast.55 In his words, ‘The state becomes a screen between the legal and the illegal groups that operate inside it are the ones that profit the most’.56 As he also concludes, proposals like the one idealised by Minister of Justice Sérgio Moro only legitimise groups for committing extrajudicial killings. There is a real chance that the spread of illegality can reach the nucleus of the Brazilian constitutional system via elections. As this chapter will describe, the phenomenon has already begun. Back in the 1970s and 1980s, the rise of death squads led to an extraordinary number of killings in the State of Rio de Janeiro’s countryside, reaching 3,000 deaths each year by the end of the 1980s. The term milícias appeared in the 2000s: there is not a precise definition of this term, even among those who live under their control in Rio de Janeiro’s favelas. They were, in the past, also called polícia mineira or, simply, death squads. José Cláudio Souza Alves depicts the 52 A Abreu, ‘A Metástase: O Assassinato de Marielle Franco e o Avanço das Milícias no Rio’, Piauí, March 2019, piaui.folha.uol.com.br/materia/a-metastase. For the pioneer work of Federal Representative Marcelo Freixo in investigating Rio de Janeiro’s milícias, see the final report of the committee he presided over: Legislative Assembly of the State of Rio de Janeiro, Relatório Final da Comissão Parlamentar de Inquérito Destinada a Investigar a Ação de Milícias no Âmbito do Estado do Rio de Janeiro, 2008, uploads.strikinglycdn.com/files/fecb46ea-cc99-48f1-a562-81f70c762381/ Relatorio%20CPI%20das%20Milicias.pdf. 53 D Phillips, ‘“Flowering of hate”: bitter election brings wave of political violence to Brazil’, The Guardian, 12 October 2018, www.theguardian.com/world/2018/oct/11/brazil-election-violencebolsonaro-haddad. 54 M Mandel, ‘A Brief History of New Constitutionalism, or “How We Changed Everything So That Everything Would Remain the Same”’ (1998) 32 Israel Law Review 263. 55 ‘One can observe that more organization and unification in the intern level of the world of crime yields better engagement of the pact [involving criminals] with police groups. At that stage, it is inevitable the politicization, that is, the involvement of criminals, inside and outside the police, with political actors open to illegal agreements’ (L Soares, Desmilitarizar (São Paulo, Boitempo, 2019) 18). Translated from: ‘Observe-se que mais organização e unificação no plano interno ao mundo do crime gera melhor articulação do pacto com segmentos policiais. Nesse estágio, é inevitável a politização, quer dizer, o envolvimento de criminosos, dentro e fora da polícia, com atores políticos permeáveis a composições ilegais’. 56 J Oliveira, ‘A prisão dos supostos assassinos de Marielle é só um “cala a boca” para a sociedade’, El País, 15 March 2019, brasil.elpais.com/brasil/2019/03/12/politica/1552415616_204238.html.

Supporting Elections via Milícias  143 milícias as the power that developed from the old police apparatus that worked as a mediator for politicians and drug dealers, using extrajudicial killings to seize control of different neighbourhoods.57 That was the logic of defining the political economy of crime. From canvassers, they were promoted to political representatives. Inhabitants of those areas started to be obliged to pay for the personal security ‘offered’ by the milícias. Not only that, but they also paid for services and products like gas cylinders, illegal cable TV and transportation. In 2006, with the growing number of different milícias, media vehicles and the general population thought they could find a better way to get away from drug dealers’ practices. In December 2006, former Rio de Janeiro Mayor César Maia used the phrase ‘communitarian self-defence’ to refer to milícias groups. This was a logic of normalisation by which a whitewashed term was used to disguise the illegalities these groups committed and the tyranny they use to command the territories they dominate.58 Ignácio Cano defines the elements that must be present in order to label a group as a milícia:59 (a) an illegally armed group that controls territory and the population that inhabits it; (b) such control is carried out in a coercive way; (c) members of the group are motivated by personal profit; (d) there is a legitimisation discourse based on the protection of the inhabitants and the imposition of a type of order that provides some rights and excludes others, and, at the same time, that defines rules and stabilises the expectation of behaviours; (e) there is the active and known participation of state agents in the group. During the 2000s, when Governor Sérgio Cabral was the head of the State of Rio de Janeiro (2007–2014), unlawful and unconstitutional practices of the military police forces inherited from the dictatorship continued to take place – an approach to illegality comparable to milícias that cannot be neglected. In June 2007, a police ‘mega-operation’ led to the extrajudicial killings of several suspects. Cars were commandeered by police officers to take bodies to hospitals without any further resuscitation procedures. Fulfilling ‘resistance records’ (autos de resistência) became a practice by which the police faked the real numbers of homicides by transforming them into situations of supposed conflict that led to the death of the suspects.60 Prosecutors would systematically archive 57 J Alves, ‘Milícias: Mudando a Economia Política no Rio de Janeiro’ in Justiça Global Brasil, Segurança, Tráfico e Milícias (2008) 33. 58 B Manso, A República das Milícias: Dos Esquadrões da Morte à Era Bolsonaro (São Paulo, Todavia, 2020) 126. 59 I Cano, ‘Seis por Meia Dúzia? Um Estudo Exploratório do Fenômeno das Chamadas “Milícias” no Rio de Janeiro’ in Justiça Global Brasil (n 46) 59. 60 Beyond several other conventional and unconventional mechanisms in which Brazil was censored by the structure of impunity that military justice allowed, the Working Group on Universal

144  Subverting the Rule of Law investigations derived from such ‘resistance records’ that were created during the dictatorship. Although a joint resolution between civilian and federal police attempted to end this practice in 2018, they recorded 766 killings in that year, the highest figure since 2003. Alves sees a transformation of the national security ideology into an opposition between the state and organised crime that does not consider if the same state is involved in or promoting crimes.61 The complexity of violence is simplified in a binarity between good and bad.62 Such ideology was fundamental during the World Cup of 2014 and the Olympic Games of 2016, which counted on new anti-terrorism measures, clustered in the Brazilian Anti-Terrorism Act, Law 13.260 of 2016. In massive operations that involved the unlimited use of guns and in the blood trail left by the black people killed in this ‘war’, drug dealers were substituted in the territories by the milícias. However, the milícias’ practices did not exclude crimes: in a phone survey of 3,649 anonymous people, Cano found 1,549 accusations of extorsion, 507 allegations of homicide, 381  accusations of drug trafficking, 87 accusations of bribery and 31 ­accusations of car theft.63 The suspended State of Rio de Janeiro governor, Wilson Witzel, declared that the milícias are not the ‘main plague of the state’ even as the number of killings by police officers reached 305 in January and February 2019, the highest number in 16 years.64 One must also consider the ways in which milícias take charge of other aspects of state and private lives, occupying the area between legal and illegal activities. The result, in 2019, was that two buildings collapsed in the region of Muzema in Rio de Janeiro, killing 24 people. The milícias in the areas of Muzema and Rio das Pedras were supposedly commanded by former military police officer Adriano da Nóbrega, someone who was disappeared and who had also been investigated for Marielle Franco’s assassination. In a harshly criticised operation, police officers of the State of Bahia found Nóbrega

Periodical Review of the UN, in 2017, expressly recommended that the ‘resistance records’ practices be discarded. See UN (2017). General Assembly. Human Rights Council. A/HRC/WG.6/27/L.9. ‘Draft report of the Working Group on the Universal Periodic Review: Brazil’, acnudh.org/wp-content/ uploads/2017/05/A_HRC_WG.6_27_L.9_Brazil.pdf, 8, and Reis, Justiça Militar e Direitos Humanos no Brasil (2019) 109. Such practices were also condemned by the IACtHR in Favela Nova Brasília (Inter-American Court of Human Rights, Caso Favela Nova Brasília v. Brasil, judgment of 16 February 2017, www.corteidh.or.cr/docs/casos/articulos/seriec_333_por.pdf, 48). 61 Alves, ‘Milícias’ (2008) 35. 62 A discourse that is also commonalities with the Schmittean friend-and-foe opposition that is so important to the kind of illiberalism Bolsonaro represents. See generally P Blokker, ‘Populist Constitutionalism’ in C de la Torre ed., Routledge Handbook of Global Constitutionalism (London, Routledge, 2018) 118. 63 Cano, ‘Seis por Meia Dúzia?’ (2008) 56. 64 Folha de S Paulo, ‘“Milícia Não é a Principal Chaga do Estado”, diz Witzel’, Folha de S Paulo, 18 April 2019, www1.folha.uol.com.br/cotidiano/2019/04/milicia-nao-e-a-principal-chaga-doestado-diz-witzel.shtml.

Supporting Elections via Milícias  145 in a farm in February 2020. He was killed allegedly because he had opened fire against the policemen.65 Adriano da Nóbrega has been linked to Fabrício Queiroz, a former aid of Flávio Bolsonaro (Jair’s son, now a senator) and a former military police officer who was accused of using other aides’ salaries for illegal means. Representatives would nominate people inside their cabinets with the purpose of diverting their wages in favour of third-party beneficiaries. The practice became known as rachadinha.66 Adriano da Nóbrega’s mother and wife were also Flávio Bolsonaro’s aides when he was a representative in the State of Rio de Janeiro’s Legislative Chamber. Flávio Bolsonaro awarded him a medal in the state legislature and Jair Bolsonaro defended him in a speech in the Chamber of Deputies in 2005.67 Adriano da Nóbrega was one of the foremost leaders of the Office of Crime (Escritório do Crime) milícia. He has previously been arrested for a homicide that was treated as a case of the ‘resistance record’: the victim supposedly resisted the authority of the officers and they were ‘obliged’ to shoot,68 a very common police practice in Brazil. The political involvement of milícias is not restricted to personal or administrative affairs. Back in the 2000s, it was possible to identify the formation of a contingent of votes that could be captured in the future.69 By 2007, media vehicles already detected that candidates were receiving excessive numbers of votes in territories dominated by the milícias, indicating that they could define the political choices of their constituencies. In the Rio das Pedras community, Senator Flávio Bolsonaro received 8,729 votes, 17 per cent of the total number of votes he received in the Rio de Janeiro state. In 2014, a former federal representative and speaker in the Chamber of Deputies and one of the main actors in Dilma Rousseff’s impeachment, Eduardo Cunha (now in jail), was the best positioned candidate in the legislative elections (see chapters four and eight). An investigative report revealed that this area has been, since 2010, one of the most successful electoral arenas for the Brasão family, who have been scrutinised for creating obstacles to the criminal proceedings surrounding Marielle 65 D Phillips and S Cowie, ‘Hitman linked to Marielle Franco’s murder killed by police’, The Guardian, 9 February 2020, www.theguardian.com/world/2020/feb/09/hitman-with-links-to-marielle-francoskilled-by-police. 66 Jair Bolsonaro prompted a huge social media reaction when he threatened to beat a newspaper journalist who asked him why his wife, Michelle, received almost US $16,123 (at a dollar rate of R $5.52) in deposits made by Fabrício Queiroz between 2011 and 2017, according to investigations of the corruption scheme (T Phillips, ‘Bolsonaro tells journalist he would “like to smash your face in” over financial questions’, The Guardian, 24 August 2020, www.theguardian.com/world/2020/ aug/24/bolsonaro-tells-journalist-he-would-like-to-smash-their-face-in-over-corruption-claims). 67 I Nogueira, ‘Área de Desabamento na Zona Oeste do Rio é Dominada por Milícia de Amigo de Queiroz’, Folha de S Paulo, 12 April 2019, www1.folha.uol.com.br/cotidiano/2019/04/area-dedesabamento-na-zona-oeste-do-rio-e-dominada-por-milicia.shtml. 68 G Alessi, ‘O Elo Entre Flávio Bolsonaro e a Milícia Investigada pela Morte de Marielle’, El País, 22 January 2019, brasil.elpais.com/brasil/2019/01/22/politica/1548165508_401944.html. 69 Alves (n 57) 36.

146  Subverting the Rule of Law Franco’s murder.70 Adriano Nóbrega also was one of the prominent leaders in Rio das Pedras. In 2018, Rio das Pedras had 35,006 registered electors. In 300  areas dominated by the milícias in Rio de Janeiro people are coerced to vote for their candidates. There is a considerable concentration of votes in those places, reaching 75 per cent for a single candidate in the proportional system for legislative representation, according to an investigation of a select committee of the Legislative Chamber of the State of Rio de Janeiro. Hidalgo and Lessing point out the problem of states that do not adequately protect their voters from violent coercion.71 Brazil faces a more advanced problem, since the supposed protectors are vicariously affected by milícias: in several cases, they took the state positions. The chance for them to have arms inside the state are higher. In cases of widespread corruption, milícias will not only be tolerated but even become partners in establishing votes that do not arise from uncoerced decisions by the electorate. It is also an advantage for milícias to rely on relative legitimacy. This can increase the opportunities for them to operate in state weakness and, subsequently, make their survival plausible. Dominating territories allows paramilitaries to be elected and further limit the state capacity to control them. According to Hidalgo and Lessing, the territorial expansion of the milícias helps them have positive effects on elections and safeguards them from state control.72 The authors were able to produce evidence showing that legislators elected by milícias were able to weaken the state’s capacity to repress them. They could also halt investigations that would lead to their prosecution and seize informal powers, such as the ability to indicate commanders of military police forces in areas dominated by the milícias. Bills were introduced in the Rio de Janeiro state assembly to extend legal protections for ‘community police’. A confidential Rio de Janeiro State Security Secretariat report would also show that milícias were able to sell votes and campaigning rights in areas under their control. As of 2020, on the brink of local elections, a study showed that milícias controlled 25.5 per cent of Rio de Janeiro’s neighbourhoods. The area is equal to 57.5 per cent of the city’s entire territory.73 The pattern followed by Rio de Janeiro’s milícias was replicated in other Brazilian states. Following Jair Bolsonaro’s intolerant discourse against rural workers of social organisations, such as the Landless Movement (Movimento dos Trabalhadores Sem Terra, MST), in the state of Minas Gerais, an organisation called Security in the Field (Segurança no Campo) was established. 70 A Belisário, ‘Como Vota Rio das Pedras, Reduto da Mais Antiga Milícia Carioca’, APública, 25 February 2019, apublica.org/2019/02/como-vota-rio-das-pedras-reduto-da-mais-antiga-miliciacarioca. 71 D Hidalgo and B Lessing, ‘Endogenous State Weakness in Violent Democracies: Paramilitaries at the Polls’ (2015), pdfs.semanticscholar.org/f261/3b0459c1a514728e6ae7ffd924d30b613c41.pdf, 1. 72 ibid, 28. 73 GENI/UFF et al, ‘Apresentação ao Mapa dos Grupos Armados do Rio de Janeiro’, atualprodutora. com/wp-content/uploads/2020/10/apresentacao-16.10.2020.pdf.

Supporting Elections via Milícias  147 The  group involved 300 farmers and counted on engaging in dialogue with the State of Minas Gerais’s public security secretary, a retired general. They used firearms and even prevented the occupation of an unproductive area by the Landless Movement in 2018.74 Participants of the social movement accused Security in the Field of acting as a rural milícia. Reports show that milícias were also working in diverse states, such as the Rio Grande do Sul, Pará, Mato Grosso do Sul and others.75 In 2020 President Bolsonaro made real attempts or even self-coups against Brazilian constitutional democracy.76 He participated in actions against the National Congress and the Federal Supreme Court.77 The president reacted to a non-effective seizure of his cell phone, threatening to send troops to surround the apex court78 and declared that more weapons in the country would help those who support his reading of a supposedly constitutional military interference. His son Eduardo stated that a rupture would happen, the only question was when.79 President Jair Bolsonaro, however, retreated on his institutional attacks when the former family aide, Fabrício Queiroz, was arrested in a country house that was owned by a Bolsonaro family attorney.80 President Bolsonaro experienced an exceptional political silence and an approach to centrist political parties in the aged fashion of coalition presidentialism. When Queiroz was released by the Chief Justice of the Superior Court of Justice, a sympathiser of President Bolsonaro and a ‘candidate’ for the Federal Supreme Court, Jair Bolsonaro returned with his familiar attacks on media outlets. The political engagement of the milícias, along with their links to federal representatives and even the presidency, shows the perils of a general acceptance of illegal and unconstitutional participation in politics. Deep connections are still to be investigated. However, this scenario indicates broader violations to constitutionalism and the rule of law in Brazil. Consider, for example, the usage of the term milícia digital to describe an organisation named the Bureau of Hate

74 D Camargos, ‘Tiros, Processos e Ocupações’, UOL, 22 May 2020, noticias.uol.com.br/reportagensespeciais/conflito-por-terra-revela-acao-de-grupos-armados-e-expoe-vacuo-na-politica-agraria. 75 R Bertolotto, ‘Milícias S.A.’, TAB, tab.uol.com.br/edicao/milicias/#page13. 76 C Barros, ‘Já Houve Golpe?’, Folha de S Paulo, 14 June 2020, www1.folha.uol.com.br/colunas/ celso-rocha-de-barros/2020/06/ja-houve-golpe.shtml. 77 U Marcelino and G Slattery, ‘Brazil’s Bolsonaro headlines anti-democratic rally amid alarm over handling of coronavirus’, Reuters, 3 May 2020, www.reuters.com/article/us-healthcoronavirus-bolsonaro/brazils-bolsonaro-headlines-anti-democratic-rally-amid-alarm-over-handling-of-virusidUSKBN22F0TQ. 78 M Gugliano, ‘The day Bolsonaro decided to send troops to the Supreme Court’, Brasil Wire, www.brasilwire.com/troops-supreme-court-bolsonaro/. 79 T Amparo, ‘Bolsonaro nos quer armados, e mortos’, Folha de S Paulo, 7 June 2020, www1.folha.uol. com.br/colunas/thiago-amparo/2020/06/bolsonaro-nos-quer-armados-e-mortos.shtml; M  Falcão and F Vivas, ‘PGR abre apuração preliminar por fala de Eduardo Bolsonaro sobre “momento de ruptura”’, G1, 1 July 2020, g1.globo.com/politica/noticia/2020/07/01/pgr-abre-apuracao-preliminarpor-fala-de-eduardo-bolsonaro-sobre-momento-de-ruptura.ghtml. 80 BBC News, ‘Brazil corruption: Police arrest ex-aide to Jair Bolsonaro’s son Flávio’, BBC News, 18 June 2020, www.bbc.com/news/world-latin-america-53099553.

148  Subverting the Rule of Law (Gabinete do Ódio), which is close to the president and promoted online attacks against constitutional institutions and public figures. The attacks prompted an investigation by the Federal Supreme Court, involving the Federal Police (see chapter seven). Mobile phone records showed that a well-known blogger suggested to the president’s armed forces aide that military intervention should take place.81 These continuing illegalities show that tolerance for the flexibility of the rule of law can cost constitutional institutions dearly. V.  CONSTITUTIONAL EROSION OR BLATANT COUPS? A COMPARATIVE ASSESSMENT

Violence amid electoral processes is not exclusive to low-income countries. Supporters of Donald Trump in the United States, during his term and especially in 2020, threatened and even acted against the law to curb demonstrations of his political opponents.82 The increasing militarisation of even specialist fields of public policy is not exclusive to Brazil, a country that experienced the COVID-19 pandemic with a general commanding the Ministry of Health. In Hungary, the military was also used to guard hospitals and had access to companies to obtain data from employees without transparency in their manoeuvres.83 Tom Daly tries to give a glimpse of the world scenario of democratic decay, presupposing critical premises.84 First of all, important consolidated and fragile democracies have undergone pressing challenges.85 And the processes of undermining democracy are subtler. That is important for this chapter, as the military and tribunals have been slowly eroding democratic institutions to different degrees over the past 30 years. The milícias have presented a major challenge to the rule of law. Secondly, the features of democratic failure (such as harms to freedom of press) were accelerated in the past decade, superseding traditional imperfections of democracies. Finally, it is essential to take into account

81 F Macedo, ‘Mensagens de Allan dos Santos a Assessor de Bolsonaro Contradizem Depoimento do Blogueiro à PF’, O Estado de S Paulo, 19 September 2020, politica.estadao.com.br/blogs/ fausto-macedo/mensagens-de-allan-dos-santos-a-assessor-de-bolsonaro-contradizem-depoimentodo-blogueiro-a-pf. 82 J Swaine and J Adolphe, ‘Violence in the Name of Trump’, The Guardian, 28 August 2019, www.theguardian.com/us-news/ng-interactive/2019/aug/28/in-the-name-of-trump-supportersattacks-database; A Feinberg, ‘Trump supporters are already talking about what they might do if he doesn’t win – extremism experts are worried’, The Independent, 7 July 2020, www.independent. co.uk/voices/trump-lose-2020-election-supporters-maga-presidency-a9606081.html. 83 D Pozen and K Scheppele, ‘Executive Underreach in Pandemics, and Otherwise’ (2020) American Journal of Comparative Law (forthcoming) 9. 84 T Daly, ‘Democratic Decay: Conceptualising an Emerging Research Field’ (2019) 11 Hague Journal on the Rule of Law 12. 85 One must not forget Elkins’ remark that ascent to democracy is twice longer than descent from democracy towards authoritarianism (Z Elkins, ‘Is the Sky Falling? Constitutional Crises in Historical Perspective’ in M Graber, S Levinson and M Tushnet (eds), Constitutional Democracy in Crises? (Oxford, Oxford University Press, 2018) 58.

Constitutional Erosion or Blatant Coups? A Comparative Assessment  149 Diamond’s distinctions between species of failure: Brazil could be placed in the category of young democracies that have started to encounter problems of stability and democratic quality.86 Considering that democratic decay involves the incremental rotting of structures and the substance of liberal constitutional democracy, Brazil seems to have been undergoing this process for some time. The compromise of the structures involves, for instance, the media and NGOs. Just as Trump has done in the United States, President Bolsonaro is in a constant battle against the traditional media. He has also targeted NGOs and aims to oversee them. The norms of democratic governance have also been undermined: participatory councils that helped build public policies in different areas (health, education, public security and so on) have been shut down by the Government (see chapter two). Finally, one must take into account that ‘decay’ or ‘erosion’ refer to physical processes of degeneration and are broad metaphors for social, political and constitutional processes of change that are highly complex. In this sense, they follow different patterns, configurations of actors and historical and socio-economic contexts and drivers in other states.87 A vital diagnosis of the Brazilian situation comes from the article by Pech and Scheppele, in what they describe as a backsliding of the rule of law.88 The first element of this includes citizens losing faith in the political system: Brazilians have been complaining since corruption scandals increased in 2014, their complaints aided by excessive media coverage and constitutional hardball by the political opposition. Additionally, a recent poll from the Pew Research Center showed that 83 per cent of the population was dissatisfied with democracy.89 The second element in the backsliding of the rule of law is the votes for a candidate that represents a radical change. That was the pattern of Bolsonaro’s electoral presidential campaign. The third element consists of targeting the key institutions that could block autocracy: Eduardo, Jair Bolsonaro’s son and a representative in the Chamber of Deputies defended, in 2018, the belief that the Federal Supreme Court should be closed. The fourth element is the intimidation of civil society organisations, as has already been mentioned. The manipulation of the electorate is achieved through threats to the political opposition, and several academics and political representatives have recently started to leave Brazil. Finally, mutual comparative learning also takes place in Brazil: President Bolsonaro is a public admirer of Trump and Orbán, and has been influenced by Steve Bannon’s ideas. 86 L Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26 Journal of Democracy 141. 87 Daly, ‘Democratic Decay’ (2019) 12. 88 L Pech and K Scheppele, ‘Illiberalism within: rule of law backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 7. 89 A Castilho, C Huang and L Silver, ‘In Many Countries, Dissatisfaction With Democracy is Tied to Views About Economic Conditions, Personal Rights’ (2019) Fact Tank: News in the Numbers, www.pewresearch.org/fact-tank/2019/04/29/in-many-countries-dissatisfaction-with-democracy-istied-to-views-about-economic-conditions-personal-rights.

150  Subverting the Rule of Law Other categories could help understand the current authoritarian political scene and the degeneration of constitutional democracy in the world. As this book mentions in its introduction, Ginsburg and Huq circumvented the liberal democratic constitutional core. They claim that a basic structure of free and fair elections, liberal rights of free speech and association, and stability, predictability and publicity via the rule of law are vital to the health of constitutional order.90 In the case of Brazil, uninvestigated claims of the destructive influence of digital media on the elections, attacks on academic freedom and the use of snipers in helicopters to kill suspects show that the core of constitutional democracy has been violated.91 However, the concept of a constitution has deeper roots that can better help to identify what is at stake in a constitutional order. This book demonstrates that the Brazilian phenomena are more complex than the traditional toolkit of constitutional liberal democracies. Sujit Choudhry attempts to overcome the sharp distinction between the unwritten and written norms of a constitution in favour of the preservation of the core aims of constitutional democracy.92 In other words, the objective is to create the framework of pluralist political contestation to be preserved by the tribunals. Choudhry presents the case of Poland’s Constitutional Tribunal takeover by the PiS (the Law and Justice Party), in all its detail, supposed legitimacy, legal basis, pace, scope and substantive character. He shows how the incremental process of democratic deterioration of constitutional democracies can result in their destruction. For example, consider the impeachment process of Brazilian ex-President Dilma Rousseff. Controversial as it was, the rule of law that was needed to make it appear publicly justified was always proclaimed, despite being hollow on the nature of the impeachment offences. Blurring the lines between what is constitutional and what is unconstitutional allowed for the flexibility of the rule of law in Brazil. In the specific case focused on in this chapter, it has been observed that political actors and elites, like the military and milícias, represent variations of unconstitutionality that are framed in softer and more potent levels. All of them, in the end, violate and erode the 1988 constitutionalism.93 90 T Ginsburg and A Huq, How to Save a Constitutional Democracy (Chicago and London, The University of Chicago Press, 2018) 9. 91 On 5 May 2019, the suspended State of Rio de Janeiro’s Governor Wilson Witzel, tweeted a video in which he boarded a helicopter with military police officers that started shooting at a community in the city of Angra dos Reis (D Phillips, ‘Rio Governor Branded a Show-off After Tweeting Video During Police Operation’, The Guardian, 5 May 2019, www.theguardian.com/world/2019/may/05/ rio-governors-video-with-police-snipers-called-out-as-a-show-off). Witzel supported Jair Bolsonaro during his presidential campaign but broke with him when the press started to publicise an alleged testimony of Bolsonaro’s condo doorman that would have implicated the president in Marielle Franco’s assassination. Bolsonaro accused Witzel of leaking the testimony. The doorman would further back down. Witzel now faces accusations of corruption, was suspended from office by a judicial ruling and now is facing impeachment. 92 S Choudhry, ‘Will Democracy Die in Darkness? Calling Autocracy by Its Name’ in M Graber, S Levinson and M Tushnet (eds), Constitutional Democracy in Crisis? (2018) 572. 93 Choudhry (ibid, 578) makes a very disputable claim on the influence of interpretive concepts, in Dworkin’s formula, to allow for abuses by conservatives: ‘While the great American contribution

Fuelling Attacks on Constitutional Democracy  151 VI.  FUELLING ATTACKS ON CONSTITUTIONAL DEMOCRACY

As was mentioned above, in 2019, a criminal procedure was created inside the Federal Supreme Court by its Chief Justice, Dias Toffoli, to investigate fake news against the Court as well as public institutions and personalities. Although the digital attacks (supposedly carried out by digital milícias) deserve to be investigated, the Court would be prosecutor and judge at the same time.94 Such unconstitutional procedures can only encourage political actors in the executive branch to ignore the rule of law. Attaining political success through unconstitutional and illegal means is at the root of milícias’ political activity. President Jair Bolsonaro’s Government has enacted a policy of unrestricted access to guns during his term. Upon inauguration, he illegally changed the decree that regulated gun possession and pretended, throughout 2019, to open up access to guns and munitions using a confusing set of decrees. Hunters, for instance, had been allowed to possess up to 12 guns; this was now increased to 30. The maximum number of ammunitions an individual could possess at any one time was increased from 500 cartridges to 6,000.95 In 2021, a new pack of decrees increased access to guns.96 The milícias undoubtedly benefitted from this. Additionally, President Jair Bolsonaro’s popularity among military police in the states has prompted general unconstitutional and illegal strikes that suggest he would have high levels of support from armed actors in any kind of coup.97 This new scenario is directly linked to authoritarian backsliding. As Haggard and Kaufman have shown, retrogression to authoritarian rule is common among the progressions allowed by new democracies.98 They describe as ‘backsliding’ to constitutional thought is the anti-positivist idea that even the most basic, seemingly uncontroverted constitutional claims are interpretative, in Ronald Dworkin’s famous formulation, that noble idea has been taken up by conservatives and liberals alike to turn the legal system into a terrain of elemental, total ideological struggle where there are no longer few, if any, right or wrong answers at all’. Although such idea could have been captured and inverted (as any legal or political concept can), the capture is blatantly contrary to a general perspective on Dworkin’s thought: for someone who argued for a ‘one right answer’ thesis and the binary character of legal concepts, that misuse would be nothing more than a subversion. See R Dworkin, A Matter of Principle (Oxford, Oxford University Press, 1985). 94 A Boadle and R Britto, ‘Brazil Supreme Court Draws Fire For Silencing Critics’, Reuters, 16  April 2019, www.reuters.com/article/us-brazil-politics-court/brazil-supreme-court-draws-fire-forsilencing-critics-idUSKCN1RS29K. 95 A Stabile, ‘Acesso às armas foi ‘banalizado’, avalia especialista um ano após decreto que ampliou posse’, Ponte, 16 January 2020, ponte.org/acesso-as-armas-foi-banalizado-avalia-especialista-umano-apos-decreto-que-ampliou-posse; L Casado and E Lodoño, ‘Gun Ownership Soars in Brazil Under Bolsonaro’, NY Times, 31 March 2020, www.nytimes.com/2020/03/31/world/americas/gunsbrazil-bolsonaro.html. 96 See Decrees 10.628, 10.629 and 10.630 of 2021: www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/ decreto/D10628.htm; www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/decreto/D10629.htm; and, www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/decreto/D10630.htm. 97 The 1988 Constitution forbids the military from going on strike (Article 142, § 3º, number IV). See S Cowie, ‘Brazil sends armed forces to north-east to quell violence from police strike’, The Guardian, 21 February 2020, www.theguardian.com/world/2020/feb/21/brazil-police-strike-ceara-bolsonaro. 98 R Kaufman and S Haggard, Dictators and Democrats: Masses, Elites and Regime Change (New Jersey, Princeton University Press, 2016) 220.

152  Subverting the Rule of Law the retrogression to authoritarianism led by elected political figures. A critical distinction in their theory is that it is based on the reactions of the elite on one side (reversals that result from unsatisfied elites with redistributive programmes) and, on the other side, weak democracies (reversals linked to institutional and political frailties). At first glance, it appears that institutional weaknesses have contributed more to the present situation than elite reactions in Brazil. Haggard and Kaufman doubt that the military can be allied to economic elites in regression processes.99 Their participation is often due to preserving prerogatives or to them positioning themselves as agents of broader coalitions. This last hypothesis is more difficult, if one considers that the military has always seen itself as a moderating power in Brazilian politics (see chapter six). Praetorianism – the impossibility of control over the military – is one of the main components of weak democracies. Haggard and Kaufman add weak institutionalisation (understood as the instability of expectations over the effectiveness of the legal rules of the political game and the search to accomplish political aims through unconstitutional means and continuing contestation) and poor economic performance. The Brazilian case presents challenging and varied factors that call for problematic categorisations and responses. The answers are context-dependent. For instance, to rely exclusively on the tribunals can be a problem for a country where they are involved in the erosion of a constitutional democracy. That does not mean they are dispensable, but courts would have to accept constitutionally designed standards. Neoliberal constitutional amendments and politics have already been used to attack the social-democratic project of the 1988 Constitution. Such threats have been part of a subtler process since at least 2014. It must be recalled that Haiti, the country that suffered the most from a revolution that could free Black people, would also be the place for a reorganisation of the Brazilian armed forces after the 1988 Constitution. For 13 years, and beginning in ex-President Lula’s term (2003–2010), the Brazilian military stood in Haiti with the MINUSTAH (United Nations Stabilisation Mission in Haiti) operation, allegedly in the name of stabilising the country after Jean-Bertrand Aristide left power. Armed forces were modernised with foreign resources and they engaged in civil administrative functions. Democracy was not improved in the country. However, back in Brazil, they would find more reasons to engage again in politics, after the Haitian administrative experiences, since various generals that had been in Haiti took offices in Bolsonaro’s Government.100 And, probably, the military officers would have reason to believe in their success in politics. The authoritarian past seems not to bother Brazilians. A 2019 poll showed that 45% of people consider the armed forces to be the most reliable

99 ibid,

225.

100 Anderson,

Brazil Apart (2019) 349.

Fuelling Attacks on Constitutional Democracy  153 institution in Brazil.101 The questions that remain are related to what extent the Bolsonaro Government will taint the armed forces’ image. Through different levels of attack, military and milícias worked to erode the basis of Brazilian social-democratic constitutionalism as designed by the 1988 Constitution. Of course, the action of the military and the organisation of the milícias are not the same thing. Although the milícias inherited the most odious pre-1988 police and military practices, they have different forms of access to political power. The military is institutionalised inside the Brazilian state (as in any other part of the world), which could be an advantage if it wishes to attack democratic institutions. The milícias actions hover between what is legal and what is illegal, though they are undoubtedly a criminal organisation. The political influence of the milícias remains wider in Rio de Janeiro state, whereas the military are spread throughout the country. Consider, additionally, that the milícias, which traditionally preferred to avoid working in the spotlight, recently seemed to ignore the power of the armed forces, allegedly assassinating Marielle Franco and Anderson Gomes (her driver) under a federal intervention commanded by military officers in Rio de Janeiro.102 The milícias and their inception in the Brazilian state present serious harm to the rule of law. Such organisations and the judicial and military elites’ activities show how the process of democracy’s erosion is complex and layered. Calling normative flexibility ‘proportionality’, parliamentary coups ‘impeachment’, homicide logs ‘resistance records’ and misusing and subverting constitutional and legal institutions have become the pattern of recent movements. Plus, in the sense proposed in chapter four, it is clear that the military and milícias have contributed to the unstable character of Brazilian constitutionalism. Unlike tribunals, who work from the inside, they do it externally. On one hand, milícias simply ignore or violate constitutionalism’s basis in the rule of law. On the other, the military, by cooperating with or ignoring President Bolsonaro’s threats to constitutionalism, foment praetorianism and violate the premises of the rule of law.

101 Folha de S Paulo and Datafolha, Grau de Confiança nas Instituições, 2019, media.folha.uol. com.br/datafolha/2019/04/15/e4dfasfas453434vfa423vavsxfd429b35922gci.pdf. 102 Manso, A República Das Milícias (2020) 191.

6 Moderating Powers? Military and Judges in Brazilian Constitutionalism

B

efore becoming the Federal Supreme Court’s Chief Justice in the period 2018–2020, Justice Dias Toffoli said in an interview that the Court should avoid being a political protagonist and limit itself to act as a moderating power: If the Judiciary wants to be the protagonist of Brazilian society, if it wants to place itself in an illuminist mission to argue that history started with it and anyone who says that is selling illusions, if we want to be protagonists, we will be substituted. And by whom?1

The moderating form of conceptualisation seems pretentious, since the 1988 Constitution provides that the Federal Supreme Court shall guard, as a central (but not the only) actor, said constitution.2 In other words, the judicial elite at the Federal Supreme Court, the apex of the judicial branch, are more akin to guardians than to a branch that is beyond or above the three branches, as would be the case of a moderating power – as this chapter will show. At the launch of his book, A Batalha entre os Poderes (The Battle Between the Branches), a prominent Brazilian scholar, Oscar Vieira, stated that courts and judges in Brazil had lost their moderating power and it had transferred to the military, which had had this function in the past.3 Contrary to and, at the same time, in accordance with Justice Dias Toffoli, Vieira seems inclined to see a ‘branch beyond branches’ as a normal phenomenon in Brazilian constitutional 1 Translated from: ‘Se o Judiciário quiser ser protagonista da sociedade brasileira, se quiser ser aquele que se acha numa missão iluminista de entender que a história começou com ele, e quem diz isso está vendendo ilusões, se nós quisermos ser protagonistas, vamos ser substituídos. E por quem? – argumentou o ministro.’ See J Ribeiro, ‘Toffoli Diz que STF Tem Que Agir Como Poder Moderador, Sem Buscar Protagonismo’, O Globo, 15 June 2018, oglobo.globo.com/brasil/ toffoli-diz-que-stf-tem-que-agir-como-poder-moderador-sem-buscar-protagonismo-22783577. 2 ‘Article 102. The Federal Supreme Court has primary responsibility for safeguarding the Constitution, with the power …’. 3 E Batista, ‘“Poder moderador passou do Judiciário para os militares”, diz Oscar Vilhena’, Folha de S Paulo, 6 December 2018, www1.folha.uol.com.br/poder/2018/12/poder-moderador-passou-dojudiciario-para-os-militares-diz-oscar-vilhena.shtml.

Moderating Powers?  155 architecture. The difference is that he supposes a recent transfer of it from the courts to the barracks, an awkward situation, at least, for a country that has repudiated the long and repressive dictatorship imposed by the military from 1964 to 1985. President Jair Bolsonaro also argued for an extraordinary role to be played by the armed forces in the Brazilian political scene, siding with the revisionists of the dictatorship. Going well beyond traditional views, he attributed to the armed forces not only an arbitrational function, but a role as democracy’s guarantor. He declared that democracy and liberty only exist when the armed forces want them to.4 In 2020, as he joined demonstrations to shut down the National Congress and the Federal Supreme Court (amid COVID-19 measures against agglomerations), a famous conservative jurist promptly provided an interpretation of Article 142 of the 1988 Constitution that would allow for such exceptional moderating functions for the armed forces.5 The Federal Supreme Court played a key role in quickly refusing it6 – at the same time that Jair Bolsonaro was planning to position troops around the Court.7 Nonetheless, as seen in chapters three and four, the judicial branch played a role in creating the quicksand in which it was being engulfed. As one can see, this is a debate that involves not only the meaning of separation of powers, but also the proper lines of distinction between law and politics. In the end, who is entitled to solve a conflict between the three traditional branches? Moreover, in the cases of constitutional and political crises, should there be a final word? Who should pronounce it in the Brazilian constitutional scheme? Why does this political and legal idea persist, from the birth of Brazilian constitutional history until the present day? Why has a concept formulated by Benjamin Constant in the nineteenth century been invoked so many times in Brazilian politics? If concepts play a role in present-day democracies – which they do – it is crucial to understand the historical and political trajectories that define them. 4 R Gaier, ‘Brazil’s Bolsonaro says democracy, liberty depend on military’, Reuters, 7 March 2019, www.reuters.com/article/us-brazil-politics/brazils-bolsonaro-says-democracy-liberty-dependon-military-idUSKCN1QO2AT. 5 I Martins, ‘Cabe às Forças Armadas moderar os conflitos entre os Poderes’, Conjur, 28 May 2020, www.conjur.com.br/2020-mai-28/ives-gandra-artigo-142-constituicao-brasileira. The 1988 Constitution provides for: ‘Article 142. The armed forces, made up of the navy, army and air force, are permanent and regular national institutions, organised on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and intended to defend the Nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order.’ 6 See Federal Supreme Court, MI 7.311, judgment of 10 June 2020, www.stf.jus.br/arquivo/ cms/noticiaNoticiaStf/anexo/MI7311.pdf; Federal Supreme Court, MC ADI 6.457, judgment of 12 June 2020, www.stf.jus.br/arquivo/cms/noticiaPresidenciaStf/anexo/ADI6457.pdf. See also E Meyer and T Bustamante, ‘Judicial Responses to Bolsonarism: The Leading Role of the Federal Supreme Court’, Verfassungsblog, 16 June 2020, verfassungsblog.de/judicial-responses-to-bolsonarismthe-leading-role-of-the-federal-supreme-court. 7 M Gugliano, ‘“Vou Intervir!” O Dia em que Bolsonaro Decidiu Mandar Tropas para o Supremo’, Piauí, August 2020, piaui.folha.uol.com.br/materia/vou-intervir.

156  Moderating Powers? There is value in understanding why the idea of a moderating power continues to be so popular in Brazilian constitutional history. With a scenario of democratic erosion taking place in contexts as varied as the United States, Hungary, Poland and Brazil, it is vital to ask what legitimising discourse is being used by those who control, or aim to control, political power. This chapter examines why the idea that the armed forces or courts should exercise a moderating function in situations of crisis gained so much importance in Brazilian constitutional history. The purpose is to show that in relation to the 1988 Constitution, such moderating power, as invoked by military and judicial elites, is not only non-existent, but unconstitutional and illegitimate. This chapter will review how the idea of a moderating power was introduced in Brazilian constitutionalism by the 1824 Constitution. It will go on to provide an understanding of how authoritarianism has grown at the same time that the militaries and the courts disputed the heritage left by a moderating power that was no longer constitutionally provided. It looks at how the military has acted as a sword hanging over political authorities, referring to the ghost of a moderating power. It then aims to comprehend how the moderating power was, at the same time, an expendable concept for a dictatorship and the translation of a supposed necessity in times of crises, including from an academic perspective. The chapter seeks to understand the transfers of the moderating function from military to judges – and supposedly back to military. Finally, it will verify how such a concept contributes to weakening Brazilian democracy and the basis built by the 1988 Constitution. I.  AN OVERVIEW OF THE MODERATING POWER

The idea of a moderating power appeared initially in a Clermont-Tonerre publication, Analyse raisonnée de la Constitution française.8 The concept of a power that could avoid possible conflicts between other branches (in the latter view of Constant, the executive, the permanent representative, the public opinion representative and the judiciary powers) was thought to act as something that could put the other branches in their natural places.9 It would be an external and neutral force. That is the idea that Benjamin Constant developed for the 8 See M Repolês, Quem Deve Ser o Guardião da Constituição? Do Poder Moderador ao Supremo Tribunal Federal (Belo Horizonte, Mandamentos, 2018) 43; M Cattoni and A Alves, ‘As Origens do Poder Moderador na Constituição de 1824: Novas Contribuições para a Teoria do Poder Constituinte e o Problema da Fundação Moderna da Legitimidade’ in M Cattoni (ed), Constitucionalismo e História do Direito (Belo Horizonte, Pergamum, 2011) 163–90. Carvalho and Gileno (E Carvalho and C Gileno, ‘Reflexões sobre o Poder Moderador nas instituições políticas brasileiras: o pretérito e o presente’ (2018) 15 Em Tese 16) argue that, politically, the first one to use the expression was Jacques-Henri Bernardin de Saint-Pierre, during the debates of the French Constituent Assembly of 1789. 9 A Alves, Elementos Bonapartistas no Processo de Constitucionalização Brasileiro: Uma Análise Crítico-Reflexiva da História Constitucional Brasileira de 1823 a 1945 (Belo Horizonte, Conhecimento, 2018) 79.

An Overview of the Moderating Power  157 first time in 1815. Constant conceives of three gears that can cross each other, collide or interlock, so a device is required to locate them in their appropriate spaces. Constitutional monarchy installs this neutral power in the hands of the head of state.10 A moderating branch11 was provisioned in favour of the Brazilian Emperor in Article 98 of the 1824 Brazilian Constitution, Brazil’s first constitutional document. It defined this power as the key of all political organisation, the Emperor being its unique representative and having the role of maintaining independence, balance and harmony between the other branches of government.12 As Repolês shows, there remains confusion over who was the true ‘father’ of the concept in the Constitution of 1824. Emperor Pedro I dissolved the National Assembly that was supposed to enact the constitutional text.13 He nominated a group of 10 ‘prominent’ citizens to create a document to be imposed by him. In fact, the proper configuration of a moderating power was part of the debate of the Constituent Assembly of 1823. The critical approach Pedro I took was one of the causes of the assembly’s dissolution, as he favoured a more potent formula, not only an arbitrational one.14 Twenty years after the enactment of the 1824 Constitution, none of the prominent citizens indicated by Pedro I were inclined to accept responsibility for inserting the concept into the document. At that time, some people defended its inclusion as a means for Pedro I to show his strength. Others argued that the moderating power could act as a unifying tool to allow the construction of an idea of a nation in the context of social disputes and ideological conflicts. 10 B Constant, Escritos de Política, E Brandão (trans), C Quirino (ed) (São Paulo, Martins Fontes, 2005 [1815]) 19. 11 In the Portuguese language, when referring to a branch of government, in the sense of Montesquieu’s system, the word ‘power’ is used – and, simultaneously, as power in a general sense. Unlike the English language, there is a proper substitute for common usage that refers specifically to government branches. In Brazilian constitutionalism, the moderating power was originally exercised by a moderating branch – represented by the Emperor – therefore, this chapter uses ‘branch’ to refer to the constitutionally provided body of government. The ‘moderating power’ phrase will be used when talking about the exercise, or attempts to do so, of ‘power-over’, in the sense of the probability that the military or the Federal Supreme Court will be in a position to carry out its own will (as a solution to gridlocks among branches) despite resistance, regardless of the basis on which this probability rests (M Weber, Economy and Society: An Outline of Interpretive Sociology, E Fischoff et al (trans) (Berkeley, CA, University of California Press, 53). The author thanks Mariana Oliveira for advice on this explanation. 12 The original text of the Constitution of 1824 was: ‘Art. 98 – O Poder Moderador é a chave de toda a organização política, e é delegado privativamente ao Imperador, como chefe supremo da nação e seu primeiro representante, para que incessantemente vele sobre a manutenção da independência, equilíbrio e harmonia dos demais poderes políticos’. The constitutional norm could be translated in this sense: ‘Art. 98 – The moderating power is the key of the whole political organization and is delegated privately to the Emperor, as supreme chief of the nation and its first representative, for him to guard endlessly the maintenance of independence, balance and harmony of the other political powers’. 13 Repolês, Quem Deve Ser o Guardião da Constituição? (2018) 36. 14 Carvalho and Gileno, ‘Reflexões sobre o Poder Moderador nas instituições políticas brasileiras’ (2018) 16. For a critical interpretation of the 1824 imperial constitutionalism, see D Gomes, A Constituição de 1824 e o Problema da Modernidade: o Conceito Moderno de Constituição, a História Constitucional Brasileira e a Teoria da Constituição no Brasil (Belo Horizonte, D’Plácido, 2019).

158  Moderating Powers? One significant publication written around the time of the 1824 Brazilian Constitution was Da Natureza e Limites do Poder Moderador (Nature and Limits of the Moderating Branch), published originally in 1860 by Zacharias de Góes e Vasconcellos, a former jurist and liberal politician. Vasconcellos’s writings were challenged by Braz Florentino Henrique de Souza’s conceptions that appeared in the book Do Poder Moderador: Ensaio de Direito Constitutional (The Moderating Branch: Constitutional Law Essay), published in 1864. Whereas Florentino advocated that the moderating power exercised three national unity functions – one social, one juridical and one political – Vasconcellos had a sceptical and critical view. He tried to identify, in a more precise way, how the concept was reconcilable with ministers’ and councillors’ accountability. Ministers would be accountable for the acts of the executive branch; and councillors for the actions of the moderating branch. The executive branch should take care of day-to-day administrative functions. The moderating branch should control any unlimited activity of the other branches. In other words, for Vasconcellos, the Emperor was not able, in a constitutional monarchy, to exercise functions that should be the charge of his ministers. That is why some acts should count on their signatures, preventing the Emperor from transgressing the inviolability of his duty.15 Vasconcellos argued that the defender of the Constitution of 1824 was the National Assembly, aided extrainstitutionally by the press and the public opinion. Contrary to the text of Article 98 of the 1824 Constitution, he reiterated that Constant treated the distinction between royal power and executive power as the actual clef (or key) of the political organisation:16 ‘Ministerial accountability gives the public opinion a legal mean for censuring mistakes without failing with the veneration duty’.17 However, Vasconcellos’ liberal interpretation would not prevail. Instead, comprehensions like the one supported by Braz Florentino Henrique de Souza argued for the complete and absolute inviolability of the Emperor, the one who holds the moderating power.18 More than that, any act that is committed by ministers must be supervised by the Emperor, who manages the moderating power. As Repolês points out, Souza’s interpretation defeated Vasconcellos’ view because of the support of the elites that wanted to hold the privileges built before and during the dominance of the 1824 Constitution.19 All of this is based on old assumptions that confused law and politics, on the one hand, and constitutional monarchy and the parliamentary monarchy on the other.

15 Repolês (n 8) 49. 16 Z Vasconcellos, Da Natureza e Limites do Poder Moderador (Rio de Janeiro, Typographia Universal de Laemmert, 1862) 19. 17 Translated from: ‘A responsabilidade ministerial dá à opinião pública um meio legal de reprovar erros sem faltar ao dever de veneração’ (Repolês (n 8) 50). 18 B Souza, Do Poder Moderador: Ensaio de Direito Constitucional (Recife, Typographia Universal, 1864) 159. 19 Repolês (n 8) 55.

Authoritarianism: A Substitute for the Moderating Power  159 Souza’s conservative perspective was in line with his critique of the tripartite branch division defended by Montesquieu and Locke, and constitutionally spread by the 1787 American Constitution. He believed that such division was incomplete concerning constitutional monarchies. The powers attributed to the executive branch in such political systems should cover special functions inherent to its ‘high dignity’.20 As long as the executive branch could not dismiss ministers, dissolve the legislature or pardon crimes, the superior moderating power should fulfil these tasks. This would be the royal power, which was sufficiently neutral to solve supposed conflicts between the other branches. The Emperor could use the moderating power to act as a mediating authority through a constitutionally provided branch. It could serve as the expression of the sovereignty, the supreme will of the society and ultimately the real regal power or monarchy.21 It is here that Repolês observes a unity between autoritas (the royal power founded in tradition and religion) and potestas (the administrative power to implement political decisions) that is inherent to the moderating power in the way the conservatives interpreted it under the 1824 Brazilian Constitution.22 When the 1891 Constitution delineated a republican government, abolished the moderating branch and delegated the function of defence of the Constitution to an institutional system (constitutional review) that has the Federal Supreme Court as its apex, new challenges arose. The premodern confusion between autoritas and potestas was eradicated, as the differences between law and politics are emphasised. The role of promoting national unity – or constitutional identity, as Rosenfeld puts it23 – could no longer be attributed to the moderating power. II.  AUTHORITARIANISM: A SUBSTITUTE FOR THE MODERATING POWER

The concept of a moderating power did not disappear with the changes in constitutional design that led to the end of the moderating branch with the 1891 Brazilian Constitution. As Koonings interprets the historical process, the military’s participation in politics started with the 1889 coup which forced Emperor Pedro II into exile.24 The armed forces would, from then on, become a ‘quasi-party’ in Brazil, with the controversial task of modernising the country (the question of who delegated to them such a mission remains open). In Koonings’

20 Souza, Do Poder Moderador (1864) 4. 21 ibid, 16. 22 Repolês (n 8) 69. 23 M Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Abingdon, Routledge, 2009). 24 K Koonings, ‘Political Orientations and Factionalism in the Brazilian Armed Forces, 1964–85’ in P Silva (ed), The Soldier and the State in South America: Essays in Civil-Military Relations (New York, Palgrave, 2001) 132.

160  Moderating Powers? view, the armed forces would hold, from 1889 onwards, a moderating power in favour of defending the nation and the constitutional order against external and internal threats. Considering that the moderating branch was no longer present in the constitutions, the conservative tradition of political thought in Brazil needed a substitute. On this point, it is worth noting that the abolition of a proper government branch in charge of exercising a moderating power has not led to the end of proposals defending the existence of a ‘power to moderate’ the relationships among the branches. This permanence is marked by the fact that, in the Portuguese language, unlike the English one, there is no precise word that refers specifically to government branches other than ‘power’. As stated by Koselleck,25 the history of concepts (Begriffsgeschichte) shows that, even if the term is the same, the content it designates can change dramatically. The duration and impact of social and political concepts and their corresponding structures cannot be measured only by the permanence of words, for new substantial meanings can be attached to them. Concepts, therefore, focus on several significant conceptions. As each concept is powerfully articulated within a context – and can only be adequately understood in light of this consideration – they also modify the context, making it understandable.26 The struggle to define political or social positions is also a struggle to occupy these positions and can consciously be used to act upon a given social order. The fall of the Empire did not bring about profound social changes in Brazil to nullify any attempt of external actors to control the political processes. Even if its structure as a government branch no longer existed, the moderating power was still seen as a function to be maintained. One of the main problems concerned who was to fulfil this function and arbitrate political conflict among the branches. It is here that some of the most influential Brazilian scholars would develop their proposals. One of them was Oliveira Viana, the author of Instituições Políticas Brasileiras (Brazilian Political Institutions). He was a severe critic of the transplantation of political ideas from the United States and Europe to Brazil: such a migration would be done in prejudice of the creation of an actual ‘sentiment of the nation’.27 The factor that would avoid the total disintegration of the political organisation before the beginning of the twentieth century was the very moderating power of the Emperor. The political unity of the people would depend on the political regime of the dictatorship, as long as the sentiment of the nation was absent in Brazilian political practices. The need for changes in the political customs of the people could depend not on liberal tools, but authoritarian devices, including constitutional documents.28 25 R Koselleck, ‘Uma história dos conceitos: problemas teóricos e práticos’ (1992) 5 Estudos Históricos 138. 26 ibid, 136. 27 Repolês (n 8) 77. 28 O Viana, Instituições Políticas Brasileiras (Brasília, Conselho Editorial do Senado Federal, 1999) 448.

Authoritarianism: A Substitute for the Moderating Power  161 Oliveira Viana recognises, through an analysis of the Soviet experience, that pressure from state power alone on the people would not be enough. Fascist Italy and Nazi Germany, however, also show that society cannot simply be ignored by the holders of political power.29 But, considering the ‘reality’ of the Brazilian people (which he depicts as the povo-massa or the mass-people), it would be necessary to rely on institutions that could protect them against the arbitrary action of the traditional power holders. This condition would not depend on the vote or the guarantees of liberal democracy, but on institutions like the judicial branch. Civil liberties would not be reassured by political participation. Instead, the protection would depend on the end of the ‘impunity culture’, a problem Viana says had been already detected at least in 1843 by Brazilian politician Nabuco de Araújo.30 Viana then pays tribute to a liberal jurist from the opposite side of the political spectrum, Rui Barbosa. Barbosa identified the key role to be played by judges and courts. As Repolês points out,31 Viana agrees with the defence Barbosa made of the judicial review that would allow courts to annul statutes and administrative acts contrary to the 1891 Brazilian Constitution, this function being the appropriate way to protect civil liberties. The interesting thing here is that Viana has a much more organic view of contemporary democracy, whereas the liberal approach sustained by Barbosa would allow for more pluralism. The tenacity of the moderating power in the Brazilian political debate, especially in favour of judicial prerogatives, shows that Viana’s perspective, although always criticised, was institutionally accepted, and supported by political elites. The Republican Government had to deal with concrete proposals to resurrect the moderating power. Carvalho and Gileno remember that Brazilian politician and author Borges de Medeiros advocated that a new moderating power should be placed in the hands of the President of the Republic.32 Lynch mentions that Borges de Medeiros was worried about creating a safeguard to the stability of the state.33 During the debates that led to the 1934 Brazilian Constitution, Representative João Mangabeira intended to set the moderating power as a function of the Federal Supreme Court, a proposal that was rejected. One must not overlook the fact that these proposals in Brazil occurred at the same time as the broadly influential debate between Carl Schmitt and Hans

29 ibid, 460. 30 Viana (ibid, 502) compares a general accountability that would take place in England to a supposedly widely accepted consensus in Brazil in favour of the certainty of impunity. Therefore, before assuring political liberties, the main aim should be to eliminate that culture of impunity. Those ideas permeated and still permeate Brazilian political conceptions. As soon as a new case of corruption occurs, the first diagnosis is always a poor sociological one that sees the culture of impunity as inserted in every Brazilian citizen’s DNA. 31 Repolês (n 8) 82. 32 Carvalho and Gileno (n 8) 23. Borges de Medeiros had an important role on influencing the political rising of Getúlio Vargas and governed the Brazilian state of Rio Grande do Sul for 25 years. 33 C Lynch, ‘O Poder Moderador na Constituição de 1824 e no Anteprojeto Borges de Medeiros de 1933: Um Estudo de Direito Comparado’ (2010) 47 Revista de Informação Legislativa 105.

162  Moderating Powers? Kelsen on the defence of the constitution was taking place in Europe. Carl Schmitt explicitly relied on Benjamin Constant’s ideas of a pouvouir neutre, one that would stand beyond the vicious and partisan debates that took place in a parliamentary democracy.34 The pouvoir neutre should be managed by the head of the state (the president in the German parliamentary system). Such an assumption would not be a surprise for an author who conceptualised democracy out of the idea of identity between representatives and constituents.35 On the contrary, and ostensibly criticising Schmitt, Kelsen stated that the defence of a constitution should be the role of a constitutional court.36 It is admirable for Kelsen that Schmitt could invoke one of the most prominent authors of constitutional monarchy, Constant, and apply his ideas unreservedly to a republican system. But what is astonishing is that, at the time of Schmitt and Kelsen’s debates, someone could push for courts to use a moderating power that once belonged to a monarch. Kelsen’s archetype of the constitutional review was being defended through a Schmittean reading of contemporary democracy in Brazil. That is not so odd, however, if one takes into account the dominance of elitist democracy or even authoritarian conceptions amongst Brazilian scholars. Beyond these theoretical debates and the defence Borges de Medeiros made of the reestablishment of the moderating power in favour of the President of the Republic, the authoritarian period that started in Brazil in 1937, with Vargas’ coup d’état, made this political tool expendable. Vargas established a regime in which the National Congress was almost unnecessary; his cabinet made legislation through decretos-leis (law decrees) and political opponents were persecuted by the repressive apparatus. One of the foremost Brazilian scholars who cooperated with Vargas and the armed forces to build the framework of the so-called Estado Novo (New State) was Francisco Campos, a jurist and politician from the state of Minas Gerais. Campos was Vargas’ Minister of Education and Health. He was also a great enthusiast of the Legião de Outubro (Legion of October), an organisation with a fascist profile. Campos was a clear anti-liberal and an advocate of dictatorship for the country. Right before Vargas’ coup, he was nominated Minister of Justice and was put in charge of writing the 1937 Constitution, an authoritarian document inspired by the Polish Constitution of 1935.37 Being a critical voice of liberalism, Campos argued for the existence of a mass mood (clima das massas), in which a growing tension would emerge between liberal methods of democracy and irrational processes of political integration.38 34 C Schmitt, La Defensa de La Constitución, P Veja (trans) (Madrid, Tecnos, 1998) 121. 35 C Schmitt, Sobre El Parlamentarismo, trans. Thies Nelson and Rosa Grueso (Madrid, Tecnos, 1996) 34. 36 H Kelsen, Jurisdição Constitucional (São Paulo, Martins Fontes, 2007) 243. 37 For more biographical information on Campos, see cpdoc.fgv.br/producao/dossies/AEraVargas1/ biografias/francisco_campos. 38 F Campos, O Estado Nacional: Sua Estrutura, Seu Conteúdo Ideológico (Brasília, Conselho Editorial do Senado Federal, 2001 [1935]) 28.

Authoritarianism: A Substitute for the Moderating Power  163 For him, the political crises of liberalism, right at the centre of democracy, had called for the intervention of totalitarianism, not the contrary. Many processes derived from technological innovation, even before the 1950s, would lead to irrational political decisions and adhesion to them, making electoral processes like the American presidential election occur under a ‘libertine climate’.39 In the face of the supposedly critical situation that Brazil confronted in the 1930s, it would be the duty of a statesman (Getúlio Vargas) to take an exceptional decision.40 It is no surprise that Campos would see, in 1937, a prorogation of the revolution that took place in 1930. And, of course, he saw no problem later on in also calling the coup of 1964 a revolution and in writing the so-called Institutional Act No 1, which was an attempt to legitimise the rupture. Matters like universal suffrage, constitutional guarantees and public liberties would be adequate for the nineteenth century but were anachronistic by the 1930s. If, on one hand, the state had expanded its activities in the twentieth century, the legislative branch, on the other, would not be able to absorb such new functions, with the parliaments being obliged to delegate powers.41 And if original rights, such as social rights, were the main characteristics of the new order, new and more robust state power should be the primary concern of a constitution. Interestingly, Francisco Campos created a way of preventing courts and judges from becoming a problem for the Estado Novo projects. Without eradicating the judicial or constitutional review function, the 1937 Constitution provided that a judicial ruling that invalidated a statute could be declared without effect, if, in the view of the President of the Republic, it was in accordance with the common good and if the National Congress agreed so by a two-thirds majority in both chambers. The legislative branch, however, remained closed for the entirety of Vargas’ regime. Campos use to say that judicial review was a unique prerogative of American constitutionalism, created by jurists that belonged to the past and intending to impede or moderate popular demands.42 Judicial review would be reminiscent of the monarchical moderating power that would cloud democratic movements. One must recognise that Campos had a genial way of using the constitutional and democratic vocabulary against its purposes, in ways comparable to present-day elected authoritarians’ deployment of autocratic legalism.43 Current Federal Supreme Court justices ignore both his authoritarian credentials and critical approaches to judicial review. In a study conducted in 2013, he was ranked 11th in terms of numbers of quotations in lawsuits dealing with the judicial review of legislation.44

39 ibid, 31. 40 ibid, 40. 41 ibid, 55. 42 ibid, 102. 43 K Scheppele, ‘Autocratic Legalism’ (2018) 85 The University of Chicago Law Review 548. 44 B Lorenzetto and P Kenicke, ‘José Afonso da Silva é o doutrinador mais citado pelo STF’, Conjur, 6 July 2013, www.conjur.com.br/2013-jul-06/jose-afonso-silva-doutrinador-citado-supremo-adis.

164  Moderating Powers? III.  THE GHOST OF THE MODERATING POWER AND THE MILITARY ELITE

Even with the authoritarian methods at the disposal of Brazilian politics, the moderating power did not disappear entirely. After the Second World War and a very brief period of liberal aspiration, the return of Vargas to power through elections is said to have driven the Superior School of War, a centre of military intelligence created in 1949, onto an authoritarian path.45 It was during this time that the concept of national security, an idea essential to the military’s interference in politics, was defined. One of the most influential analyses of the role of the military in acting as a moderating force, or as a moderating model of the relationship between civil and military authorities, was conducted by Alfred Stepan during the 1970s.46 He refused the application of the traditional models of the relationship proposed by the literature (aristocratic, liberal, communist and professional) to Latin America. Stepan considered that a praetorian society, where several institutions (eg the Church, labour unions and student groups) are highly politicised and live together with a constant co-optation of the military by politics. This configuration is in tension with the fact that these societies saw themselves as part of a ‘civilised West’, where parliamentary liberal institutions had to lead development. However, political elites fear the disruption of internal order, want to curb the executive and avoid the mobilisation of new political movements, so allow the military to have some political participation without giving them the complete autonomy to drive politics. It is here that they are called to act as moderating forces. They are invoked continuously to conserve the system. Stepan, then, sees an attempt to normalise this tense relationship: the moderating model would accept a military intervention to recompose the political system – although this reading cannot be seen as constitutional according to any Brazilian constitution. The military would have a moderating role in several moments of Brazilian political life and this would not be seen, as in the liberal model, as ‘pathological interventionism’. Stepan remembers that moderating power existed under the monarchy installed in 1824 and agrees with the thesis that, since 1889, such power was transferred to the military.47 That is why he calls his model a moderating one: he intends to show both the arbitrating and the moderating faces of the armed forces in specific political moments of Brazilian history. The executive authority in Brazil has a history of attempts to co-opt the military to guarantee their political support. For instance, Jânio Quadros, who was President of the Republic for seven months in 1961, would have tried to attract military support when he resigned – he hoped the support would be transformed

45 Koonings,

‘Political Orientations and Factionalism’ (2001) 133. Stepan, Os Militares na Política, Í Tronca (trans) (Rio de Janeiro, Artenova 1975) 50. 47 ibid, 52. 46 A

The Ghost of the Moderating Power and the Military Elite  165 into claims for him to stay in office. Even João Goulart, president between 1961 and 1964 – when the military coup ousted him – tried to capture m ­ ilitary support, primarily from the commander of the territory’s armies, General Dantas Ribeiro. However, the central layer dependent on the political activity of the military was composed of the political elites among the legislature, governors, political leaders, newspaper editors and the electorate supportive of the status quo, in situations where their power was in danger. Stepan’s analysis of the Brazilian constitutions showed that the activity of co-optation was much more a role of the civilian elites than the military themselves, at least in his opinion.48 He remembers that the 1891, 1934 and 1946 Constitutions all contained the normative phrase that stipulated that the military was under the authority of the president, although only ‘inside the limits of the law’ (dentro dos limites da lei). This clause allowed for the military to evaluate whether the president’s orders were lawful or not – even if this interpretation could be challenged in a systematic view of those constitutions. The 1824 and 1937 Constitutions did not include this clause. Additionally, one has to take into account that the authoritarian 1967 Constitution, imposed by the military in charge of the executive, recovered the clause, probably due to the disorder and hierarchical problems that the military dictatorship evoked.49 The 1988 Constitution, in its Article 142, does not include this clause, which is another element to understand the disappearance of a moderating power managed by the armed forces. After 1889, the number of military interventions grew exponentially in Brazil. In 1910, the election of Hermes da Fonseca, a military member, to the presidency, shaped relationships between the civilian and the armed forces elites. In 1922, the movement of the lieutenants (tenentismo) opened the way for more participation. In 1930, a revolution was only stopped by the military because it deposed President Washington Luís and delivered power to Vargas, under the control of a junta formed by members of the armed forces. Vargas’ fascist regime came to an end with a military coup in 1945 that seized power and prepared the ground for new elections. In 1954, with the crisis that the elected Vargas presidency faced involving accusations of attempts of killing a political opponent, a military coup was defended by members of the armed forces that also signed a petition in favour of the resignation of the president. The crisis ended with Vargas’ suicide. At the end of 1954, the military, however, was pivotal in defending the right of Juscelino Kubitschek, the elected president, to take office. As the Brazilian historian José Murilo de Carvalho described, different ideologies permeated the intervention of the military in politics in Brazil after the

48 ibid, 59. 49 A reconstruction of the hierarchy problems that arose during Ernesto Geisel’s military presidency was done by Gaspari (E Gaspari, A Ditadura Encurralada (São Paulo, Companhia das Letras, 2004) 462). For the author, problems between Geisel and his minister of the army, Sylvio Frota, were one of the main reasons for elevating the position of the presidency against the army’s leaders.

166  Moderating Powers? 1824 Constitution.50 A first approach created the metaphor of a soldier-citizen that, although in uniform, had the right to participate in Brazilian politics. Few members of the army would argue in the 1920s that soldiers should be professionalised through distance from political matters and engagement in a strong bureaucracy. It would be a Vargas supporter, Góes Monteiro, who defended the making of the army’s own institutional politics and not the inception of traditional politics inside the army. That would happen, however, without following a democratic pattern. Consider, for instance, that, during the Estado Novo, secret reports showed that the selection of candidates for the Military School in 1942 should exclude Jews, sons of immigrants, Black people, sons of non-married couples and all the sons of political opponents.51 Internal democratisation was never a tendency inside the armed forces. Why should it be so, in their view, for the institutions that surrounded them? IV.  1964–1985 – SUSPENSION AND RETURN OF THE MODERATING MODEL

In 1961, another coup supported by civil elites resulted in the approval of Constitutional Amendment 4, which transformed the political regime into a parliamentary one. That was the condition for Goulart, then vice-president, to take office after President Jânio Quadros’ resignation: a violation of the 1946 Constitution and of the elections that granted him the legitimate right to be president in a presidential system of government. Stepan’s hypothesis is that military coups are successful when the executive’s legitimacy is reduced and when there is the high support of political groups for military intervention.52 What happened in 1964, with the civil–military coup, was that the moderating pattern used by the military was abandoned. Compared to the previous interventions, this was a much more complex scenario, based on a very dynamic range of factors (the international order, support from the United States, the limits of Goulart’s political ability, etc). The armed forces intended to build a permanent apparatus to hold political power through a repressive system. As one can see with Vargas’ Estado Novo, no one needs – or wants – a moderating power if unlimited power is available. For this book, it is more important to recollect the development of a close relationship between the military and the courts during the dictatorship of 1964–1985. Anthony Pereira defends the thesis that the different degrees of relationship between armed forces and judicial authorities in Brazil, Argentina and Chile shaped the way the repressive apparatus acted against political opponents.53 50 J Carvalho, Forças Armadas e Política no Brasil (São Paulo, Todavia, 2005) 63. 51 ibid, 120. 52 Stepan, Os Militares na Política (1975) 62. 53 A Pereira, Ditadura e Repressão: o Autoritarismo e o Estado de Direito no Brasil, no Chile e na Argentina, P Zimbres (trans) (São Paulo, Paz e Terra, 2010) 34.

1964–1985 – Suspension and Return of the Moderating Model  167 Based on the concept of ‘authoritarian legality’ (already mentioned in chapter one) and in different trials and rulings of the Superior Military Court, he was able to conclude that the Brazilian dictatorship resorted less often to ostensive methods of repression. To reach that conclusion, Pereira compared the Brazilian authoritarian regime to the Chilean (1973–1990) and Argentinean (1976–1983) ones. In Brazil, for instance, instead of killing political opponents, the military in power could trust in Brazilian judicial authorities that they would deliver to the political defendants limited access to due process and, in the end, convictions by those courts. The main argument defended by Pereira is that the different juridical scale of repression in Latin America’s Southern Cone depends on the different levels of integration and consensus between judicial and military elites before the rise of the regimes.54 Taking into account the aforementioned key Cold War concept of national security (undoubtedly reinforced after the coup of 1964), the Brazilian organisation of military judiciary included civilian judges, one fact that pushed the military to build a common understanding on how to apply national security statutes. Beyond the organisational criteria, the consensus on a broader conception of national security would, in Pereira’s view, be considered in Brazil to be high, in Chile to be medium and in Argentina to be low. While there is a difference between the influence that can be exercised over civilian and military judges and courts, it is a fact that few cases of opposition came from judicial authorities during the Brazilian dictatorship of 1964–1985.55 There were cases of compulsory retirement of justices of the Federal Supreme Court who had granted habeas corpus to governors and students during the first years of the repressive regime. Institutional Act No 2 of 1966 restricted guarantees of independence, such as the impossibility of removal and the reduction of salaries. However, this seemed to be enough to curb any initial judicial rebellion. Most of the time, judges and courts did not confront the so-called ‘acts of revolution’: several institutional acts prohibited judicial supervision, and judges did not defy them. Closer to the transition, former dictator Ernesto Geisel’s administration tried to keep the courts close to the military by approving Constitutional Amendment 7 of 1977, also known as ‘April’s package’. Geisel imposed the constitutional amendment since he had suspended the work of the National Congress. The constitutional change provided for the new National Magistrates Organic Law, which established the way courts would be organised in the whole country – Complementary Law 35 of 1979 specified the constitutional amendment (as was mentioned in chapter three). The law would survive the 1988 Constitution

54 ibid, 41. 55 By the way, then President of the Federal Supreme Court, Ribeiro da Costa, participated of the meeting that led to the Institutional Act No 1 of 1964 (F Recondo, Tanques e Togas: o STF e a Ditadura Militar (São Paulo, Companhia das Letras, 2018) 35).

168  Moderating Powers? and the Federal Supreme Court precedents and remain in force until the present day. Criteria such as years of service are decisive for the composition of what is called the ‘special organ’ (which has the competencies of the full bench) of tribunals, the presidency of courts and progress inside the career. In other words, the system privileges older judges over younger ones. That logic would be partially changed only with Constitutional Amendment 45 of 2004. Constitutional Amendment 7 of 1977 also created an organ of control of the magistrates, the National Magistrate’s Council, composed only by seven Federal Supreme Court justices, obviously nominated by the dictators.56 Such devices allowed for connections between the military and courts that were not adequately reviewed by the 1988 constitutionalism. V.  MODERATING POWER TRANSFER: FROM THE MILITARY TO THE JUDICIARY AND BACK AGAIN

The 1988 Constitution brought new possibilities to the insistent permanence of the moderating power in this country’s constitutional history. The problem for the defenders of the moderating power of the military, then, is that it would no longer be feasible for this elite to maintain this function. The clause ‘inside the limits of the law’ mentioned by Stepan was not provided by Article 142 of the 1988 Constitution. If one goes further in a systematic interpretation of the 1988 Constitution and the transition it promoted, the military continues to have functions for defending the territory against external aggressions.57 Nevertheless, friction between the civil presidency and the military have been a central topic during the last 30 years, as chapter five demonstrated. The discourse on the Federal Supreme Court acting as a moderating power recommences after the 1988 Constitution, even if one considers the logical implausibility of a moderator inside one of the three branches. These judicial elites played a dubious role in the Constituent Assembly of 1987–1988. Instead of explicit support for human rights and democratic norms to be included in the text and reshaping their functions, they preferred to concentrate on regulations of career, salary and independence, as chapter three demonstrated. As Lima points out, progressive proposals, such as the extinction of the military tribunals, the creation of a constitutional court and agrarian tribunals to rule on the distribution of land, were all rejected.58 This was done in 56 H Mello Filho and J Zaverucha, ‘LOMAN: Um legado autoritário civil-militar do regime militar’ (2016) 24 Teoria & Sociedade 122. 57 E Meyer, T Bustamante and M Cattoni, ‘The Brazilian Constitution of 1988, the Armed Forces, and the Coup d’Etat’, I-CONect Blog, 3 October 2017, www.iconnectblog.com/2017/10/ the-brazilian-constitution-of-1988-the-armed-forces-and-the-coup-detat. 58 F Lima, ‘Revisitando os Pressupostos da Juristocracia à Brasileira: Mobilização Judicial na Assembleia Constituinte e o Fortalecimento do Supremo Tribunal Federal’ (2018) 63 Revista da Faculdade de Direito – UFPR 159.

Moderating Power Transfer  169 favour of judges’ corporative interests, paving the way for a powerful elite in the period that followed the 1988 Constitution. At the time of the transition, the vision of a moderating power in favour of judicial authorities that would have the role of guarantor of the process of democratising Brazilian politics prevailed. Ideas of communitarian constitutionalism created the environment for the future development of the energetic political engagement of Brazilian courts and judges. In several critical moments during the constituent process, it was the same Federal Supreme Court that ruled on conflicts of interest, most of the time favouring conservative positions.59 One cannot overlook the fact that several Federal Supreme Court justices nominated by military dictators stood in office for several years after the new constitution – Justice Moreira Alves, the last one, retired in 2003. In the first years of the 1988 Constitution, Brazilian courts and judges had a more deferrable position per executive and legislative politics. As Daly highlights, the Federal Supreme Court refused to exercise proper constitutional review by refusing constitutional norms’ efficacy. Also, the Court ruled in favour of the impossibility of a concentrated constitutional review of statutes prior to the 1988 Constitution, emphasising legal continuity between authoritarian and democratic regimes.60 That would only be changed in 1999 with the creation of another concentrated control procedure, the claim of breach of fundamental precept (Arguição de descumprimento de preceito fundamental, ADPF). This created a very awkward situation since this same procedure would then be used in 2010 to challenge the Amnesty Law of 1979 that granted the military the impunity it wanted. A Federal Supreme Court, then composed by more activist justices, would rule that the 1988 Constitution was in harmony with the odious understanding that crimes against humanity committed by the military would not taint the constitutional order (as described in chapter one). However, in the 2000s, there was a turnaround. The Federal Supreme Court incorporated new justices that favoured the prominence of the Court before the other branches, such as Justice Gilmar Mendes (a supporter of the ‘Germanisation’ of Brazilian constitutional review and proportionality analyses). Different Brazilian courts and judges started to rule broadly in matters such as education and health rights (see chapter two).61 This process was accelerated with the incorporation of justices such as Luiz Fux and Roberto Barroso. The recent constitutional crises included dubious positions by the Federal Supreme Court that increased the destabilising process, touching or blatantly avoiding ruling (in a kind of judicial underreach) on matters of mega-politics that projected severe effects in the long run.

59 ibid, 160. 60 T Daly, The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge, Cambridge University Press, 2018) 189. 61 See also O Ferraz, ‘Harming the Poor Through Social Rights Litigation: Lessons from Brazil’ (2011) 89 Texas Law Review 1.643.

170  Moderating Powers? One remarkable change the 2000s would bring to the relationship between judicial authorities and other branches is that perceived by Federal Supreme Court Justice Roberto Barroso.62 Conceiving of a broader movement, he saw the post-Second World War era as a time of ‘neo-constitutionalism’, a development dominated by three characteristics. The first was philosophical, by which postpositivism would dominate the legal academy. The second was historical, and emphasised the dominance of the constitutional democratic state. The third was theoretical, and recognised the normative force of constitutions, the expansion of constitutional review and new constitutional categories, such as principles. Those movements sat alongside the growing judicialisation of different social relations. From such a background, Barroso details two functions of the Federal Supreme Court: a counter-majoritarian one and, also, a representative one. Barroso reviews the crisis of representative politics in the present world.63 This crisis allows the conclusion that the judiciary can be the best interpreter of the ‘majoritarian sentiment’. In Brazil, the first reason for that conclusion is that the majority of Brazilian judges have to pass a public test to take office. Barroso does not address the weak suitability of judicial authorities concerning the extreme inequality of Brazilian society. For Justice Barroso, on the contrary, the system would be egalitarian. Other reasons, like security in their offices against political persecution or the necessity of decisions to be based on legal arguments, would strengthen the argument in defence of the representative role. However, no claim made by Justice Barroso could be more striking than the one that supreme courts should play, from time to time, the role of an enlightened vanguard, pushing history forward when it is blocked.64 Under such a thesis, some important Federal Supreme Court rulings would not be the confirmation of fundamental rights institutionalised in the 1988 Constitution, but forms through which the Court ‘contributed to social improvement’. He states that a few of the Court’s rulings would be unacceptable, although this academic criticism has only been presented in the past few years. The end of his proposal is debatable: ‘Guided by the relevant juridical subjects (norms, concepts, precedents), by the constitutional principles and the civilisational values, it is her [the judge] role to interpret the social sentiment, the spirit of his time and the history’s sense’.65 Justice Barroso does not use the phrase ‘moderating power’ 62 L Barroso, ‘A razão sem voto: o Supremo Tribunal Federal e o governo da maioria’ (2015) 5 Revista Brasileira de Políticas Públicas 28. Several of the ideas initially articulated in that article were part of this publication: L Barroso, ‘Countermajoritarian, Representative, and Enlightened: The Roles of Constitutional Courts in Democracies’ (2019) 67 The American Journal of Comparative Law 109. A reply can be found here: T Bustamante, E Meyer and E Godoi, ‘The Legal Philosophy of Brazilian Judicial Populism: A Reply to Justice Barroso’ (forthcoming) The American Journal of Comparative Law. 63 Barroso, ‘A razão sem voto’ (2015) 39. 64 ibid, 42. 65 The original phrase: ‘Pautado pelo material jurídico, relevante (normas, conceitos, precedentes), pelos princípios constitucionais e pelos valores civilizatórios, cabe-lhe interpretar o sentimento social, o espírito de seu tempo e o sentido da história’ (ibid, 46–47).

Moderating Power Transfer  171 at any time. However, what are the boundaries in developing the enlightened vanguard that pushes history forward? Confusion arose when the military was called back to participate in politics. Facing a prolonged political crisis dating back to Temer’s administration in 2014, several members of the military were placed in political positions (see chapter five). They commanded ministries, intelligence bodies and even a federal intervention in Rio Janeiro’s Public Security Secretariat. The commander of the army under Temer’s administration used Twitter to ‘advise’ the Federal Supreme Court against a possible ruling that could prevent former President Lula from being imprisoned (see chapter four). Federal Supreme Court Chief Justice Dias Toffoli used the word ‘movement’ to qualify the coup of 1964 and also nominated a retired general as his aid in the Court. Under Jair Bolsonaro’s presidency, a general commanded the Ministry of Health for most of the COVID-19 pandemic and, as was mentioned in chapter five, 6,157 members of the armed forces occupied various public offices. That could be the reason why explanations of a moderating role to be played by the courts and, especially by the Federal Supreme Court, are also controversial. Vieira agrees with Stepan in the sense that the armed forces used the moderating function within the republic. Still, he thinks that, after the 1988 Constitution, that role started to be transferred to the Federal Supreme Court.66 More than that, Vieira believes that this function would not just be moderating, but reach what he calls a ‘supremocratic’ nature. The Federal Supreme Court would decide political, economic, moral and social themes with the last word, even when constitutional amendments regulated these subjects. The so-called ‘supremocracy’ is due, in Vieira’s view, to the suspicion against politics and to the high constitutionalisation of public life in Brazil – a cause not clearly explained, since the constituent process was democratic and tried to reflect what the political actors wanted at the time. Nonetheless, the Federal Supreme Court was entitled to be the ‘moderating guardian’ of the 1988 Constitution, controlling political majorities and shaping the way the other branches should perform. The conception supports the view Vieira has on the 1988 Constitution, which relies heavily upon its architecture, and is less concerned with the way judges see their roles and their institutional environment.67 The central contradiction comes from building a critique against the growing movement that makes the courts a branch beyond the other branches and, at the same time, asks that these same courts be a unique solution of the problem. Vieira mentions that the extreme difficulties in which the Federal Supreme Court has engulfed itself in the past few years shifted the moderating function,

66 O Vieira, A Batalha dos Poderes: Da Transição Democrática ao Mal-Estar Constitucional (São Paulo, Companhia das Letras, 2018) 228. 67 In Vieira’s words (ibid, 251): ‘Being responsive, therefore, cannot be a consequence of a voluntarist posture of a court, but from an institutional decision to which it is bounded’. Translated from: ‘Ser responsivo, portanto, não pode ser decorrência de uma postura voluntarista de uma corte, mas sim de uma decisão institucional à qual está submetida’.

172  Moderating Powers? once again, to the armed forces.68 The problem is that, in a context of extreme polarisation, the election of a former military member who filled his government with military members, in parallel with the election of several representatives that were once in the barracks, creates another background. As happened in 1964–1985, but with a difference of a decision of the majority in 2018, a moderating power would no longer be necessary. Nonetheless, maybe the trap is even asking that question. In other words, should one still be talking about a moderating power? How does this affect Brazilian democracy? For the political debate that took place after the republic (1891), ‘moderating power’ seemed to be a critical phrase. It was a way for the elites to continue dominating the political process without the need for pure, de facto power. The tradition of authoritarianism, however, was the benchmark of political and juridical theory in the 1920s and 1930s. Things only got worse after 1964. But, the 1988 Constitution was entitled, by its democratic constructive process, to overcome this form of legitimating an elitist use of democracy. What were the hurdles? Can the obstacles to a more profound democratic commitment in Brazil be linked to a weak democracy syndrome? VI.  A CASE OF WEAK DEMOCRACY SYNDROME

In Dictators and Democrats, Haggard and Kaufman aim to critically evaluate the revival of a structural turn in democratisation and consolidation theories.69 They argue that, while modernisation theory was cast into doubt in the face of the third wave of transitions, the failure of many of these new democracies has brought back models focused on the economic structure to explain the transition to, and consolidation of, democratic regimes. This unique structural variation is referred to as the ‘distributive conflict model’. In this sense, authoritarian backsliding would indicate that some improvement in economic levels is necessary for the proper consolidation of democracy. High inequality is seen as an obstacle to democratic rule or even as a factor fomenting reversions to authoritarianism.70 However, in testing this thesis, their empirical findings show that inequality has a lower effect on how transitions and reversals happen, compared to political factors such as participation. Numbers presented by the authors using the CGV (Cheibub, Gandhi and Vreeland) and Polity datasets show that the third wave was also accompanied by a series of at least 25 reversions from 1980 to 2008. These cases must be viewed in light of institutional and political shortcomings, not only economic ones. 68 ibid, 305. 69 R Kaufman and S Haggard, Dictators and Democrats: Masses, Elites and Regime Change (New Jersey, Princeton University Press, 2016) 3. 70 ibid, 12.

A Case of Weak Democracy Syndrome  173 When it comes to distributive conflict transitions,71 their explanation for reversions relies on a ‘weak democracy syndrome’. The abnormality is based on three political and institutional factors: the role of prior authoritarian institutions (especially the lack of civilian control of the military), weak institutionalisation and poor economic performance.72 Two conclusions reached by them are particularly important, not only to Brazil but to transitional constitutional processes as a whole. First, the main factors that shape a democracy (elections, civil and political liberties, etc) are not defined in a binary way and can vary with each other. Second, transitions can be equivalent to incremental processes that take shape over time. The first component of the weak democracy syndrome is the lack of effective civilian control over the military, or praetorianism. Some indicators of praetorianism are a history of a recurrence of coups, the presence of military personnel in core decision-making bodies, control of the military budget and appointment processes and control of state assets, leaving them mainly outside civilian oversight. Although budget control has not been an issue for the military in Brazil since the 1988 Constitution, there has been growing participation of armed forces authorities since the start of Michel Temer’s term. Referring explicitly to Stepan’s work, Haggard and Kaufman argue that all those indicators are accompanied by a normative understanding that depicts the military as having a ‘nation-building’ role or as a neutral arbiter of the political process.73 It is by no means a coincidence that Stepan used the term ‘moderating’ to refer to that role. There are three causal roots through which praetorianism makes democracy more vulnerable. The first is through reactions to civilian attempts to gain control over the military. The second is through a change in the structure of the political game, as incumbents and opposition become more prone to appeal to the military as allies in potential political conflicts. The last one derives from the belief by the military in their so-called role as neutral arbiters of the democratic process, which can lower the threshold for military intervention in politics. Recent politics have shown the inability of the military to act as neutral arbiters in Brazil. In the heated debate over the reform of the Brazilian system of pensions, the military were one of the sectors of public servants that would be less affected (along with their colleagues, the judges). At the same time as a pension reform was proposed, another one increasing their working benefits was attached – high-ranking officers would see an increase in their earnings of up to 76 per cent.74 71 The authors distinguish between three causal paths for regime transformation: ‘Distributive conflict transitions are defined as those in which (1) mass mobilization constitutes a significant and immediate threat to the ruling elite, (2) grievances associated with socioeconomic inequalities constitute at least one of the motives for mobilization, and (3) elites acquiesce to democracy in part in response to these treats. Elite-led transitions … work instead through initiatives undertaken by incumbents or rival elite groups.’ (Kaufman and Haggard, Dictators and Democrats (2016) 13–14.) 72 Kaufman and Haggard (n 69) 20. 73 ibid, 226. 74 E Marshall, ‘Armed Forces Come out Smiling from Military Pension Reform Bill’, The Brazilian Report, 21 March 2019, brazilian.report/money/2019/03/21/military-pension-reform-bill-austerity.

174  Moderating Powers? Institutionalisation, for Haggard and Kaufman, refers to the integrity of constitutional and legal constraints to the political game.75 There are common political expectations surrounding the ways in which political actors interact. One cannot forget here the unwritten rules of American politics as defined by Levitsky and Ziblatt: mutual tolerance and institutional forbearance.76 None of these rules have been respected in Brazil in recent times. The country has experienced a volatile jurisprudence on mega-politics from the Federal Supreme Court (as chapter four shows) mixed with a fragile impeachment process and the imprisonment of two ex-presidents from the democratic period.77 Despite the intricacies of those cases, they give a glimpse of the political turmoil in which judges and the military felt free and legitimised to interfere with or to take part in politics, such as in the process of ‘putting the house in order’. The third component of weak democracy syndrome is poor economic performance. Although, in this case, Haggard and Kaufman rely on a more qualitative analysis, they conclude that poor performance and crises are both causes and consequences of institutional fragilities.78 Crises trigger elite desertions, generate public dissatisfaction and affect the way the Government maintains its public servants’ loyalty. Dilma Rousseff was confronted by a severe economic crisis which necessitated fiscal reforms that she could not force through the Brazilian National Congress, leading to a conflagration that became her (and Brazil’s) political nightmare. Even with the political pendulum turning to the right from Temer to Bolsonaro, Brazil faced, from 2011 until 2020, its smallest growth of GDP in 120 years – a clear sign of an enduring economic crisis.79 COVID-19 only made things worse, especially with President Bolsonaro’s constant denials of the scientific solutions to the pandemic. The Brazilian case shows how the military can reach political positions legally, in precisely the same way as elected autocrats, and use these positions to promote its self-proclaimed role as a neutral arbiter – in other words, exercise a moderating power. That means that the military does not need to try to control the political process as an external actor or through threats of force against politicians. They can supersede, sometimes by invitation, the very own civilian elites that were expected to control them.80 75 Kaufman and Haggard (n 69) 227. 76 S Levitsky and D Ziblatt, How Democracies Die (New York, Crown, 2018) 145. 77 On grounds of a corruption accusation involving Santos Harbour, Michel Temer was arrested in a pretrial detention in 2019, but quickly freed by an appeals court ruling: E Londoño and L Casado, ‘Former President Michel Temer of Brazil Is Arrested in Bribery Probe’, NY Times, 21 March 2019, www.nytimes.com/2019/03/21/world/americas/michel-temer-arrested-prisao.html. 78 Kaufman and Haggard (n 69) 229. 79 L Gerbelli, ‘Brasil caminha para década com crescimento mais fraco em 120 anos’, G1, 25 March 2019, g1.globo.com/economia/noticia/2019/03/25/brasil-caminha-para-decada-com-cresci mento-mais-fraco-em-120-anos.ghtml. 80 Carvalho (Carvalho, Forças Armadas e Política no Brasil (2005) 215) points out that civilian authorities in Brazil must also take the blame for badly treating their relationship with the armed forces. Indeed, even during the leftist governments of Lula and Rousseff, little was done to improve the relationship.

A Case of Weak Democracy Syndrome  175 As to what the constitutional system of 1988 enshrined, the institutional design did not include or ask for an arbitral role in politics exercised by the armed forces or by courts and judges, generally speaking. The military should handle sovereignty issues when they are at stake and under civilian control. To accept the armed forces entering politics is contrary to the 1988 Constitution, especially considering that the institution never recognised the gross violations of human rights committed during the last dictatorship. Courts should take the unique role of defending a constitution, notably in cases where the conditions of the political system’s stability are at stake. The problem, however, is that, if the military will not comply with constitutional norms, judges and courts do not seem to be the most reliable institutions to block it, in a straightforward mix of praetorianism and weak institutionalisation. In any case, judicial and military elites can no longer be seen as exercising a moderating role in Brazil, at least from the perspective of constitutional legitimacy. The debate on the existence of a moderating power remains present in Brazilian politics and scholarship even after the explicit dismissal of that function by republican constitutions. The military and the Federal Supreme Court have both seen themselves and been seen by analysts as the holders of such a power. The democratic 1988 Constitution, however, leaves no room for doubt: there is no place in the Brazilian democratic order for such a ‘branch beyond branches’, no saviour or ruler, outside of democratic control. Such a debate, therefore, speaks to an antiquated, elitist and authoritarian perspective, in which the people need guidance by more illuminated leaders. Considering the growing aspects of a weak democracy syndrome in Brazil stimulated by the election of a president with authoritarian positions, the persistence of such discourse is worrisome. Its logic reaffirms the necessity of the concentration of power to solve the country’s problems. As a consequence, this posture increases attacks on constitutional guarantees, such as the separation of powers and the system of checks and balances. Also, given the controversy on who holds such power, it can become a point of further polarisation of political disputes. In a scenario of deepening discussion and growing gridlocks, the prerogative to exercise a power to moderate can be seen as a serious enough disagreement to justify the further dismissal of constitutional rules. One can conclude that the idea of a ‘moderating power’ in Brazil can only be seen as an authoritarian proposition. The mere existence of such power would require the acceptance of an ‘enlightened role’, capable of telling the people what is best for them, just as the Emperor would. Finally, the fight over who will occupy such a position could further entrench instability and concentration of political power.

7 Digital Constitutionalism WhatsApp Elections and Fake News

T

his chapter focuses on the relationship between new technologies and constitutional democracies. It does so through an analysis of the relationship between capitalism – especially surveillance capitalism – and the democratic legitimacy of contemporary states, aiming to diagnose how Brazilian social-democratic constitutionalism has been affected by the digital age. This will be done by debating the notion of instrumentarian power conceptualised by Shoshana Zuboff.1 These theoretical elements provide a way of understanding how political propaganda is affected by network sharing information. The chapter then debates how fake news and disinformation can influence political decisions by supposedly autonomous citizens. The impact of new technologies in recent elections in Brazil provides a case study. Finally, the provisional answer presented by Brazilian authorities is debated in the final section. It took almost one year for the company WhatsApp (owned by Facebook) to admit that it allowed sending bulk messages to diverse addressees during the Brazilian 2018 presidential elections.2 In a startling report published in the Folha de S Paulo newspaper on 18 October 2018,3 journalist Patrícia Campos Mello reported that companies were hiring services at high cost to promote bulk messages via WhatsApp. The messages targeted the Workers’ Party (Partido dos Trabalhadores) during the electoral campaign. The en masse messaging was supposedly done using public banks of consumer data, including retired people, 1 S Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (New York, Public Affairs, 2019). 2 A high-ranking manager, Ben Supple, admitted the sending of bulk messages by companies in 2019. He supported the use of WhatsApp in elections but declared that bulk messages and automation were forbidden by the terms of service. Also, he declared that the Brazilian elections, at the time, posed a challenge to disinformation processes due to the high polarisation the country faced (P Mello, ‘WhatsApp admite envio maciço ilegal de mensagens nas eleições de 2018’, Folha de S Paulo, 8 October 2019, www1.folha.uol.com.br/poder/2019/10/whatsapp-admite-envio-massivoilegal-de-mensagens-nas-eleicoes-de-2018.shtml). 3 P Mello, ‘Empresários bancam campanha contra o PT pelo WhatsApp’, Folha de S Paulo, 18 October 2018, www1.folha.uol.com.br/poder/2018/10/empresarios-bancam-campanha-contra-opt-pelo-whatsapp.shtml. In a recent book, Patrícia Mello detailed the functioning of what she called a ‘hate machine’ (P Mello, A Máquina do Ódio: Notas de Uma Repórter sobre Fake News e Violência Digital (São Paulo, Companhia das Letras, 2020)).

Digital Constitutionalism  177 and foreign companies were hired to accomplish this task.4 A week later, the Workers’ Party was also accused of using systems of bulk message-sharing.5 In fact, many candidates made use of message-sharing services. At the time of the 2018 campaign, it was not an illegal practice since the expenses were declared to the Electoral Justice – the tribunals responsible for overseeing and managing elections in Brazil – telephone numbers bought from other companies were not used, and there were no negative campaigns against other candidates.6 Bolsonaro’s supporters allegedly did not observe these legal criteria. One of the illegal consequences of these practices was that they presumably were not declared to the Brazilian Electoral Justice, and can reflect an abuse of economic power during the campaign, something that the 1988 Constitution forbids. Among other accusations related to electoral fraud that the Superior Electoral Court must rule on, and what is at the basis of Patrícia Campos Mello’s newspaper report, is the dissemination of fake news. Such judicial procedure can, potentially, decide the results of elections, especially a presidential election. The Superior Electoral Court even had the power, in some of these cases, to revoke the mandates of President Jair Bolsonaro and Vice-President General Hamilton Mourão. In Superior Electoral Court procedures, some electoral investigations were rejected.7 Lawsuits questioning, on one hand, the way a Facebook page with more than one million followers and opposing Bolsonaro was hacked during the 2018 electoral campaign and, on the other, the legality of bulk message sharing are still ongoing.8 These last accusations of mass sharing are connected with another investigation started by the Federal Supreme Court on the creation and sharing of fake news against the Court and other relevant institutions by what some have been depicting as digital milícias.9 Although the investigative

4 A Rodrigues and P Mello, ‘Fraude com CPF viabilizou disparo de mensagens de WhatsApp na eleição’, Folha de S Paulo, 2 December 2019, www1.folha.uol.com.br/poder/2018/12/fraude-comcpf-viabilizou-disparo-de-mensagens-de-whatsapp-na-eleicao.shtml. 5 A Rebello, F Costa and L Prazeres, ‘PT usou sistema de WhatsApp; campanha de Bolsonaro apagou registro de envio’, UOL, 26 October 2018, noticias.uol.com.br/politica/eleicoes/2018/ noticias/2018/10/26/bolsonaro-apagou-registro-whatsapp-pt-haddad-usou-sistema-mensagens.htm. 6 Mello, A Máquina do Ódio (2020) 45. 7 F Amorim, ‘Por unanimidade, TSE arquiva ação contra Bolsonaro por outdoors em 2018’, UOL, 23 June 2020, noticias.uol.com.br/politica/ultimas-noticias/2020/06/23/tse-julgamento-cassacaochapa-bolsonaro-mourao.htm. 8 R Souza, ‘TSE rejeita arquivar ação que pede cassação da chapa de Jair Bolsonaro’, Correio Braziliense, 30 June 2020, www.correiobraziliense.com.br/app/noticia/politica/2020/06/30/ interna_politica,868282/tse-rejeita-arquivar-acao-que-pede-cassacao-da-chapa-de-jair-bolsonaro.shtml; E Militão, ‘TSE rejeita dados do WhatsApp para identificar autor de disparo em massa’, UOL, 22 June 2020, noticias.uol.com.br/politica/ultimas-noticias/2020/06/22/tse-dados-whatsapp-identificarautor-disparo-massa-eleicoes-jair-bolsonaro.htm. 9 The Superior Electoral Court allowed that evidence collected by the Federal Supreme Court in the fake news inquiry be shared with the electoral investigative procedures. See S Teófilo, ‘TSE permite compartilhamento de provas com inquérito de fake news’, Correio Braziliense, 12 June 2020, www.correiobraziliense.com.br/app/noticia/politica/2020/06/12/interna_politica,863361/tsepermite-compartilhamento-de-provas-com-inquerito-de-fake-news.shtml.

178  Digital Constitutionalism procedure is unusual – the Federal Supreme Court is collecting evidence for a case it can rule on in the future – it fostered and deepened the debate on fake news, digital media and their relationship with democratic constitutional institutions.10 Activities such as the way fake news seemed to influence the 2018 presidential elections, cyber-attacks on democracy, and cyber-bullying against vulnerable people and public agents prompted a parliamentary inquiry through the creation of a Congressional Committee on Fake News (Comissão Parlamentar Mista de Inquérito).11 Its inaugural report mentioned the way Brazilian democracy has been, at least from 2013 on, affected by the digital era and new technologies. Complex instruments for driving the public sphere include the use of bots, the creation of artificial debates, fake news, extensive message sharing, cyber-bullying, attacks against the Federal Supreme Court justices, hate speech and illegal actions within the deep web. Such tools were all accompanied by violence. In one of the sessions of the Congressional Committee, a former employee of one of the companies accused of being hired for mass message sharing during the 2018 elections declared that the Folha de S Paulo reporter was hoping to exchange a scoop for sex. President Jair Bolsonaro repeated the accusation and also insulted the reporter.12 These defamations were not isolated. They were coupled with other types of aggression that some supporters of President Bolsonaro often employ. Digital devices are used to commit various forms of assault on institutions and people’s constitutional rights. The Federal Supreme Court inquiry on fake news was strengthened by another investigation required by the Office of the Prosecutor General of the Republic (Procuradoria-Geral da República) against public demonstrations in Brazil. These demonstrations occurred amid the COVID-19 quarantine and called for the abolition of the Brazilian apex court and the National Congress, all in the name of an unconstitutional military intervention. Supporters of Bolsonaro were accused of violating the National Security Act, Law 7.170 of 1983, and some were arrested in pretrial detentions. Additionally, there would be a bureau of hate inside the high-ranking administration of President Bolsonaro that orchestrated attacks on institutions, public agents and journalists (many of them physically injured by Bolsonarists).13 Facebook has 10 Brasil, STF, INQ 4.681, portal.stf.jus.br/processos/detalhe.asp?incidente=5651823. See also E Meyer and T Bustamante, ‘Judicial Responses to Bolsonarism: The Leading Role of the Federal Supreme Court’, 16 June 2020, verfassungsblog.de/judicial-responses-to-bolsonarism-theleading-role-of-the-federal-supreme-court. 11 Brasil, Congresso Nacional, Comissão Mista Parlamentar de Inquérito, Requerimento 11 de 2019, www6g.senado.leg.br/sdleg-getter/documento?dm=7975306&. 12 G Uribe, ‘Bolsonaro insults Folha Reporter with sexual insinuation’, Folha de S Paulo, 18 February 2020, www1.folha.uol.com.br/internacional/en/brazil/2020/02/bolsonaro-insults-folhareporter-with-sexual-insinuation.shtml. 13 Reporters Without Borders, ‘Brazil quarterly analysis. President Bolsonaro’s systematic attempts to reduce the media to silence’, Reporters Without Borders, rsf.org/en/news/brazil-quarterlyanalysis-president-bolsonaros-systematic-attempts-reduce-media-silence; M Andreoni, L Casado and K Semple, ‘In Brazil, a President Under Fire Lashes Out at Investigators’, NY Times, 29 May 2020,

Digital Constitutionalism  179 cancelled the accounts of high-ranking officers’ aides, including a presidential one, who created fake profiles to disseminate hate discourse.14 This shows that the misuse of digital tools started in Bolsonaro’s presidential campaign and was institutionalised throughout his term. Several people who owned websites or social media pages during the election campaigns gained office in the president’s administration. This institutionalisation process made the anti-truth discourse a hallmark of Bolsonaro’s Government. They launched attacks on the press, courts, legislators, public universities, political opponents, as well as the disastrous measures against COVID-19. This scenario can be viewed in three stages. The first layer must separate the external actions that demand criminal and civil liability and that can result in punishment under Brazilian law and the Brazilian Constitution. The second layer is related to understanding the process by which an immoral or even unlawful reading of the Brazilian institutions is fostered or expounded through digital media. The third layer concerns the process of changing behaviours or activating predispositions and obtaining new supporters via hate discourses or lies that have always had a role in traditional politics but which were amplified in the digital era. Thus far, and with few exceptions, this has not been a process debated by constitutional lawyers with the boldness it merits.15 In this chapter, the three stages will be examined together in order to answer a unifying question: to what extent do new technologies and digital-age tools and environments restrict the process of the free formation of a democratic sovereign will? How will an unregulated digital revolution manage processes of constitutional erosion, allowing that candidates and incumbent authorities adopt authoritarian politics based on lies and attacks against scientists, the media and governmental institutions? One criticism of this analysis is that it is predominantly focussed on democratic procedures, deviating from typical constitutional matters. In this reading, one should bear in mind that constitutions and democratic processes are interrelated – or, to use Habermasian terms, there is an equiprimordiality www.nytimes.com/2020/05/29/world/americas/brazil-bolsonaro-supreme-court.html. A Jair Bolsonaro aide, who works inside the presidential building Palace of Planalto, and had also been an assistant of Carlos Bolsonaro (one of Jair’s sons and a one-time Rio de Janeiro city councillor), had his Facebook account suspended. 14 N Gleicher, ‘Removing Coordinated Inauthentic Behavior’, Facebook, 8 July 2020, about. fb.com/news/2020/07/removing-political-coordinated-inauthentic-behavior. 15 For the relationship between welfare politics and new technologies, see S Ranchordas, ‘Public Law and Technology: Automating Welfare, Outsourcing the State’, I-Connect Blog, 15 January 2020, www.iconnectblog.com/2020/01/public-law-and-technology-automating-welfare-outsourcingthe-state; S Ranchordas and Y Schuurmans, ‘Outsourcing the Welfare State: The Role of Private Actors in Welfare Fraud Investigations’ European Journal of Comparative Law and Governance (forthcoming); University of Groningen Faculty of Law Research Paper No 10/2020, available at ssrn.com/abstract=3512114 or dx.doi.org/10.2139/ssrn.3512114. Pioneering the debate in constitutional law were the publications of Cass R Sunstein: C Sunstein, #Republic: Divided Democracy in the Age of Social Media (New Jersey, Princeton University Press, 2017). See also C Sunstein, Republic.Com 2.0 (New Jersey, Princeton University Press, 2007). More recently, see E Celeste, ‘Digital Constitutionalism: A New Systematic Theorisation’ (2019) 33 International Review of Law, Computers and Technology 76.

180  Digital Constitutionalism between private and public autonomy.16 Constitutions shall be based on democratic procedures that are made available by these same constitutions, which are subject to reform as political majorities shift. And, as Elkins pointed out, the constitutional crises that countries face can also be democratic, as long as constitutions are expected to be democratic.17 If states need to tackle constitutional erosion that might lead to constitutional crises, one must consider the relationship between constitutions and democracies. From a comparative point of view, this is not, by any means, an issue unique to Brazil. The initial celebrations of Facebook, Google and Twitter as liberating tools, for example during the Arab Spring, were overshadowed by phenomena such as the sharing of fake news, which stimulated polarisation and imperilled democracy.18 Donald Trump’s election in the United States was the first and most intense example among the traditional, occidental liberal democracies. In November 2016, Facebook had to shut down 5.8 million fake accounts: at least one million sites were using tools to artificially generate ‘likes’ that worked in Trump’s favour. A survey showed that 44 per cent of Americans obtained their political news on politics from Facebook.19 In trying to seduce persuadable voters, the Leave campaign for Brexit in the United Kingdom resorted to physicists and other specialists to use quantum information to mobilise them. New tools such as ‘ad tech’ helped identify who to reach and what message to convey. The question is: are they equally available to all candidates in all electoral campaigns?20 A few days before the 2019 parliamentary elections in Spain, the political party Podemos had its account suspended due to supposed violations of terms of service in sending automated mass messages.21 But elections are not the only constitutional matters affected by new technologies. Hate speech has demanded an analysis of the best ways to ensure digital governance on the Internet – does this involve more state control, or less? For an analytic and detailed constitution, 16 ‘When a political community constitutes itself as such, the founding act of constitution making means that the citizens grant themselves a system of rights that secures their private and public autonomy. At the same time, they expect one another to join in the political process, which Dworkin describes as “a theater of debate about which principles the community should accept as a system”’ (J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA, The MIT Press, 1996) 215). See also W Sadurski, Poland’s Constitutional Breakdown (Oxford, Oxford University Press, 2019) 248. 17 Z Elkins, ‘Is the Sky Falling? Constitutional Crises in Historical Perspective’ in M Graber, S Levinson and M Tushnet (eds), Constitutional Democracy in Crisis? (Oxford, Oxford University Press, 2018) 50. 18 I Krastev and S Holmes, The Light That Failed: Why the West Is Losing the Fight for Democracy (New York, Pegasus Books, 2020) 134. 19 T Snyder, The Road to Unfreedom: Russia, Europe, America (New York, Tim Duggan Books, 2018) 466. 20 M Moore, Democracy Hacked: Political Turmoil and Information Warfare in the Digital Age (London, Oneworld, 2018) 139. 21 J Stone, ‘Spain elections: WhatsApp suspends left-wing party Podemos’s communication channel days before vote’, Independent, 25 April 2019, www.independent.co.uk/news/world/europe/ spain-elections-whatsapp-podemos-channel-close-left-ing-de-olmo-a8886481.html.

Capitalism, New Technologies and Democracy  181 such as the 1988 Constitution, there is a vast catalogue of subjects that demand answers. From the creation of precarious forms of labour to other levels of automation brought about by artificial intelligence, to the range of consequences for privacy in compiling big data or the dominance of markets attained by the big tech giants (Facebook, Google, Amazon, etc), several situations demand, sooner or later, a constitutional answer. An overarching concept in this context is the notion of digital constitutionalism. While still a nascent field, one can, however, agree with Celeste that digital constitutionalism deals with norms that regulate the protection of rights and the balance of powers in the digital context.22 Such a definition assumes that constitutionalism is not only a regulation of public authority but also of private authorities, connecting the concern with the digital environment to the economic one (see chapter two). One could add to this the definition of a constitutional identity by a constitution. If private actors endanger that identity, they do deserve accountability. I.  CAPITALISM, NEW TECHNOLOGIES AND DEMOCRACY

The debates on the advantages and the harms new technologies bring to democracy had just started. Runciman, as an optimist in this field, believes that the supposed velocity by which technology works is always overstated.23 Although artificial intelligence (AI) is not already a broad reality, people can programme machines to do human work. Databases that help political parties and public services are based on big data. Dependency on what devices can help us to do is already part of the addictions people face. The way technologies adapt themselves in a better way than people generally provokes the question of what the limits of that dependency are. And it seems that there is no way out of technological progress. The people who operate the machines, if not the machines themselves, may become the new conquerors of democracy and will dominate it through fake news, bots and predictive behaviour. Machines can be harmful to democracy, but people could use them to improve it. Different political philosophers, from Hobbes to Weber, viewed political activity in parties or states as artificial or mechanical products. Corporations are also unnatural and machine-like; they can be created and terminated quickly, but also survive wars (many German ones survived the First and Second World Wars), reproduce themselves and compete with states (such as the East India Company).

22 Celeste, ‘Digital Constitutionalism’ (2019) 81. See, also, the definition by Gregorio (G De Gregorio, ‘The Rise of Digital Constitutionalism in the European Union’ (2020) International Journal of Constitutional Law (forthcoming), papers.ssrn.com/sol3/papers.cfm?abstract_id=3506692. 23 D Runciman, How Democracy Ends (New York, Basic Books, 2018) 217.

182  Digital Constitutionalism One of the few human creations that can curb corporations is the state. Therefore, what should be done when corporations excessively concentrate most of the world’s wealth, such as the current big data giants? As Zuboff has pointed out, as of 2014, the three Silicon Valley giants (Facebook, Apple and Google) had revenues of US $247 billion, 137,000 employees and a total market capitalisation of US $1.09 trillion. In contrast, in the 1990s, the giant automakers of Detroit had revenues of US $250 billion, 1.2 million employees and a combined market capitalisation of US $36 billion.24 One challenge is that the big tech companies are not simply extinguished as old companies were. People are generally addicted to the comfort and advantages that new technologies offer. Relying on these kinds of trust relationships, these companies extract data on a massive scale that restricts privacy, monetise every aspect of life and predict political behaviour. Furthermore, Runciman refers the case decided by the United States Supreme Court, Citizens United v Federal Election Commission, 558 US 310 (2010), by which corporations were entitled rights of free speech that allowed them to monetise the political domain without accountability.25 Other authors have presented a much more pessimistic view of the harms digital capitalism can cause. Papacharissi makes the point that it is not the nature of technology, but the discourse that surrounds it, that determines their impact on society.26 Technology, big tech and big data are non-neutral because of that discourse. An initial way to diagnose this scenario is through the connections between capitalism and the Internet. Political capital generated by online media is not automatically an advantage. Access to information does not by itself generate more participation, civic engagement or trust in the political process. Class, gender and race inequalities are reproduced online. Private individuals continuously challenge the public agenda. Finally, access to information does not allow for effective access. There is also a concern that online conversations will not lead to more reciprocity, but instead magnify cultural disparities. Political discussions are also too fragmented and dominated by a minority, and tend to take place between people that already are familiar to each other. Commercialisation plays a detrimental role too, with profit-oriented objectives curtailing civic participation. Online media produces a public space, but it does not foster a public sphere in the Habermasian sense.27

24 Zuboff (S Zuboff, ‘Big other: surveillance capitalism and the prospects of an information civilization’ (2015) 30 Journal of Information Technology 81) describes as the Big Other an architecture that involves technologies that record, modify and turn into commodities a broad range of aspects of everyday life. 25 Runciman, How Democracy Ends (2018) 233. 26 Z Papacharissi, ‘The virtual sphere 2.0: the internet, the public sphere, and beyond’ in A Chadwick & P Howard (eds), Routledge Handbook of Internet Politics (New York, Routledge, 2009), 230. 27 Z Papacharissi, ‘The virtual sphere 2.0: the internet, the public sphere, and beyond’ in A Chadwick & P Howard (eds), Routledge Handbook of Internet Politics (New York, Routledge, 2009), 236.

Capitalism, New Technologies and Democracy  183 It could be a way out to move from the Habermasian theoretical background to Chantal Mouffe’s concept of agonistic pluralism that would allow for the reinsertion of left and right into everyday politics.28 Conflicting parties can move from the search for consensus towards self-expression and disagreement. The problem is that politics are currently very polarised on the Internet, which has disrupted the accepted grounds on which agonistic pluralism could be acceptable. Another troubling aspect concerns the commercialisation of forums that were primarily supposed to offer alternatives to traditional media. This is a phenomenon not only promoted by communication conglomerates, but also by the big tech companies, who have expanded their commercial interests to every aspect of day-to-day life. Additionally, Ronald Deibert presents an alarming description of the threats the Internet can pose to political authority.29 The first concerns how the surveillance of personal data is fundamental for several companies. The second painful truth is related to how social media is designed to make individuals addicted, preventing them from making autonomous decisions on what political, commercial, etc decisions to take. Third, the configuration of social media is open to authoritarian practices, with algorithms exploiting emotional responses that can enable manipulation. Since Donald Trump’s election and the Brexit referendum, the big tech companies have faced public scrutiny for their cooperation in shaping the results of elections. Referring to Shoshana Zuboff’s surveillance capitalism concept, Deibert explains it as a transaction model by which consumers have access to free services in exchange for having their behaviour observed in order to be appropriately advertised to.30 Deibert’s interpretation of Zuboff, however, is restricted, as long as it does not adequately capture the relationship the big data companies have with their users. This misleading reading can help us, however, understand what the true scope of big tech companies is. In its endless search for more data, Google, for example, is prone to benefit advertisers, not the users. To Google, those companies show what can be called ‘formal indifference’ – or ‘radical indifference’, as demonstrated below.31 There are no proper ‘transactions’ in surveillance capitalism. The logic is best qualified as an extraction: a one-way process that transforms users from subjects into objects that can be commodified and monetised. The way those companies pursue their objectives represents the exploitation of a legally and socially unregulated territory where everything is allowed until resistance is encountered.

28 Z Papacharissi, ‘The virtual sphere 2.0: the internet, the public sphere, and beyond’ in A Chadwick & P Howard (eds), Routledge Handbook of Internet Politics (New York, Routledge, 2009), 2009, 241. 29 R Deibert, ‘The Road to Digital Unfreedom: Three Painful Truths About Social Media’ (2019), 30 Journal of Democracy 1, 25. 30 R Deibert, ‘The Road to Digital Unfreedom: Three Painful Truths About Social Media’ (2019), 30 Journal of Democracy 1, 26. 31 Zuboff, ‘Big other’ (2015) 79.

184  Digital Constitutionalism There is no reciprocity here. The system has overcome the traditional Western twentieth-century model of capitalism and now features advertisers that need Google, Instagram or Facebook. Between big tech companies and users lie the ‘analytic’ companies that provide the selection of appropriate users to the interested advertisers. It is only because of scandals (eg Cambridge Analytica) that these services were brought to light. The other painful truth about social media is that it provokes addiction. Levels of oxytocin increase by 13 per cent after 10 minutes of engagement, and people generally suffer lapses of humour if they are prevented from using social media. There has also been research into the design of social media, which is supposedly based on the logic of casinos.32 Another negative consequence produced by social media comes from its connections to authoritarianism. With incommensurable big data, content that is extreme and divisive is more likely to be shared than that which is based on principles and refers to intricate narratives. It is logically easier for users to return to content that pleases them than to reflect upon discoveries or to exercise critical readings of already-established opinions. In the face of fake news, fact-checking is more challenging and takes more time than simply believing in conspiracy theories.33 Since 2001, Cass Sunstein has questioned the capacity of deliberative democracy in an environment where bias confirmation and homophily are exacerbated at the level of promoting only polarisation.34 What was a suspicion in 2017 that Facebook knew users’ political preferences and shared them with parties and candidates has become a given certainty.35 Bias confirmation is fed by echo chambers that generate partisanship and the likelihood that people believe in and share falsehoods. To oppose echo chambers, public forum doctrine recommends allowing speakers to reach a diverse range of listeners, have contact with specific addressees and institutions and promote a varied exposure of people and ideas. The empirical findings of Price, Capella and Nir indicate that disagreement in political conversations can foster deliberative opinion, that is, the ability to support one’s viewpoints, not only with friendly arguments, but also with the ideas others can present in favour of the opposite opinion.36 In other words, bursting bubbles can be helpful for deliberative democracy.

32 M Busby, ‘Social Media Copies Gambling Methods “To Create Psychological Cravings”’, The Guardian, 8 May 2018, www.theguardian.com/technology/2018/may/08/social-media-copiesgambling-methods-to-create-psychological-cravings. 33 R Deibert, ‘The Road to Digital Unfreedom: Three Painful Truths About Social Media’ (2019) 30 Journal of Democracy 32. 34 Sunstein, #Republic (2017). See also Sunstein, Republic.Com 2.0 (2007). 35 Sunstein (n 15) 13. 36 V Price, J Cappella and L Nir, ‘Does Disagreement Contribute to More Deliberative Opinion?’ (2002) 19 Political Communication 107.

Surveillance Capitalism and Instrumentarian Power  185 Above all, an additional republican element of the public forum doctrine inserts filters (political representation; checks and balances) between people and the law to apprehend the technical details of public policies.37 Social media and other technologies tend not only to decrease the importance of those filters, but to decry them. If one accepts that populism is mostly based on strong criticism and attacks upon traditional representative institutions,38 digital technology has become an ally of populist leaders. In this sense, constitutions cannot automatically promote the celebration of new technologies. II.  SURVEILLANCE CAPITALISM AND INSTRUMENTARIAN POWER

In her theory, Zuboff describes surveillance capitalism as a way of transforming human experience into data.39 It allows for the creation of prediction tools using AI that not only ascertains what people want, but determines what they wish to do. Driven only by economic imperatives, it is a logic of the accumulation of data about every single human being that is not attuned to social norms and endangers the traditional basis for self-government and constitutional democratic society. Additionally, surveillance capitalism is a logic of accumulation both unprecedented and directly connected to the digital space, although it does not merge into it. Surveillance capitalists employ the inevitability argument. Consequently, surveillance capitalism would also be inevitable – although digital technology can and shall be controlled by human beings and, if necessary, by the state. Zuboff depicts a change from first modernity forged by mass capitalism and collective solutions towards the second modernity of individualism promoted by neoliberal logic.40 That is an essential assumption, as social constitutionalism countries have already been affected by neoliberal agendas, as examined in chapter two. The results provided by the neoliberal agendas fomented a financial form of capitalism that was antisocial. It generated unemployment, a lack of education and other effects that fostered concentrated wealth in an unimaginable way. A supposed individualisation would characterise a third modernity via algorithms and massive contracts hardly understood by users, who give up their individual rights to vastly powerful companies. The big tech companies act according to an extraction imperative, by which they: i) corner users to obtain from them behavioural surplus;41 and ii) initiate a complex cycle of dispossession to extract more data from users. That cycle includes methods of incursion, habituation, adaptation and the redirection of companies’ practices for dispossessing data. 37 Sunstein (n 15), 50. 38 J-W Müller, What Is Populism? (Philadelphia, University of Pennsylvania Press, 2016) 59. 39 Zuboff, The Age of Surveillance Capitalism (2019) 8. 40 Zuboff (n 1) 36. 41 For instance, Google gives the best position for advertisers in its search engine results based on its own estimations that a user will actually click on an ad.

186  Digital Constitutionalism The surveillance capitalist orders to extract behavioural surplus depend on an instrumentarian power to function. Big tech companies instrumentalise behaviour with the purposes of modification, prediction, monetisation and control: they act upon user behaviour to push them towards conformity to big tech’s economic objectives.42 Instrumentarian power is not the equivalent of digital totalitarianism. However, instrumentarian power is, as surveillance capitalism, unprecedented, which is why it demands scrutinous analysis. Totalitarianism was dependent on violence, especially to eliminate through genocide those who did not fit a definition of ‘the people’. Current forms of politics, like the one adopted by Bolsonaro and its supporters, share its admiration for political violence and the physical elimination of political opponents.43 Much of the use of digital technologies, as already mentioned, includes harassment and threats to rivals and their families. Nonetheless, contemporary developments have made available to authoritarians the instrumentarian power that the Mussolinis and Stalins of the past did not have. Instrumentarian power aims at behavioural modification. In this case, only the data that is available for its extraction purposes is of relevance. The scientific basis for understanding behavioural change is the psychological theories of BF Skinner and Max Meyer, who proposed an objective science of human behaviour by decoupling what Skinner called the ‘Other-One’. The human being should be seen as an organism among other organisms.44 Autonomy and freedom are fictions people use to cover their ignorance of the fundamental environmental factors that govern our behaviours. Dignity or liberty are escape routes for the unavoidable discovery of predictable behaviour. The future imagined by Skinner would be fulfilled by technologies that shape actions. That is the future of instrumentarian power. Instrumentarian power depends on a feature that has arisen in the connection between surveillance capitalism and neoliberalism, ie ‘radical indifference’ towards any by-product of the use of digital technologies. In other words, behaviour can be shaped without computers being sensitive to the content of online activity. These movements produce sameness without equality. All users are treated with the equivalent objectification. In this case, there is no need to appeal to torture or violence, as totalitarian regimes would do. It becomes easier, in this sense, to erode democracy from the inside. However, if no populist government needs to be totalitarian, it can become so over the rubble of an

42 Zuboff (n 1) 352. 43 J Salles, ‘A Morte e a Morte no Governo Bolsonaro’ Piauí, July 2020, piaui.folha.uol.com. br/materia/a-morte-no-governo-bolsonaro. Think, for example, of the occasion during the presidential electoral campaign when Bolsonaro uttered that his government would eliminate the left-wing foes or send them overseas or to jail (T Phillips, ‘Brazil’s Jair Bolsonaro threatens purge of leftwing “outlaws”’, The Guardian, 22 October 2018, www.theguardian.com/world/2018/oct/22/ brazils-jair-bolsonaro-says-he-would-put-army-on-streets-to-fight). 44 Zuboff (n 1) 363.

Surveillance Capitalism and Instrumentarian Power  187 eroded constitutional democracy. All of this is supposedly justified by the shared common-sense view that technological advancement is inevitable. Furthermore, surveillance capitalism depends on offering pragmatic solutions such as connectivity, access to information and time saving. There is an offer of certainty and stability. All of this is done using the standards of neoliberalism: extreme inequality and exclusion that, hence, produce the conditions for exploitation by surveillance capitalists. It is easy to imagine how COVID-19 accelerated these characteristics. Zuboff shows how the performance of the big tech companies accompanied the descent of mutual social trust and government confidence in consolidated democracies in recent decades.45 In authoritarian regimes such as China, instrumentarian power is connected to state organs to generate stability by shaping not only market behaviours, but also social behaviours. Algorithms are used not only to rely on final purchases but education degrees or the size of social bonds with friends – it resembles the system of sesame credit used by Alibaba. In extremely unequal countries such as Brazil, the lack of Internet access for poor people is overcome by cell phone companies that, while charging for telephone services, offer zero-rating or free access for using Facebook or WhatsApp.46 During elections, it becomes easier for candidates to reach diverse social segments. The controlling of the Internet by overtly authoritarian countries is different from the perils new technologies can present in consolidating or consolidated democracies. To build a ‘Great Firewall’ and block access to the worldwide web, like in China, requires decades of investment and homegrown software industries that can be alternatives for the big tech companies.47 Authoritarian countries (eg Iran and Russia) need to rely on other tools such as information glut, targeted harassment and the use of trolls. However, the issues that are important in cases such as Brazil are related to abuses that take place using the supposedly free environment generated by the platforms that big tech companies provide. One needs, however, to take a step back and pose one fundamental question: are those digital environments genuinely free? To answer this question, the next step will show that the big tech companies depend on a different form of capitalism. Surveillance capitalism includes, as one of its most important features, the annulment of individual autonomy. The frightening side of surveillance capitalism is how the state can watch over all citizens that are governed by it. One of the first experiments in complete surveillance took place in the second most populous country in the world. 45 ibid, 384. 46 ‘Most Brazilians therefore have unlimited social media access but very little access to the rest of the internet. This likely explains why 95 percent of all Brazilian internet users say they mostly go online for messaging apps and social media. Yet the “rest of the internet” is precisely where Brazilians might have verified the political news sent to them on WhatsApp during the 2018 election.’ (L Belli, ‘WhatsApp skewed Brazilian election, proving social media’s danger to democracy’, The Conversation, 5 December 2018, theconversation.com/whatsapp-skewed-brazilian-election-proving-social-medias-danger-todemocracy-106476). 47 Z Tufekci, Twitter and The Tear Gas (New Haven and London, Yale University Press, 2017) 238.

188  Digital Constitutionalism The Aadhaar project was aimed at digitalising, with a 12-digit identification and associated biometric data, all of India’s more than one billion people.48 With few tools of accountability and several flaws that allowed for hacking, Aadhaar survived the criticisms. For a state to own full details about its citizens is a task that faces two obstacles: a pragmatic one, as it is too hard to collect and maintain accurate data for every ordinary citizen, and a moral one, as this task surely can harm privacy and individual autonomy. Aadhaar is not merely a database, but a platform, which means that governments and companies can have access to it.49 As soon as Narendra Modi came to power, he changed his views on Aadhaar and started supporting and expanding the project, mostly in the name of fighting corruption in the access to welfare policies. Diverse public and private services started to use the Aadhaar platform as a basis for functions ranging from opening a bank account to obtaining a mobile phone number. The Indian Supreme Court restricted part of this comprehensive achievement in a ruling in 2018.50 The Court authorised the Government to subordinate access to social benefits to Aadhaar and allowed its connection to tax identification. However, it forbade private services from demanding that citizens have Aadhaar. The Court relied on the proportionality doctrine that was in a precedent that had protected privacy and individual autonomy. Additional problems, however, are pointed out by Moore:51 citizens carry the burden of proof to provide evidence that their fingerprints correspond to the ones stored by Aadhaar in order to obtain rations or other government benefits. Another problem relates to the links between the digital system and the National Popular Register, which stores information on caste, ethnicity or religion, a kind of statelevel identification of groups that can increase discriminatory practices. In Brazil, an essential step against surveillance was taken by the National Congress with the enactment of a General Act on the Protection of Data (Law 13.709 of 2018). The Act was based on respect for privacy, informed autonomy, human rights, the free development of people and other standards, following the Civil Rights Framework for the Internet created in 2014 (Law 12.965 of 2014). Bolsonaro, however, in a very confusing confrontation with the National Congress, set the date for the coming into force of the sanctions provided 48 Moore, Democracy Hacked (2018) 223. 49 The Information Technology and Innovation Foundation conceptualises digital platforms as ‘Online businesses that facilitate commercial interactions between at least two different groups – with one typically being suppliers and the other consumers. Airbnb, Amazon, BlaBlaCar, Deliveroo, Facebook, Google, TaskRabbit, Uber, and Xing are all platforms, but they have different business models and they interact with end users and other businesses in different ways. Consequently, each platform has created different rules to optimize these interactions’. Following one common trend in this field, the foundation depicts attempts to regulate platforms as ‘misplaced’, claiming rules for specific ‘problems as they occur’. See The Information Technology and Innovation Foundation, ‘What Are Digital Platforms?’, 12 October 2018, itif.org/publications/2018/10/12/ itif-technology-explainer-what-are-digital-platforms. 50 Supreme Court of India, Writ Petition (Civil) no 494 of 2012, Judgement of 26 September 2018, www.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_26-Sep-2018.pdf. 51 Moore (n 20) 230.

Politics and Network Propaganda   189 for by the General Act on the Protection of Data as August 2021. Although Bolsonaro has adopted a sceptical approach to COVID-19, the move can be read as an attempt to obscure the use of private data to monitor citizens during the pandemic with other unconstitutional ends.52 Plus, he captured the National Authority on Data Protection, responsible for regulating the protection of personal data. The President appointed members of the armed forces to three of the five offices of the body. Consider that President Bolsonaro also issued a decree to create the Citizen’s Basic Record,53 a central register that would gather and share all the information collected by diverse state agencies. The Brazilian Intelligence Agency even tried to gain access to driving licence data, only backpedalling when the Federal Supreme Court stepped in. III.  POLITICS AND NETWORK PROPAGANDA

Zeynep Tufekci has argued that big data and other associated tools have effects on the production of a consensus in the public sphere.54 The field of computational politics allows for changes in the way information is navigated and this is mainly affected by unequal relationships in which campaigns have more information on voters than on candidates and political parties. Opportunities for interacting individually with voters reduce the transparency and the public character of democratic procedures. By assigning scores to words that appear online, it is possible to generate estimations of ideological or sentimental analysis and begin to categorise people. ‘Likes’ on Facebook can help define a series of personal characteristics that are available, through data brokers, to whomever pays for this data. Platforms that work in an opaque way utilise algorithms that can emphasise some topics in prejudice of others. Harm to civic discourse, informational asymmetry and the absence of free deliberation of ideas are all political consequences of the misuse of big data. Connections between the authoritarian resurgence – at least from 2016 onwards – and the development of new technologies can be summarised in the way social media, algorithms, bots, AI and big data create echo chambers that strengthen our biases.55 Nonetheless, it is of fundamental importance not to overstate the importance of technology alone in prejudice of how contextual institutions deal with them. Taking this into account, Benkler, Faris and Roberts refer to the phrase ‘fake news’ as being used first by Craig Silverman 52 T Dias, ‘Com Canetada Escondida, Bolsonaro Asfixia Lei de Proteção de Dados em Meio à Pandemia’, The Intercept_Brasil, 30 April 2020, theintercept.com/2020/04/30/canetada-bolsonarolei-de-protecao-de-dados/. 53 Decree 10.046 of 2019, www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D10046.htm. 54 Z Tufekci, ‘Engineering the Public: Big Data, Surveillance and Computational Politics’ (2014) 19 First Monday 3. 55 Y Benkler, R Faris and H Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (New York, Oxford University Press, 2018) 4.

190  Digital Constitutionalism while reporting inaccurate election reports in the United States.56 It is also important to highlight, in such a context, the role of ‘clickbait fabricators’, that is, organisations which, for reasons of profit, distort Facebook’s algorithms to create ‘clickable’ ads that influence user behaviour and set aside traditional media. Facebook’s openness to disseminate through its news feed algorithms of echo chambers and the personalisation of news tends to be higher than on other platforms. The architecture of a system of fake news and disinformation in the United States cannot be evaluated without also including the shared role of rightist media outlets and their support of Donald Trump’s pivotal role on Twitter. In this case, what Fox News or The Daily Caller did to amplify the radicalisation process led by Breitbart, Truthfeed and others is hardly comparable to what has been taking place in Brazil.57 First of all, this is because Jair Bolsonaro is much less skilled in the use of Twitter, even with the help of his bureau of hate, than Trump. Second, the major media outlets in Brazil, even with their connections to rightist politics and the past dictatorship (the case of TV Globo), stood partially against Bolsonaro in the early days of his government. However, when what is at issue are neoliberal proposals, members of the government are defended as technocratic politicians. The exception is TV Record, owned by an evangelical priest who supported Bolsonaro for the presidency and became, with its conservative background, a significant line of support for the government.58 Notwithstanding TV Globo’s oppositional stance after Bolsonaro’s first months of government – and especially during the COVID-19 pandemic – it is remarkable that the giant media corporation, supported by conservative newspapers and magazines, helped to shape the hate discourse against the Workers’ Party’s years of government. Although there were several mistakes and instances of corruption, all accusations were frequently magnified. More than that, the politicisation of judicial activities throughout Operation Car Wash was always overemphasised. The same happened with the glorification of individuals, such as former Judge Sérgio Moro. The connection between digital-age innovations with the role of media corporations in the past two decades reveals some of the elements of the thesis that Benkler, Faris and Roberts argue is true for the United States: the digital age is important for the erosion of democracy, although it is not the unique factor. In this sense, instead of merely blaming new technologies, Benkler, Faris and Norris maintain that this factor is vital to changing the landscape of American politics inasmuch as other elements of an asymmetric partisan ecosystem are considered.59 And, in this case, the traditional association of the radicalisation of right-wing politics with prominent media outlets must be evaluated in 56 ibid, 9. 57 ibid, 14. 58 R Almeida, ‘Bolsonaro Presidente: Conservadorismo, Evangelismo e a Crise Brasileira’ (2019) 38 Novos Estudos CEBRAP 185. 59 Benkler, Faris and Roberts, Network Propaganda (2018) 21.

Politics and Network Propaganda   191 the landscape of institutional changes that have taken place in recent decades. Facebook algorithms cannot, by themselves, change public discourse. This also has consequences for Brazil. As can be seen elsewhere in this book, the military, judges, milícias, inequality and a neoliberal agenda are forming a broader context in the erosion of the 1988 constitutional project. So, to frame what has been happening recently in Brazil, one must consider how these new technologies have interacted in the spread of a conservative wave and shaping electoral decisions. One of the leading services provided by Facebook consists of microtargeted manipulations that shape behaviour. People are driven in their consumption desires, from their initial viewing of an advertisement to their final decision to click on a ‘buy’ button. If there is controversy over the legitimacy of these invasive manipulations in the market, the problem is even more significant when such activities are used to define voters’ decisions. The Cambridge Analytica scandal showed the range of possibilities social media can offer.60 In June 2016, when it looked likely that Donald Trump would lose the forthcoming presidential election, his team hired such people as Brad Parscale and Paul Manafort to lead an effort to buy ads on Facebook. It was the big data collected by Facebook that enabled nationwide microtargeting. This method had previously been used successfully in the Bush (2004) and Obama (2008 and 2012) campaigns. Nonetheless, Benkler, Faris and Roberts show that the role played by Facebook was more important than Cambridge Analytica’s widely publicised successful microtargeting tools.61 Facebook’s terms of service allow the company to do a lot more harm with its users’ data than what has, up to now, been known about social media’s potential role compared to traditional media’s capacity for predicting and shaping political decisions. In addition to this, Facebook facilitates the hosting of pages that exhibit extreme partisanship. Around 30 per cent of the American population consumes information disseminated by right-wing media.62 It is not only technological innovation, but also institutional and political factors that have contributed to shaping the current extreme versions of the Republican Party and its voters. The diagnosis presented by Benkler, Faris and Roberts follows the description by Levitsky and Ziblatt of an ongoing radicalisation that started in the 1970s by politicians such as Newt Gingrich.63 Still, the digital age provides diverse effects in different contexts, and no expert denies its role in the 2016 American elections.

60 See The Guardian, ‘The Cambridge Analytica Files’, www.theguardian.com/news/series/ cambridge-analytica-files. The company was founded by Robert Mercer and Steve Bannon. Bannon, who was jailed for fraud accusations, did not hide his support for Bolsonaro in Brazil. Eduardo Bolsonaro, the representative son of Jair, visited Bannon during his father’s campaign (E Bresciani, ‘Filho de Bolsonaro Diz que Marqueteiro de Trump Vai Ajudar Seu Pai’, Época, 9 August 2018, epoca.globo.com/filho-de-bolsonaro-diz-que-marqueteiro-de-trump-vai-ajudar-seu-pai-22963441). 61 Benkler, Faris and Roberts (n 55) 279. 62 ibid, 292. 63 S Levitsky and D Ziblatt, How Democracies Die (New York, Crown, 2018) 249.

192  Digital Constitutionalism IV.  FAKE NEWS, AUTHORITARIANISM AND POLITICAL CHOICES

In August 2019, The New York Times published an important piece in which it showed how the lives of Brazilian people have been shaped by YouTube. Matheus Dominguez, an ordinary citizen, had his political choices changed when he came across a video on the platform from Nando Moura. Actually, Dominguez did not find anything – YouTube found him through an AI system that watched his behaviour. Nando Moura is a YouTuber with 3.14 million followers who believed Nazism was a leftist movement and partially supported Bolsonaro.64 Of course, the young Matheus knew Bolsonaro from a recommended video in Nando Moura’s channel. Through Nando Moura’s videos, Matheus had his political choices altered, and started to support right-wing candidates such as Bolsonaro. The New York Times investigation showed that students challenge information presented by teachers by quoting conspiracy theories propagated on YouTube. Fighting diseases such as Zika or COVID-19, even on a scientific basis, has become even more problematic in Brazil as a result of this, as people armed with false information aggressively oppose health measures. YouTube’s response to the spread of misinformation is to say that it does not favour any political ideology. Of course, radical indifference, as already shown, is a pattern for the big tech companies. For a platform that earns more than US $1 billion a month, with 70 per cent of its videos using the AI engine that suggests only more provocative videos, it seems that something is lacking in its accountability. In research yet to be published, the Brazilian Federal University of Minas Gerais research team supervised by Professor Virgilio Almeida conducted tests to measure the relevance of YouTube in Brazilian politics.65 Fifty-five leftist and rightist channels were analysed using recommendations that included people on the left and right – in this case, for instance, Jair Bolsonaro and his supporters. They used the technologies’ linguistic inquiry word count (LWIC) and latent dirichlet allocation (LDA) to classify the channels from 2016, referring to the language used by those appearing in the videos. Amongst the 55 channels, 27 were rightists and grouped 7,100 videos with 1.4 billion views and 5.8 million commentaries. There were 18 leftist channels with 4,100 videos, 1.3 billion views and 400,000 commentaries. The data shows that the predominance of rightist politics in the YouTube Brazilian channels has only increased in the past few years. The advantages of the Internet are not so direct as it initially appeared. In 2008, Brundidge and Rice already identified that while the Internet has reduced

64 J Filho, ‘Quem São os YouTubers Recomendados por Jair Bolsonaro’, The Intercept_Brasil, 18 November 2018, theintercept.com/2018/11/17/youtubers-bolsonaro-nando-moura-diego-roxbernardo-kuster-fake-news. 65 UFMG, ‘Forte influência do YouTube na política brasileira é confirmada por pesquisa da UFMG’, UFMG, 2 September 2019, ufmg.br/comunicacao/assessoria-de-imprensa/release/forte-influenciado-youtube-na-politica-brasileira-e-confirmada-por-pesquisa-da-ufmg.

Fake News, Authoritarianism and Political Choices  193 the cost of information and provided the means for easy access to political decisions, there is a clear psychological impact generated by the use of data.66 One shall consider the ‘knowledge gap hypothesis’ by which individuals with more complex information schema deal better with new information. Information that is already rich gets richer and poor information remains poor. Simple exposure to news does not in itself make people more able to deal with complexity in political and civic subjects. Usually, people with a foundation of political knowledge will amplify their choices in search of higher-quality information. People with less developed cognitive schema are most easily shaped by the way elites and media vehicles frame the dissipated information. Although this scenario has been altered by both the overlap of entertainment and news outfits, and the expanded means of diffusion through the Internet, the process of framing not only generates different ways to access information, but a chaotic data set. It is in this scenario that the so-called ‘hypermedia political campaigns’ come to the surface to compete with major media and major political parties. This relies on new technologies, databases and networks to mine and collect data that promotes more diffusion of data with less citizenship engagement. In other words, the data available are of greater quantity and less quality. While political access to information can be fostered in the digital age, political learning and proper participation are dependent on a variety of other factors that limit their improvement. As a consequence, ‘The information rich continue to get richer’.67 To understand how online engagement affects political disagreement, we must consider two competing mechanisms: selective exposure and the weakening of social boundaries. Selective exposure theory predates the digital age: it presupposes that, at the same time as people gain control over communication, they will determine the partnerships and the way they are exposed to information. The Internet, in this case, would only increase the selective exposure. Individuals on the Internet tend to be exposed to information that accords with their viewpoints. Their exposure follows the mechanisms by which clicks and searches happen. Brundidge and Rice refer to Cass Sunstein’s conclusion that the Internet will provide more bonds instead of bridges, create enclave communication and polarise opinions. It would amplify political divides and foster the diffusion of fake news.68 Research results back in 2008 tended, however, to lower the effect of selective exposure. The political scenario in 2019 seemed to contradict it. Plus, the weakening social boundaries hypothesis seemed to be relevant, since the Internet would produce lower density networks and weak ties. Finally, and problematically, research has indicated that, as the separation between private and public evaporates and the number of information sources grows exponentially, political demagogues have greater opportunities to gain power. 66 J Brundidge and R Rice, ‘Political engagement online: Do the information rich get richer and the like-minded more similar?’ in A Chadwick and P Howard (eds), Routledge Handbook of Internet Politics (New York, Routledge, 2009) 146. 67 ibid, 149. 68 ibid, 151.

194  Digital Constitutionalism Social psychology can also help explain the spread of far-right theories, supported by the YouTube framework. Jonathan Haidt and Karen Stenner conducted a pivotal study of far-right populism through Stenner’s authoritarian dynamic, that is, the interactions people predisposed to authoritarianism may have with normative threats or situations of crises that increase the level of authoritarianism.69 In terms of political preferences, conservatives can be classified in three ways: the laissez-faire conservatives, the status quo conservatives and the authoritarians. There are no significant problems related to pluralism for laissez-faire conservatives; the complexity of contemporary society is not an issue for them. Authoritarians, however, aim at reducing complexity, diversity and difference. They share a demand for more security, both at the individual and the collective level. And, in this sense, new technologies, such as smartphones, simplify behaviours and worldviews in a complex contemporary worldworld.70 Authoritarians must rely upon the imposition of security through a specific authority (oneness) and share with other people the same values (sameness). These are the particular values hit by what Stenner depicts as normative threats.71 Stenner and Haidt checked for the growth of authoritarianism using an empirical research methodology that drew on Europulse (a large global omnibus survey platform) in the context of three different authoritarian political events: in the United States, with Trump’s election; in the United Kingdom, with the Brexit referendum; and in France, with the rise of Marine Le Pen. An initial stage of the research determined that authoritarians could be found in 29 European countries plus the United States, equivalent to an average of 30 per cent of interviewees. This number corresponds to what Stenner calls people with an ‘authoritarian predisposition’ in her authoritarian dynamic theory. The problem appears when such a predisposition grows in moments of ‘normative threat’. Those threats can take the shape of a loss of legitimacy of representative authorities or the failure of institutions to attend to their duties, for example. Instead of latency, there is prevalence of authoritarian dispositions. These findings indicate that there may be a chance of a shared authoritarian identity in Brazil. Of course, there are no fatalisms in this field – the recent social-democratic Brazilian governments are evidence of the capacity of curbing authoritarianism. Nonetheless, the search for social and public security is present in every society. The 1988 Constitution recognised these norms in Article 144, translating a common desire into the legislature. The enduring economic crisis that goes back to at least 2014, the deterioration of the quality of the political institutions, the high numbers of deaths due to violence and the hatred against leftist governments – all of these factors can be translated into normative threats 69 K Stenner and J Haidt, ‘Authoritarianism Is Not a Momentary Madness, But an Eternal Dynamic Within Liberal Democracies’ in C Sunstein (ed), Can It Happen Here? Authoritarianism in America (New York, HaperCollins, 2018) 259. 70 Byung-Chul Han, In the Swarm: Digital Prospects (Cambridge, MA, London, MIT Press, 2017) 22. 71 See also K Stenner, The Authoritarian Dynamic (Cambridge, Cambridge University Press, 2005).

WhatsApp, Elections and Misinformation  195 that serve to stimulate authoritarian predispositions that substitute legitimate demands for security.72 Add to this the desert of normative regulations in which digital platforms operate and one has the perfect storm for transforming the 20 or 25 per cent of the population who would be Bolsonaro supporters under normal circumstances into numbers capable of catapulting him to the presidency. V.  WHATSAPP, ELECTIONS AND MISINFORMATION

On the day of the first round of the Brazilian presidential election of 2018, a video produced by a company named Brasil Paralelo (Parallel Brazil) showed a prosecutor from the state of Santa Catarina stating that international studies would prove fraud in Brazilian electronic ballots at a rate of 73.14 per cent. Those studies were not presented, nor were their sources revealed. The video was viewed 1.6 million times on YouTube and was shared on WhatsApp groups.73 The Superior Electoral Court’s measures against digital misinformation were not sufficient. Then Chief Justice of the Court, Justice Rosa Weber, claimed in an interview that the tribunal was trying to understand the phenomena and that actions to prevent the sharing of fake news were not easy. A council of consultants was created during the election, involving representatives from the federal level, prosecutors and some civil society organisations. In May 2019, however, the Superior Electoral Court made the records of meetings confidential until 2023. And although the Court tried to control mass sharing, making agreements with the main social media big tech companies,74 candidates in the 2020 local elections still counted on companies to provide those services.75 Even if the Brazilian apex electoral court was not prepared to digitally influence the 2018 elections, platforms such as WhatsApp were. Fabrício Benevenuto, professor at the Brazilian Federal University of Minas Geraism, among several other experts, pointed out in the New York Times that the messages’ engine could have provided simple solutions.76 Forty-four per cent of Brazilians at the time used WhatsApp for consuming electoral and political news. Whereas Facebook 72 L Schwarcz, Sobre o Autoritarismo Brasileiro (São Paulo, Companhia das Letras, 2019). 73 J Gragnani, ‘Eleições 2018: o que o TSE está fazendo para combater mensagens falsas?’, BBC News Brasil, 11 October 2018, www.bbc.com/portuguese/brasil-45804824. 74 Justice Barroso, Chief Justice of the Superior Electoral Court between 2020 and 2022, made it public that the Court signed agreements with WhatsApp, Twitter, Facebook, Instagram, Google and TikTok to avoid fake profiles, the abusive use of bots and illegal mass sharing for the 2020 local elections. The Court also created measures for fact-checking, including a new tool in WhatsApp and a webpage (L Barroso, ‘Por Eleições Livres, Limpas e Seguras’, Folha de S Paulo, 25 October 2020, www1.folha.uol.com.br/opiniao/2020/10/por-eleicoes-livres-limpas-e-seguras.shtml. 75 P Mello, ‘Empresas burlam regras e mantêm disparos em massa de mensagens eleitorais’, Folha de S Paulo, 5 October 2015, www1.folha.uol.com.br/poder/2020/10/empresas-burlam-regras-e-mantemdisparos-em-massa-de-mensagens-eleitorais.shtml. 76 C Tardáguila, F Benevenuto and P Ortellado, ‘Fake News Is Poisoning Brazilian Politics. WhatsApp Can Stop It’, NY Times, 17 October 2018, www.nytimes.com/2018/10/17/opinion/brazilelection-fake-news-whatsapp.html.

196  Digital Constitutionalism and Google had become entangled in campaigns to avoid the spread of misinformation, the same did not happen to the encrypted mechanism of WhatsApp, which allowed for chat groups of up to 256 people. Pyramid and network strategies were used by those who created misinformation, which was then spread to public groups. Of a databank of 100,000 photos, the group of researchers found that at least 56 per cent were misleading. They then suggested that WhatsApp could limit message-forwarding, broadcasts and the size of new groups. Under the 2020 rules, messages can be forwarded in WhatsApp to no more than five addressees. Forwarded messages received via WhatsApp can be delivered again only once, a limit that the company imposed in the same year. As in India and Germany, WhatsApp is very popular in Brazil, with 120 million users. Its capacity for sharing messages is still huge, especially considering the limit of 256 users in a group and the fact such groups can be widely publicised. And, a person can be in more than one group, creating a network for viral messages. After the founding of a WhatsApp monitor at the Federal University of Minas Gerais,77 and analysing events such as the truck drivers’ strike and the presidential campaign in 2018, a group of researchers gathered significant data on sharing misinformation within politically minded WhatsApp groups. Although Twitter and Facebook are essential tools for political propaganda, WhatsApp plays a vital role in underdeveloped countries: communications are low-cost; and they can be decontextualised and used to target specific groups.78 From the 141 groups analysed during the truck drivers’ strike and 364 in the electoral campaign, images were the main media shared and the pivotal source of misinformation. Groups such as #BOLSONAROPRESIDENTE shared the highest number of images (4,320) and also had the highest number of users that prefer to share pictures. The presence of the same users in diverse groups confirmed the existence of connected groups. Connected groups demonstrate that end-to-end cryptography does not prevent network configuration, a feature that enables WhatsApp to challenge Facebook and Twitter in its capacity to produce viral information. The data analysed in the study showed that images containing misinformation are shared in WhatsApp groups at a faster pace than on the Internet.79 Still, texts remain the dominant form of content shared via WhatsApp, a fact that led the Federal University of Minas Gerais and IBM researchers to expand the analysis.80 Tracking shared political texts during the 2018 electoral campaign and observing the results of the work of fact-checking agencies, the 77 See www.monitor-de-whatsapp.dcc.ufmg.br; P Melo et al, ‘WhatsApp Monitor: A Fact-Checking System for WhatsApp’ [2019] Proceedings of the 13th International Conference on Web and Social Media, ICWSM 2019, 676. The monitor covers Brazil, India and Indonesia. 78 G Resende et al, ‘(Mis)Information Dissemination in WhatsApp: Gathering, Analyzing and Countermeasures’ (2019) 2 The Web Conference 2019 – Proceedings of the World Wide Web Conference, WWW 2019 819. 79 ibid, 828. 80 ibid, 225.

Controlling Fake News in Brazil  197 team came to some crucial conclusions. First, messages with misinformation tend to contain fewer words, which can facilitate spreading and reading by users. Second, those messages are concentrated on fewer topics, which demonstrates the presence of a cognitive process that uses words like ‘attention’ or ‘warning’ to capture the reader. This kind of message is shared 40 per cent more than others and is usually part of a chain. Third, messages with misinformation propagate faster inside WhatsApp groups, but remain within their boundaries, inhibiting confrontation and strengthening bubbles. All in all, the way WhatsApp works and its end-to-end cryptography defies the possibility of regulation in the process of spreading misinformation. Moreover, it encourages users to assume that they are adopting conscious political positions when their views are only based on misinformation. The question that is aggravated in the case of WhatsApp, but it is a common feature of the digital era, is the misleading process of the political formation of a not-so-sovereign will. Constitutional norms that aim at securing autonomous political processes will become ineffective in the face of who can pay more to become viral. VI.  CONTROLLING FAKE NEWS IN BRAZIL

In May 2020, a bill was filed in the Brazilian Federal Senate to create a Liberty, Accountability and Transparency on the Internet Act. On 30 June 2020, the bill had been approved in the high chamber and sent for deliberation in the Chamber of Deputies.81 The hurry to further the project during the COVID-19 pandemic seemed to be due both to the 2020 local elections and to the fake news inquiry taking place before the Federal Supreme Court. At the same time, one must consider the content of the Proposal on Constitutional Amendment 17 of 2019, approved by the Federal Senate and pending in the Chamber of Deputies, which inserts into the 1988 Constitution bill of rights, the protection of personal data, including on digital media. The proposal also extends the legislative competences of the union to legislate on protection and treatment of personal data.82 The bill on Liberty, Accountability and Transparency on the Internet sparked debates on its suitability and capacity to control the spread of disinformation online. The bill aimed to secure freedom of expression and communication within social media and private messaging services. The objectives are related to strengthening the democratic process, freedom of expression and transparency. The bill has provisions to regulate the use of bots and botnets. Messaging services shall limit the number of forwarded messages, the number of members in a group and the require the consent of users to be included in groups and transmission lines. App service providers shall develop processes for dealing with user complaints.

81 See www.camara.leg.br/proposicoesWeb/prop_mostrarintegra?codteor=1929201&filename= Tramitacao-PL+2630/2020. 82 See PEC 17 of 2019, www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2210757.

198  Digital Constitutionalism Activities that boost publications and advertising will present data on the account that provides those services. In the case of electoral propaganda, social media services shall inform the public how much the advert cost, who owns the content and the time of transmission. Accounts owned by state members, of all branches and federal levels, are of public interest and cannot restrict the access of other accounts, and shall provide all financial information on publicity purchased. The state shall not finance websites and social media accounts that promote violence against the fundamental rights of people or groups. A Counsel on Transparency and Responsibility on the Internet shall be created and include civil society members. However, the bill also demands autoregulation by companies and accountability from prosecutors and judges. Criticisms of the proposal may have helped halt the legislative procedure to make improvements. Its concept of disinformation did not mention any political and economic advantages to its sharing, or the risks it presents to democracy. It also fails to differentiate between misinformation and wrong information accidentally shared or based on mistakes. Also, placing pressure on the app providers instead of competent authorities to verify information and compliance with the law can create hurdles in the fact-checking process.83 Brazilian scholars have argued in favour of proposals such as ‘regulated autoregulation’. This involves the conciliation of auto-organisation inside the ever-shifting parameters of the digital industry and public interests that are important to the state.84 Although there is some reason in prompting forms of autoregulation, the shape of surveillance capitalism shows that the state – even if it currently relies on ill-prepared judges – must have a protagonist role. The idea of counsels integrating policymakers and civil society members seems more promising. It also is important to recognise that some initiatives from the companies can influence changes in politics. Back in 2018, Twitter already forbade paid electoral propaganda. In 2020, Facebook and Twitter halted Trump’s false claims on COVID-19 and the legitimacy of the presidential election results. Facebook and Instagram also removed videos shared by Bolsonaro that could weaken social distancing measures during the pandemic. It is not the aim of this chapter to provide particular answers to the challenges digital constitutionalism now presents to democracy and constitutionalism. One must bear in mind, however, that fake news, bots, botnets and other new technologies play a fundamental role in disrupting the social core necessary to democratic constitutionalism. The answers to this will not come from the very surveillance capitalists who created the problem.

83 Centro de Pesquisa e Inovação, Nota Técnica: Lei Brasileira de Liberdade, Responsabilidade e Transparência na Internet (PL nº 2.927/2020 e PL nº 2.630/2020), FGV Direito SP, direitosp.fgv.br/ sites/direitosp.fgv.br/files/arquivos/nota_tecnica_-_pl_desinformacao.pdf. 84 J Maranhão and R Campos, ‘Fake News e Autorregulação Regulada das Redes Sociais no Brasil: Fundamentos Constitucionais’ in G Abboud, N Nery Jr and R Campos (eds), Fake News e Regulação (São Paulo, Thomson Reuters Brasil, 2020) 10.441.

8 Constitutional Resilience against Erosion Responses Provided for by the 1988 Constitution

T

his chapter reviews the resilience of Brazilian 1988 constitutionalism. Constitutional resilience shall be defined by considering both the functions and the definition of constitutional culture.1 As this book sets out in its introduction, the idea of constitutional identity is crucial. That means that not only did the basis of liberal constitutionalism matter, but also the features of what has been called social democratic constitutionalism. Crises and erosion pose a threat to a constitutional order’s health and must be tackled with from within. The 1988 Constitution has proved its ability to navigate through different storms and even through a continuous amendment process. Its main structure stands despite the damages inflicted by Constitutional Amendment 95.2 Constitutional resilience does not depend solely on design. Constitutional design is an essential feature of any constitutional democracy, but, as already mentioned, democratic politics is fuelled by the constitutional devices to which they are connected. Civil society, free media and constitutionally bounded digital activism can all cooperate in controlling autocracy and populism.3 The main idea sustained in this chapter is that the 1988 Constitution provides institutional and design devices that not only protect it from abuse, but also offer answers for the future. In other words, it is not a substitution matter: it is a problem of practices and policymaking. Measures that are already in place will serve as examples. The chapter starts with the clarification of coalitional

1 X Contiades and A Fotiadou, ‘On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?’ (2015) 9 ICL Journal 30. 2 O Vieira and A Barbosa, ‘Do Compromisso Maximizador à Resiliência Constitucional’ (2018) 37 Revista Novos Estudos CEBRAP 387. For a strong criticism and even a defence of only a formal force of the 1988 Constitution, especially after 2016, see E Bello, G Bercovici and M Lima, ‘O Fim das Ilusões Constitucionais de 1988?’ (2019) 10 Revista Direito e Práxis 1769. 3 S Choudhry, ‘Constitutional Resilience to Populism: Four Theses’, Verfassungsblog, 11 December 2018, verfassungsblog.de/constitutional-resilience-to-populism-four-theses.

200  Constitutional Resilience against Erosion presidentialism, the distortions it allows for, and the democratic practices it can engender. A debate on the suitability of impeachment processes in constitutional presidential systems is the second topic, as seen through an examination of the 2016 impeachment process. The third topic analyses the different ways by which Bolsonaro fuelled constitutional erosion by capturing state institutions and attacking the media. The fourth topic is a selection of the reactions the National Congress had against Bolsonaro’s attempts to unconstitutionally increase the powers of the executive. A debate on federalism will show that governors also presented a challenge to Brazilian authoritarianism. The next topic considers how the Federal Supreme Court can contribute to curbing President Bolsonaro’s worst intentions. As demonstrated in chapter two, the 1988 Constitution endorsed a conception of democracy that goes far beyond the traditionally narrow idea of liberal democracy. Its social pedigree is so strong that critics of the 1988 Constitution sometimes argue for a constitutional substitution specifically opposing the distributive backbone. Bolsonaro’s minister of economy, a Chicago School follower, declared that the 30 years of social democracy the country had enjoyed are over.4 Bolsonaro’s vice-president, General Hamilton Mourão, supported the creation of a constitutional commission to develop a new constitution during the 2018 presidential electoral campaign, claiming that the 1988 Constitution is too comprehensive.5 As soon as he reached power, Bolsonaro asserted the authoritarian DNA that had manifested itself throughout his life and political career. His initial policies included, for example, softer requirements for gun possession for all citizens. There was a slashing of funding for public federal universities by 30 per cent, motivated supposedly by partisan demonstrations on campuses.6 The exclusion of criminal liability for farmers who shoot ‘intruders’ was debated. The celebration of the 1964 coup was recovered in an attempt to promote revisionist interpretations of the dictatorial past.7 Those actions have paved the 4 A Fernandes, J Fucs and R Agostini, ‘Os Políticos Têm de Controlar 100% do Orçamento’, O Estado de S. Paulo, 10 March 2019, economia.estadao.com.br/noticias/geral,os-politicos-temde-controlar-100-do-orcamento,70002749472. 5 E Carazzai and R Vizeu, ‘Vice de Bolsonaro defende nova Constituição sem Constituinte’, Folha de S Paulo, 13 September 2018, www1.folha.uol.com.br/poder/2018/09/vice-de-bolsonarodefende-nova-constituicao-sem-constituinte.shtml. 6 D Jeantet, ‘Brazil plans to slash funding of universities by 30 percent’, AP News, 1 May 2019, apnews.com/45c37c7b100048f0819571ca60e866ef. The current war on Brazilian public universities by Bolsonaro is reminiscent of anti-intellectualist fascist politics, an ideology whose warriors are enumerated by Stanley (J Stanley, How Fascism Works: The Politics of Us and Them (New York, Random House, 2018) 70) as such: David Horowitz in the US; the battle on ‘cultural Marxism’ (the same enemy appointed by Bolsonaro’s supporters, such as his former foreign minister, Ernesto Araújo); Russian President Putin’s shutdown of the European University in St Petersburg and his opposition to gender studies; and Hungary’s Orbán’s persecution of the Central European University, which has led to the migration of its campus to Austria. 7 E Meyer and J Benvindo, ‘Bolsonaro’s Unconstitutional Support for the Brazilian CivilMilitary Dictatorship of 1964–1985’, 2019, I-CONnect Blog, www.iconnectblog.com/2019/04/ bolsonaros-unconstitutional-support-for-the-brazilian-civil-military-dictatorship-of-1964-1985.

Constitutional Resilience against Erosion  201 way for the erosion of the 1988 Constitution and the social-democratic constitutionalism created by it. Analysts have divided political support for Bolsonaro’s Government into ideological and military sources.8 Ideological sources include people influenced by a Brazilian astrologist based in the United States. This source would dispute the direction of public policies. Conservatives support the Government selectively and by considering its concrete proposals. For instance, Brazilian evangelicals play a vital role in Bolsonaro’s support base but cannot be simply and generally associated with far-right movements. On the other hand, the military helps lend institutional and ‘technical’ legitimacy to those in political power. However, all factions share the same right-wing and conservative ideas: the military do not oppose radical opinions of the so-called ideological source. Additionally, technical legitimacy vanished after the incompetency demonstrated in fighting COVID-19 pandemic. Bolsonaro’s actions are based on fierce and unnecessary political disputes. Such confusion is seen as a way of governing, given that Bolsonaro is responsible for deconstructing public policies and enhancing a neoliberal government without clearly recognising it and avoiding the risk of losing popular support.9 President Bolsonaro created political crises of his own. Nonetheless, the COVID-19 pandemic threw President Bolsonaro into a deeper one, at least in the first half of 2020. He doubted the effects of the disease and its infectious capacity, and appointed no fewer than four health ministers during the pandemic – the one who stayed in post the longest being a military officer. Bolsonaro refused to disclose his positive COVID-19 test results even though his whole team was infected. He later declared he had the disease without further evidence, probably with the aim of trying to prove that COVID-19 was just a flu. Bolsonaro invested millions in the production by the military of hydroxychloroquine without any scientific basis of its effectiveness against COVID-19, went out to the streets, thereby encouraging crowds to form, and supported public uprisings against constitutional institutions. When asked about those who had died of the virus, he answered ‘So what?’.10 His attitude led analysts to consider if he had committed crimes against humanity in the extermination and genocide of indigenous people.11 8 I Gielow, ‘Bolsonaro se Recusa a Enquadrar Filho, Que Reabre Crise com Mourão’, Folha de S Paulo, 23 April 2019, www1.folha.uol.com.br/poder/2019/04/bolsonaro-se-recusa-a-enquadrarfilho-que-reabre-crise-com-mourao.shtml. 9 M Nobre, ‘O Caos Como Método’, Piauí, April 2019, piaui.folha.uol.com.br/materia/o-caoscomo-metodo/. 10 T Phillips, ‘“So what?”: Bolsonaro shrugs off Brazil’s rising coronavirus death toll’, The Guardian, 29 April 2020, www.theguardian.com/world/2020/apr/29/so-what-bolsonaro-shrugs-offbrazil-rising-coronavirus-death-toll. 11 See the Brazilian jurist Deisy Ventura interview at E Brum, ‘“Há indícios significativos para que autoridades brasileiras, entre elas o presidente, sejam investigadas por genocídio”’, El País, 22 July 2020, brasil.elpais.com/brasil/2020-07-22/ha-indicios-significativos-para-que-autoridadesbrasileiras-entre-elas-o-presidente-sejam-investigadas-por-genocidio.html.

202  Constitutional Resilience against Erosion In light of these (and other) actions, why has Bolsonaro not yet been impeached? In April 2021, there were around 100 impeachment requests in the presidency Chamber of Deputies.12 The impeachable offences involved the coronavirus measures, demonstrations against institutions, violations of presidential decorum, corruption, attacks on the press, and others. It is the duty of the Speaker of the Chamber of Deputies to check the requests and start the procedures so the house can authorise impeachment; a two-thirds majority is required. One of the reasons that impeachment initiatives against Bolsonaro have failed, at least so far, is that, generally, the majority of the members of the legislature, who elect the Speaker, agree with the neoliberal measures governments have maintained in Brazil over the past 30 years. Only a threat to his political survival made Bolsonaro comply with the political rules of Brazilian constitutionalism. After a series of attacks against the other branches and state governors, the arrest of a former aide and previous milícia member made Bolsonaro soften his attitudes. He started to follow the general route for presidential success in Brazil: coalitional presidentialism, a system he had severely criticised in the past (discussed further below). This modified behaviour was accomplished, however, with changes made by congressmen and not by the president. In 2020, Constitutional Amendment 100 altered the way representatives influenced the final result of budgetary laws, increasing their power. The changes in the system gave Bolsonaro an even more populist appeal during the COVID-19 pandemic; as Benvindo predicted, he outshined other parliamentary representatives.13 Before he could attempt to deepen attacks on Brazilian democracy, corruption scandals limited his behaviour. Interestingly, his popularity grew amidst the concession of social benefits that had its values defined by the very same National Congress. Through a combination of disastrous administration, political opportunity and congressional support, Bolsonaro stays in office – at a high cost for the 1988 Constitution.

12 For a database of the requests, see apublica.org/impeachment-bolsonaro. 13 J Benvindo. ‘The New Presidential Regime in Brazil: Constitutional Dismemberment and the Prospects of a Crisis’, I-CONnect Blog, www.iconnectblog.com/2020/03/the-new-presidentialregime-in-brazil-constitutional-dismemberment-and-the-prospects-of-a-crisis/#_edn19. Benvindo recollects Juan Linz’s critique in the sense that presidentialism could attain a dangerous plebiscitarian form (see J Linz and A Valenzuela, The Failure of Presidential Democracy (Baltimore, John Hopkins University Press, 1994). Interestingly, the same warning was made by a Brazilian conservative politician and constitutional law scholar, Afonso Arinos, against presidents that were representatives of a plebiscitarian Caesarism. His declaration was made in a speech delivered to the National Congress in hurrying to approve the amendment to the 1946 Constitution that transformed the regime into a parliamentary one. That was the condition the armed forces imposed on João Goulart before ‘authorising’ him to take office in the place of Jânio Quadros, who had resigned (see ch 1; and see S Abranches, Presidencialismo de Coalizão: Raízes e Evolução Do Modelo Político Brasileiro (São Paulo, Companhia das Letras, 2018) 56).

Coalitional Presidentialism and its Misuse  203 I.  COALITIONAL PRESIDENTIALISM AND ITS MISUSE

Coalitional presidentialism was first conceived by the political scientist Sérgio Abranches in the 1980s.14 He sought to explain how pluralist Brazilian society was reflected in its institutions in a coalition of parties that sustained a strong executive by positioning themselves inside the ministries and other areas of the administration. The executive therefore had to calculate the influence of both the political parties and regional power. This was not, however, a system free from conflict: there have been instances of confrontations between presidents and political parties aiming at grabbing more power. In the United States, the arbitrational role for such conflicts would be bestowed on the Supreme Court. In 1946 and 1988 in Brazil, however, there was no such arbiter, which led some scholars to resurrect the moderating power and confer it upon the military or the courts (see chapter six).15 Thirty years after his seminal work, Abranches affirmed that the problem was not with the coalitional presidential system itself, but with the abuses perpetrated supposedly on the basis of the model, such as corruption and clientelism.16 The system was conceived in a raw form in the 1891 Constitution, to be developed in the 1946 Constitution. Presidents should rely on an agreement with a multi-party coalition. João Goulart, deposed by the 1964 coup, did not do so. In 1988, coalitional presidentialism had its executive side reinforced through interference in the legislative agenda and budgetary matters. Ministries play a fundamental role in allocating expenditure within the executive budget. Senators and deputies can amend the executive proposal (with increased power since the Constitutional Amendment 100 of 2020) and they do it by considering their electoral basis in the states. Therefore, they expect to occupy or nominate people for office at different levels of the executive branch. As the coalition is situational and does not provide enduring support for an electoral programme, the president must understand how to act politically. The problem is that distortions (via corruption) can take place.17 The president’s ability lies in avoiding them and not falling prey to a game that tends to rely on unethical rules. The fragmentation of political parties creates severe obstacles for the president to gain parliamentary support. The presence of a political party, the MDB (Movimento Democrático Brasileiro, the Brazilian Democratic Movement) 14 See S Abranches, ‘Presidencialismo de coalizão: o dilema institucional brasileiro’ (1988) 31 Revista de Ciências Sociais 4; see also J Cheibub and F Limongi, ‘Legislative-Executive Relations’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Edgar Publishing, 2011) 222. 15 Abranches (ibid) 31. 16 Abranches, Presidencialismo de Coalizão (2018) 9. In the transition, specially between 1979 and 1994, Mainwaring (S Mainwaring, Rethinking Party Systems in the Third Wave of Democratization: The Case of Brazil (Stanford, Stanford University Press, 1999) 177) observed that clientelism, patrimonialism, nepotism and corruption fostered the elitist character of the Brazilian political regime, as also weakened the public sector. 17 Abranches (n 13) 88.

204  Constitutional Resilience against Erosion creates further hurdles. If, during the dictatorial period of the 1990s, the MDB encompassed all progressive forces that could oppose the regime, the permission for the multi-party system’s return ensured that the MDB could represent not social movements, but Brazil’s political elite. That is something that can be seen by its role in the centrão (wide centre bloc) during the Constituent Assembly of 1987–1988, which was a way of preventing the social and popular forces that appeared in the moment of constitutional design from leading all the deliberations. Following the presidency of José Sarney, the MDB developed a physiological performance that was thought could help them get into office. In other words, instead of guiding politics by the public interest, political deals were the results of bargains in exchange for economic profit that, in several cases, led to corruption. This way of conducting politics became dominant. The MDB was always the force that supported or exercised the executive branch:18 it did so with FHC (1994–2002), Lula (2002–2010, but especially after 2005, when the Mensalão scandal was brought to light) and Dilma Rousseff (2010–2016). Michel Temer of the MDB was Rousseff’s vice-president for two terms and, ultimately, supported her impeachment. With Temer (2016–2017), the MDB was at the head of the executive branch, putting into action a right-wing austerity programme quite different from the one voters had chosen when they elected the Workers’ Party in 2014.19 II.  THE CONSTANT THREAT OF IMPEACHMENT

The design of the Brazilian impeachment process was influenced, as in other Latin American countries, by the structure of the 1787 United States Constitution.20 Impeachment first appeared in Brazil with the 1891 Constitution. An act from 1950 regulated the impeachment under the 1946 Constitution.21 The Federal

18 The political party changed its name to Partido do Movimento Democrático Brasileiro (Brazilian Democratic Movement Party) after the 1988 Constitution, reverting to the original one in 2016. 19 See M Nobre, Imobilismo em Movimento: da Abertura Democrática ao Governo Dilma (São Paulo, Companhia das Letras, 2013). 20 As to the period before the 1787 US Constitution, historians refer to Edward III’s reign (1312– 1377) as one of the first occasions in which the impeachment process was used in the formation of the English parliamentary system. In 1376, the so-called ‘Good Parliament’ elected the new office of speaker, which was first exercised by someone who doubted the trust of the King’s aides and invented the process of impeachment (R Tombs, The English and Their History (New York, Alfred A Knopf, 2015) 120). Loughlin excavates a juridical origin for the impeachment process based on the accusations against the King’s ministers: the judiciary demanded that, if the King could do no wrong, his aides should act lawfully (M Loughlin, Foundations of Public Law (Oxford, Oxford University Press, 2010) 256). And although the King could block judicial procedures, his hands were tied from acting against parliamentary activity. Impeachment would, thereafter, become a mechanism to be substituted by the more pragmatic measure of a vote of non-confidence (M Loughlin, Foundations of Public Law (Oxford, Oxford University Press, 2010) 257). 21 Law 1.079 of 1950, www.planalto.gov.br/ccivil_03/leis/l1079.htm.

The Constant Threat of Impeachment  205 Supreme Court considered that the act can be generally interpreted in accordance with the 1988 Constitution. Any citizen can make an accusation at the Chamber of Deputies regarding an impeachable offence committed by the president. The Speaker of the lower house defines when to start the procedures of impeachment, and a committee will be nominated to assure due process of law. The Chamber of Deputies must allow the impeachment procedure for a majority of two-thirds of its members. If it does so, the Federal Senate receives the procedure and must, according to the Federal Supreme Court, decide if the impeachment shall continue.22 If the accusation is accepted, the president is suspended from office for 180 days. The impeachment procedure in the Federal Senate is presided over by the Federal Supreme Court Chief Justice. The upper house must render a decision in favour of the condemnation for impeachable offences by a two-thirds majority of its members. The sanctions are described by the provisions of the 1988 Constitution as being connected to each other: the president is removed and subject to an eight-year suspension from taking public office. From 1988 onwards, Brazil faced two impeachment processes. The first one was against Fernando Collor. Political support for former President Collor was weak. His government was severely destabilised when his brother gave an interview to a magazine accusing him of being involved in a corruption scheme managed by the treasurer of his electoral campaign. An investigative parliamentary committee was formed and the collected evidence was inserted into the impeachment proceedings. The treasurer had used presidential influence to receive advantages that, through fictious beneficiaries, could ultimately reach Collor’s bank account. The president’s properties were refurbished, a vehicle was allegedly bought, and money diverted to his close relatives. The president also supposedly lied when he delivered a speech in which he affirmed that all his expenses were paid with his own finances. The committee that provides an opinion for the Chamber of Deputies to authorise Collor’s impeachment was presided over by a future Federal Supreme Court Justice. He declared, at the time, that the lower house should make an admissibility trial that was both juridical and political. The normative provisional basis for the indictment should be presented, although the Chamber of Deputies could politically decide not to authorise the Federal Senate to sue and try the president.23 Collor resigned from office immediately before the Federal Senate started the last session of his trial. The legislators decided that they should go on and decide if he should be forbidden from holding public offices for eight years – a sanction (as already mentioned) tied to the removal from the presidential office. The Senate eventually applied the sanction against Collor, 22 Brazil, STF, ADPF 378, judgment of 16 March 2016, portal.stf.jus.br/processos/downloadPeca. asp?id=310056239&ext=.pdf. 23 Abranches (n 13) 130. Nonetheless, Abranches advocates that the impeachment process is predominantly political, even if constrained by ‘juridical formalities’.

206  Constitutional Resilience against Erosion even though he was no longer president. The Federal Supreme Court upheld the Senate’s decision.24 The accusations against ex-President Collor were controversial – made more so by the fact that he was convicted for allowing the violation of public laws and the decorum of the office, two sanctions subject to various interpretations.25 The political climate and the absence of popular support were particularly important in buttresses the accusations and allowing condemnation. Ironically, the Worker’s Party, a political minority in the National Congress at the time, fought bravely for his impeachment. The accusations against Collor proved to be not robust when the Federal Supreme Court acquitted him in diverse criminal lawsuits after he had left office. The second impeachment process was against Dilma Rousseff. In 2016, popular uprisings were large in size but restricted to specific subgroups – usually the middle and upper classes. There was an evident struggle between the executive and legislative branches from the start of Dilma Rousseff’s second term in 2015. The way the National Congress echoed the street protests cannot be fully comprehended without understanding how Brazilian media outlets covered the protests, or without considering the organisation of the media in Brazil. The same coalition (primarily integrated by the MDB) that supported Dilma Rousseff changed its position during the impeachment process, moving from an initial refusal to cooperate with her to direct opposition.26 Vice-President Michel Temer deliberately targeted Rousseff with the support of the Chamber of Deputies speaker, Eduardo Cunha. Notably, both Temer and Cunha were cited in plea bargains and investigations into Operation Car Wash during the impeachment process.27 The crimes of which Rousseff was accused, and which would end her presidential term, had two main elements.28 The first related to modifications in the budget that could violate constitutional and statutory norms. Specifically, that she issued presidential decrees in 2015 to open supplementary budget funding beyond the debt limit ceiling defined in the Annual Budgetary Act of 2015,29 which was established as the primary surplus target. The core accusation, as defined by the Senate Final Report in the impeachment procedure, related to the enactment of four presidential decrees that went beyond the debt ceiling

24 V Silva, The Constitution of Brazil: A Contextual Analyses (Oxford, Hart Publishing, 2019) 60. 25 Law 1.079 of 1950, Arts 8(7) and 9(7) (Senate Resolution 101 of 1992, www2.camara.leg.br/ legin/fed/ressen/1992/resolucao-101-30-dezembro-1992-480215-publicacaooriginal-1-pl.html). 26 See J Watts, ‘Brazil President Closer to Impeachment as Coalitional Partner Quits’, The Guardian, 29 March 2016, www.theguardian.com/world/2016/mar/29/brazil-president-dilmarousseff-closer-impeachment-coalitional-partner-quits. 27 Cunha was also cited in the Panama Papers. See ‘The Power Players’, International Consortium of Investigative Journalists, www.icij.org/investigations/panama-papers/the-power-players. 28 See T Bustamante, Democracy and the Rule of Law When Dialogue Is No Longer Possible: Is Brazil’s 2016 Impeachment Process a Coup? (unpublished manuscript, on file with the author) 16. 29 Law 12.952 of 2014, www.planalto.gov.br/ccivil_03/_Ato2011-2014/2014/Lei/L12952.htm.

The Constant Threat of Impeachment  207 stipulated in the Annual Budgetary Act. As Bustamante argues, this accusation is extremely controversial: the Annual Budgetary Act explicitly authorised supplementations.30 When Rousseff’s Government realised the impossibility of following the debt ceiling, it sent a bill to the National Congress to raise it and the legislature approved it, changing the limit of debts from a primary surplus target to a primary deficit target.31 Additionally, supplementary decrees are always issued at the same time that other expenses are cancelled. Notably, the Senate Final Report ignored the new statute and stated that the National Congress could not validate a crime of responsibility or an impeachable offence. The second element concerned borrowing assets from a union bank, Bank of Brazil (Banco do Brasil), in order to provide money for a rural social programme, the Safra Plan (Plano Safra). The Bank of Brazil could finance rural producers and their cooperatives using a variety of economic grants. The accusation argued that the operations were causing fiscal instability, so that public banks would be deprived of their alleged credits. The defence argued that there was no payment deadline in the statute that regulated the rural social programme and that the Brazilian Federal Audit Court (Tribunal de Contas da União) had validated the processes as far back as 15 years previously. The unusual change in the case law only came in 2015 and had Rousseff’s Government as its target. That indictment is highly unusual, since the statute that defines the impeachable offences forbids credit operations between the union and the states, including their agencies, but not between the union and its banks. Finally, the case would not be an actual credit operation. All of these charges have generated a great degree of controversy in Brazil among lawyers, academics and other legal professionals, mirroring the social dissent in society, both in favour of and against the impeachment process. During the session in which the Chamber of Deputies referred the impeachment process to the Federal Senate, representatives were able to make brief considerations. Among these, there was substantial hate speech against the president. None of the speeches of the congressmen, however, provided justifications for the accusations.32 These speeches showed that there was an absence of adequate treatment of constitutional institutions and processes. In other words, there was no concern that the impeachment was being misused as a vote of non-confidence, blurring the distinctions between law and politics and between presidential and parliamentary systems. When the Federal Senate started to prosecute Dilma Rousseff, legal contours began to substitute

30 Bustamante, Democracy and the Rule of Law When Dialogue Is No Longer Possible (n 28) 16. 31 Law 13.242 of 2015, www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13242.htm. 32 See The Economist, ‘Dilma, Out!’, The Economist, 23 April 2016, www.economist.com/news/ americas/21697284-few-pro-impeachment-congressmen-cited-specific-charges-dilma-out?fsr c=scn%2Ftw%2Fte%2Fpe%2Fed%2Fdilmaout. Jair Bolsonaro dedicated his vote to Dilma Rousseff’s former torturer, Carlos Alberto Brilhante Ustra, who was condemned in a civil lawsuit for perpetrating torture.

208  Constitutional Resilience against Erosion the realpolitik motives of the members of the Chamber of Deputies. Still, the lack of flagrant acts that could meet the terms of the articles of impeachment became clearer when Rousseff was condemned without being subject to the provisions of the 1988 Constitution. She was not subjected to an eight-year suspension from holding public office – contrary to what happened to Fernando Collor. Several senators stated immediately that her conduct was not too bad. All of these faults took place under the supervision of the Federal Supreme Court Chief Justice. Using impeachment as a way of controlling state power is not new to Latin America. As Pérez-Liñan showed, impeachment processes have been coopted as substitutive tools for the ancient military coups. The author argues that a legislative coup should combine unconstitutional measures from the legislative branch, supported by military actors.33 New contexts that could not allow the armed forces to act in daylight would encourage other actors to support Parliament in its desire to seize power. From 1992 to 2015, several presidents were indicted in impeachment processes.34 In those cases, one can see that other complicated realpolitik factors may have stimulated the misuse of the impeachment process not in favour of constitutional norms but, rather, in favour of strategically hidden political interests. This would set aside the distinction between the presidential and parliamentary systems, making constitutional instability the rule, with a kind of political recall always available.35 One solution would be for the judicial branch to act vigorously through judicial review at the start of the proceeedings, so that the impeachment process could go on, interpreting its clauses in such a way as to preserve constitutional stability. One cannot forget, however, that constitutional instability can be strategically used only for political aims and, thus, harming the stability that should be part of the presidential systems. If constitutions aim to build a regime that must endure, even against temporary majority decisions, a clear definition of what constitutes impeachable conduct must be formulated. The literature of

33 A Pérez-Liñán, Presidential Impeachment and the New Political Instability in Latin America (Cambridge, Cambridge University Press, 2018) 68. 34 Collor, in Brazil, in 1992; Perez, in Venezuela, in 1993; Samper, in Colombia, in 1996; Bucaram, in Ecuador, in 1997; Cubas Grau, in Paraguay, in 1999; González Macchi, in Paraguay, in 2002; Lozada, in Bolivia, in 2003; Mesa, in Bolivia, in 2005; Lugo, in Paraguay, in 2012; Molina, in Guatemala, in 2015. In the middle of crisis, Fujimori, in Peru, in 2000, and De la Rua, in Argentina, in 2001, resigned. Pérez-Liñán, Presidential Impeachment (2018) 189. 35 Pérez-Liñan declared that in Brazil, the MDB freed the genius from the ‘constitutional lamp’, allowing any executive branch chief (in the union, the states and the municipalities) to face impeachment proceedings in the future. See Bruno Lupion, ‘O gênio está solto, e não será fácil controlá-Lo, diz pesquisador de impeachments na América Latina, Nexo, 24 April 2016, www.nexojornal.com.br/ expresso/2016/04/24/O-gênio-está-solto-e-não-será-fácil-controlá-lo-diz-pesquisador-de-impeachme nts-na-América-Latina. His prediction was confirmed. From 1988 to 2016, two state governors faced impeachment processes. From 2016 to 2020, six state governors had to deal with trials by regional legislatures (A Shalders, ‘Brasil vive “onda” de impeachments e analistas veem “banalização” após queda de Dilma’, BBC News Brasil, www.bbc.com/portuguese/brasil-54254307).

The Constant Threat of Impeachment  209 Pérez-Liñán, a political scientist, explains the difference between regime and government crises.36 Democratic regimes can remain untouched, while democratic governments would be ousted. This differentiation would allow for recognising a movement towards the parliamentarisation of Latin American countries’ presidential systems. Relying on Valenzuela, Pérez-Liñán suggests that impeachment results are not linked to a legislative–executive critical relationship, finding their source in popular uprisings echoed in parliament. Consider such an approach for the two Brazilian cases, Collor and Rousseff. In both impeachments, popular approval of the presidents was very low.37 Add to it the absence of parliamentary support or, worse, the inability to deal with the concessions the coalitional presidential system demands, and the distortion of this structure via corruption. Poor economic performance was an additional factor. The result was, unavoidably, impeachment. However, those are explanations, and not normative justifications. Impeachment is not equivalent to a vote of non-confidence in the 1988 Constitution. As Abranches argues, ‘Stability is … inherent to the presidential mandate’.38 An additional integrity factor could have been the already mentioned Federal Supreme Court’s reaction, at the start of the impeachment procedures, to the very fragile accusations. Such reaction would not mean the process is not political, since both houses act politically in verifying the suitability of the process. Nonetheless, they must do that using a juridical basis for the impeachable offences.39 The case of Bolsonaro supports the hypothesis that, although the process of impeachment is a political trial, it must be based on legal requirements. Even if the juridical conditions for the commitment of impeachable offences abound, he is still able to maintain political support from the National Congress and, therefore, avoid impeachment. This is due to three reasons: first, by virtue of the neoliberal agenda that he still supports or, at least, tolerates; second, because he changed his position from initially advocating his independence towards the legislators to relying on traditional (and common for his 30-year political career) coalitional support; third, his popularity continues to be strong, maintaining a minimum average of at least 30 per cent of the population. Although the economy has not progressed under Bolsonaro and has suffered a strong hit from the coronavirus crisis, he has reaped the fruits of the legislative politics, such as assuring a minimum monthly benefit for the poor. As long as the president can please a strong base within the National Congress, an impeachment will not succeed.

36 Pérez-Liñán (n 33) 203. 37 Abranches (n 13) 348. 38 ibid 355. 39 ‘The removal of Rousseff further destabilized the political system, leaving the country with a weak, corrupt, and unelected successor, and creating a vacuum in which the hard-right populism of Jair Bolsonaro could take power in 2019’ (T Ginsburg, A Huq and D Landau, ‘The Uses and Abuses of Presidential Impeachment’ (2019) 88 University of Chicago Law Review (forthcoming) 49).

210  Constitutional Resilience against Erosion III.  CAPTURING STATE INSTITUTIONS AND FIGHTING THE MEDIA

The 1988 Constitution provided a critical scheme to increase the independence of the judicial branch. Even considering the criticism presented in chapter three, one can see that the design of the judiciary and the organs that cooperate with it could help improve access to justice and democratise it. The Federal Prosecution Service (Ministério Público Federal) embraced the juridical defence of the legal order, the democratic regime and the public interests of the society. Even with the abuses perpetrated during Operation Car Wash, the institution has had an essential role in securing human rights and accounting for minorities’ rights. With the new constitution, there was the creation of the office of the Solicitor General of the Union (Advocacia-Geral da União), something that took from the Federal Prosecution Service the juridical counselling of the federal Government and enabled prosecutors to oppose the presidency and hold it accountable. Additionally, it allowed the Ministry of Justice to have a more independent role in securing public policies related to police accountability, public security matters, legal reforms, asset recovery, the protection of consumers and penitentiary issues. Jair Bolsonaro’s presidency promoted a real attack on the independence of those state institutions. During Lula’s administration, the president started a tradition of nominating as the Prosecutor General of the Republic (Procurador-Geral da República) someone nominated in a short list of three names elected by their peers in the association of federal prosecutors. Although the system can be criticised for its corporative aspect, it prevented the president from making politically biased nominations. President Temer took the first step in disabling the system, as he nominated a second elected candidate. President Bolsonaro, however, ignored the prosecutors’ election and nominated someone ideologically close to him. The results were damaging. The Prosecutor General of the Republic opposed the full disclosure of the meeting in which Bolsonaro would have pressed former Minister of Justice Sérgio Moro for dismissing the director of the Federal Police.40 He also attacked several methods of Operation Car Wash, targeting some measures correctly (such as the maintenance by the prosecutors of a wide data bank on citizens), although under accusations of acting politically biased. On a series of occasions, he had unusual meetings with the president, with Bolsonaro publicly indicating that a nomination for the Federal Supreme Court could happen in the future.41 In the case of the office of the Solicitor General of the Union, Jair Bolsonaro first nominated an evangelical solicitor, who was afterwards moved to the 40 L Calegari, ‘PGR pede que Celso de Mello divulgue apenas falas específicas de Bolsonaro’, Conjur, 15 May 2020, www.conjur.com.br/2020-mai-15/pgr-celso-divulgue-apenas-falas-especificas-bolsonaro. 41 D Carvalho, M Teixeira and T Fernandes, ‘Visita surpresa de Bolsonaro a Aras é vista no STF como novo ato de pressão do presidente’, Folha de S Paulo, 25 May 2020, www1.folha.uol.com. br/poder/2020/05/visita-surpresa-de-bolsonaro-a-aras-e-vista-no-stf-como-novo-ato-de-pressao-dopresidente.shtml.

Capturing State Institutions and Fighting the Media  211 Ministry of Justice. Whereas the 1988 Constitution provides that the Solicitor General of the Union must defend the union and advise the executive branch on juridical matters, the position started to be privatised by the different solicitors nominated by Bolsonaro. In the investigation against Bolsonaro’s supporters, who attacked Brazilian public figures and institutions, Justice Alexandre de Moraes issued a warrant suspending the Twitter and Facebook accounts of the individuals in question.42 Opposing the judicial ruling, Bolsonaro prompted the Solicitor General of the Union to file a constitutional review lawsuit to suspend decisions that blocked social media profiles. Although freedom of expression was the public reason, the timing of the filing was according to the order suspending the social media accounts.43 The Ministry of Justice attracted other problems, beyond the controversy involving former Minister Sérgio Moro (see chapter three). The office was used to file a writ of habeas corpus in the Federal Supreme Court to prevent a polemical Bolsonaro aide, the former minister of education, from delivering a testimony to the Federal Police.44 The Court rejected the petition. After Moro’s resignation, a media outlet claimed that the new minister of justice was producing a dossier on the federal Government’s political opponents, allegedly members of Antifa movements. State agencies would have targeted 579 public servants and professors.45 Both the Prosecutor General of the Republic and the Solicitor General of the Union defended the investigations as intelligence activities before the Federal Supreme Court, in a lawsuit filed by a political party. The Court, however, found that the minister of justice did not present any plausible justification for the reports and that Bolsonaro had already positioned himself against Antifa movements.46 The minister of justice would also be used to persecute journalists and critics of the Government based on controversial interpretations of the National Security Law.47 If the situation in the above-mentioned agencies and ministries seems to be one of capture in favour of private or biased political interests, there are other

42 Federal Supreme Court, Inq 4.781, judgment of 22 July 2020, static.poder360.com.br/2020/07/ Decisao-Bloqueio.pdf. 43 See Office of the Solicitor General of the Union, Petition, static.poder360.com.br/2020/07/ AGU-ADPF-Liberdade-de-expressao-e-redes-sociais-Inicial-assinada.pdf; Poder 360, ‘Bolsonaro entra no STF com pedido que defende perfis de aliados’, Poder 360, 25 July 2020, www.poder360. com.br/governo/bolsonaro-entra-no-stf-contra-suspensao-de-perfis-de-aliados. 44 J Chaib, ‘Ministro da Justiça assinou habeas corpus a favor de Weintraub para dar recado político ao STF’, Folha de S Paulo, 28 May 2020, www1.folha.uol.com.br/poder/2020/05/ministroda-justica-assinou-habeas-corpus-a-favor-de-weintraub-para-dar-recado-politico-ao-stf.shtml. 45 On the list of those investigated was Paulo Sérgio Pinheiro, member of the UN Independent International Commission of the Inquiry on the Syrian Arab Republic, former Brazilian National Truth Commission counsellor and Human Rights Secretary during FHC’s term. 46 Federal Supreme Court, ADPF 722, judgment of 20 August 2020, www.conjur.com.br/dl/votogilmar-dossie-mj-antifascistas.pdf. 47 U Reis and E Meyer, ‘Undemocratic Legislation to Undermine Freedom of Speech in Brazil’, I-Connect Blog, 3 February 2021, www.iconnectblog.com/2021/02/undemocratic-legislation-toundermine-freedom-of-speech-in-brazil.

212  Constitutional Resilience against Erosion cases in which the manoeuvre looks like a slow, deteriorating process from the inside out – a feature of illiberal democracies.48 In other words, institutions are occupied and then dismantled, without the need to supress them. To simply oppose politics for the protection of the environment in Brazil would not only blatantly ignore norms provided for by the 1988 Constitution and statutory, law but could harm foreign investment. The option was to nominate someone closer to agribusiness and loggers that could dismantle the overseeing system and its agencies. Harsh budget cuts, the reduction of half of the forest inspectors, increasing deforestation, the spreading of the COVID-19 pandemic within indigenous communities, the burning of large acres of Pantanal region and the unexplained use of military personnel are amongst the policies of this government criticised by the world. Even though the Ministry of the Environment still remains, it has been severely hollowed out. Human rights policies follow similar steps. Under Bolsonaro’s Government, the office dedicated to human rights was transformed into the Ministry of Women, Family and Human Rights (hereafter Ministry of Human Rights) and an evangelical supporter of the president was nominated for the position. Politics related to reparation processes that once belonged to the Ministry of Justice were transferred to the Ministry of Human Rights. The reparation processes for the victims of gross violations of human rights were mostly attributed to revisionists and people that supported the dictatorship of 1964–1985. A regulation was created to obligate health professionals to notify police authorities prior to performing abortions in cases of rape. The change was seen by the Public Defender’s Office (Defensoria Pública da União) as a move to avoid practices that are legally protected.49 As the Federal Supreme Court could have ruled that the regulation was unconstitutional, the Ministry of Health modified it. Educational institutions protected by the 1988 Constitution were also targeted. The first minister of education nominated by President Bolsonaro was sacked based on his ineptitude for the position. The second started a crusade against federal public universities, restricting budgets and making unfounded public accusations. One of his principal agenda items was the expansion of ‘civic–military’ schools, which would provide general education based on the values of the armed forces. He made racist comments about China and aggressive threats against the Federal Supreme Court, transforming his dismissal into an imposition.50 President Bolsonaro had to abandon another nomination 48 T Ginsburg and A Huq, How to Save a Constitutional Democracy (Chicago and London, The University of Chicago Press, 2018) 21. 49 Defensoria Pública de Minas Gerais, ‘Defensorias Públicas ajuízam ACP e pedem suspensão de portaria do Ministério da Saúde por revitimizar mulheres em situação de violência sexual’, Assessoria de Comunicação, 3 September 2020, defensoria.mg.def.br/index.php/2020/09/03/ defensorias-publicas-ajuizam-acp-e-pedem-suspensao-de-portaria-do-ministerio-da-saude-porrevitimizar-mulheres-em-situacao-de-violencia-sexual/. 50 Reuters, ‘Brazil minister quits as Supreme Court sends message to Bolsonaro’, Reuters, 18 June 2020, www.reuters.com/article/us-brazil-politics-weintraub/brazil-minister-quits-as-supreme-courtsends-message-to-bolsonaro-idUSKBN23P3FM.

Capturing State Institutions and Fighting the Media  213 because of inconsistencies in the CV of the nominee. An evangelical pastor who declared that homosexuality was only common in dysfunctional families was nominated to the ministry of education. Bolsonaro minimised the importance of the institution of culture, also protected by the 1988 Constitution, by transforming it from a ministry into a secretariat, with consequences for its autonomy and budget. The president was also pressed to dismiss one of his first culture secretaries who recorded a video in which he emulated Joseph Goebbels.51 At the same time that institutions were being eroded, fundamental rights of minorities were also being attacked by Bolsonaro’s Government. Indigenous peoples protected by the 1988 Constitution were among them. Amid the most significant rates of deforestation in a decade, loggers and miners invaded indigenous lands in the state of Pará, as the opposition to halting anti-mining operations by an agency commander prompted his dismissal.52 The logic of these wide-ranging measures against Brazilian social-democratic constitutionalism shows that, in some cases, to depict the situation as one of dismantling institutions without supressing them is not enough. In some cases, ‘erosion’ is used as a metaphor when ‘effective destruction’ would be more appropriate. The attacks targeted state institutions, fundamental rights and also important private actors who oversaw the Government’s accountability. President Bolsonaro’s relationship with critical media outlets was fierce right from the start of his term. The trend started during his inauguration, when several journalists complained about the ground-breaking security apparatus used by his team and the poor working conditions they were left with. It would not take long for him to attack media professionals, making clear his preference for support supportive outlets and opting to communicate through social media.53 When the biggest TV broadcaster started to be critical of his presidency, he drastically cut off official advertising and directed it to more sympathetic companies.54 On different occasions, President Bolsonaro has been blatantly violent against journalists: ratifying a macho utterance that accused a female journalist of exchanging information for sexual favours,55 accepting harassment committed by his supporters against journalists who covered the presidential residence,56 51 E Londoño, ‘Brazil’s Top Culture Official Fired Over Speech Evoking Nazi Propaganda’, NY Times, 17 January 2020, www.nytimes.com/2020/01/17/world/americas/roberto-alvim-brazil.html. 52 B Garvey and M Torres, ‘Brazil’s Jair Bolsonaro is devastating indigenous lands, with the world distracted’, The Conversation, 30 May 2020, theconversation.com/brazils-jair-bolsonarois-devastating-indigenous-lands-with-the-world-distracted-138478. 53 A Downie, ‘Bolsonaro is making Brazilian journalists’ jobs more difficult’, Committee to Protect Journalists, 21 March 2019, cpj.org/2019/03/bolsonaro-is-making-brazilian-journalists-jobs-mor. 54 F Fabrini, ‘Globo perde participação em verba oficial de publicidade sob Bolsonaro’, Folha de S Paulo, 12 November 2019, www1.folha.uol.com.br/poder/2019/11/globo-perde-participacaoem-verba-oficial-de-publicidade-sob-bolsonaro.shtml. 55 G Uribe, ‘Bolsonaro insults Folha Reporter with sexual insinuation’, Folha de S Paulo, 18 February 2020, www1.folha.uol.com.br/internacional/en/brazil/2020/02/bolsonaro-insults-folhareporter-with-sexual-insinuation.shtml. 56 T Phillips, ‘Brazil media boycott Bolsonaro residence after abuse of reporters’, The Guardian, 26 May 2020, www.theguardian.com/world/2020/may/26/brazil-media-boycott-bolsonaro-residenceabuse-of-reporters-suspend-reporting-president-supporters.

214  Constitutional Resilience against Erosion and threatening to punch a journalist who asked him about deposits made by a milícia member into his wife’s bank account.57 Bolsonaro and his aides understand the power of political propaganda. Emulating the bodies that, during the 1964–1985 dictatorship, produced political propaganda,58 the Bolsonaro presidency started using the Special Social Communication Secretariat (Secretaria Especial de Comunicação Social, SECOM) as a mouthpiece for partisan or broader ideological propaganda. It is essential to remember that the 1988 Constitution provides that public administration advertising must be of an educational, informative or social character. Nonetheless, SECOM has been accused of using an excessive budget, abusing its powers to favour the federal government image, chasing comedians who have been critical of Bolsonaro, and even referring to Nazi slogans.59 Harsh comments about the Government were answered with investigations based on the National Security Act, following orders of the Ministry of Justice. However, the procedures were halted by the Brazilian Superior Court of Justice.60 The capture of state institutions would not have been complete if it did not reach the intelligence bodies. That was the case of the Brazilian Intelligence Agency (Agência Brasileira de Inteligência, ABIN). As it was mentioned above, ABIN was involved in an investigation into public servants and professors who allegedly belonged to Antifa movements. Another critical accusation relates to the supposed usage of the agency to help the defence of the president’s son and senator, Flávio Bolsonaro, in a criminal investigation involving the family’s former aide, Fabrício Queiroz.61 As was mentioned in another chapter, the case is related to the false contracts of cabinet servants in the State of Rio de Janeiro Legislative Assembly. The salary of those public servants was deviated to pay the personal expenses of the Bolsonaro family (the so-called rachadinhas).

57 BBC News, ‘Brazilians back reporter whom Bolsonaro “felt like punching”’, BBC News, 24 August 2020, www.bbc.com/news/world-latin-america-53887902. 58 The so-called Special Public Relations Consultancy (Assessoria Especial de Relações Públicas, AERP) accomplished this work using TV and short films. See N Schneider, Brazilian Propaganda: Legitimizing an Authoritarian Regime (Gainesville, University Press of Florida, 2014). 59 ‘Secom Uses Expression Similar to Nazi Slogan to Promote Pandemic Work’, Folha de S Paulo, 11 May 2020, www1.folha.uol.com.br/internacional/en/brazil/2020/05/secom-uses-expressionsimilar-to-nazi-slogan-to-promote-pandemic-work.shtml. For the use of the ‘Arbeit Macht Frei’ slogan in American protests against COVID-19 lockdown measures: C Poterfield, ‘Nazi Slogans At Coronavirus Lockdown Protest Draws Rebuke From Auschwitz Museum’, Forbes, 2 May 2020, www.forbes.com/sites/carlieporterfield/2020/05/02/nazi-slogans-at-coronavirus-lockdown-protestdraws-rebuke-from-auschwitz-museum/#7100ef741831. 60 UOL, ‘STJ suspende inquérito contra colunista da Folha por artigo sobre Bolsonaro’, UOL, 25 August 2020, noticias.uol.com.br/politica/ultimas-noticias/2020/08/25/stj-suspensao-inqueritocolunista-folha.htm. It is important to remember that Brazilian prosecutors, following the mood of Operation Car Wash, also opened investigations and indicted journalist Glenn Greenwald for supposedly committing cybercrimes, a very debatable restriction on the freedom of the press: S Cowie, ‘Brazilian prosecutors charge journalist Glenn Greenwald with cybercrimes’, The Guardian, 21 January 2020, www.theguardian.com/world/2020/jan/21/glenn-greenwald-charged-cybercrime-brazil. 61 DW, ‘Abin Produziu Relatórios para Flávio Bolsonaro, Diz Revista’, DW, 11 December 2020, www.dw.com/pt-br/abin-produziu-relatórios-para-flávio-bolsonaro-diz-revista/a-55912653.

Parliamentary Control and the Abuse of Executive Orders  215 ABIN produced two reports in which it described the alleged illegal surveillance of Flávio Bolsonaro’s fiscal data by Federal Revenue officers, suggesting their dismissal. The agency also pledged for the involvement of other federal bodies to help Flávio’s defence. This case demonstrates that state capture can go beyond political objectives to attain personal goals. Independent accountability agencies, autonomous and technical executive bodies, the protection of the environment, indigenous rights, human rights, socio-economic rights to health and education, freedom of the press and freedom of expression are all principles enshrined in the 1988 Constitution. It is possible to conclude that Bolsonaro’s Government is profoundly committed to undermining those constitutional norms. IV.  PARLIAMENTARY CONTROL AND THE ABUSE OF EXECUTIVE ORDERS

The increased concentration of powers in the executive branch has been a concern for commentators who deal with authoritarian backsliding.62 This takes place with the executive’s concentration of power alongside a decrease in electoral competitiveness, which until now, in Brazil, has been explained by undue digital interference in elections.63 Expanding executive powers can occur through fuelling intolerance against opposition parties, attacking the media or intervening in civil society groups. Although Dresden and Howard refer to proper hybrid regimes, their concern over the politicisation of state institutions is alarming for the cases of constitutional erosion, such as Brazil.64 Moreover, attempts to promote executive aggrandisement, like the one described by Nancy Bermeo, can be seen in Jair Bolsonaro’s tactics.65 The issue of gun possession, one of Bolsonaro’s main electoral priorities, received significant attention from the outset of his government. His objective was to make it easier for any citizen to have a gun (see chapter five). Bolsonaro planned to do this by issuing decrees that regulated the Disarmament Statute, an act from 2003 that restricted gun ownership.66 In doing so, he ignored the restrictive character of the Disarmament Statute.67 The president has the power 62 J Dresden and M Howard, ‘Authoritarian Backsliding and the Concentration of Political Power’ (2016) 23 Democratization 2. 63 For an opposite view of the 2018 electoral campaign and not focusing on the digital media influence, see J Nicolau, O Brasil Dobrou À Direita: Uma Radiografia da Eleição de Bolsonaro em 2018 (São Paulo, Zahar, 2020). 64 J Dresden and M Howard, ‘Authoritarian Backsliding and the Concentration of Political Power’ (2016) 23 Democratization 7. 65 N Bermeo, ‘On Democratic Backsliding’ (2016) 27 Journal of Democracy 13. 66 See www.planalto.gov.br/ccivil_03/leis/2003/l10.826.htm. 67 E Meyer and A Rezende, ‘Governing Through Decrees: Between Guns and Authoritarian Symptoms’, Democratizando, 22 May 2019, cjt.ufmg.br/en/2019/05/22/governing-through-decreesbetween-guns-and-authoritarian-symptoms.

216  Constitutional Resilience against Erosion to issue executive orders or, in the Brazilian legal tradition, decrees. Decrees contrary to the statutory law are, however, illegal. Based on that illegality, the National Congress can halt presidential decrees that go beyond the limits of the regulatory power to change statutes and acts.68 The Federal Senate considered Bolsonaro’s gun access decree to have done that and voted for the suspension of the presidential order via a legislative decree (decreto legislativo). The Chamber of Deputies still needed to agree. Other parties filed lawsuits in the Federal Supreme Court. Bolsonaro’s response was to revoke the decree partially and issue others, creating a scenario of juridical insecurity. In 2020, Bolsonaro went further in his endeavour to arm the population by exempting from taxes the importation of firearms, a decision promptly halted by the Federal Supreme Court.69 In 2021, again, a set of new decrees targeted the expansion of the access to guns.70 In the legislative procedures, especially concerning bills that aim to create acts based on the president’s power to issue provisional measures (medidas provisórias), President Bolsonaro faced further defeats.71 The transfer of the Council on the Control of Financial Activities (Conselho de Controle de Atividades Financeiras, COAF), charged with the duty of overseeing financial activities related to the commitment of crimes, to the Minister of Justice – an ambition of former Minister Sérgio Moro – was initially achieved through a provisional measure. The National Congress, however, opposed Bolsonaro’s efforts and kept the Council in the hands of the powerful Ministry of the Economy by the process of not converting the provisional measure into an ordinary Act. The Council was then transferred to the Central Bank of Brazil.72 A similar, but unsuccessful, attempt was made to move the Indigenous National Foundation (Fundação Nacional do Índio, FUNAI), the official indigenist body of the federal Government, to the Ministry of Human Rights. The approval of Constitutional Amendment 103 of 2019 resulted in an ambitious reform of the pensions system. Although the Bolsonaro Government reached a political goal that ex-President Temer could not, some restrictions were imposed by the National Congress. That is an area where the neoliberal perspective is part of a consensus between the executive and legislative branches. Nonetheless, changes in the continued instalment benefit which, as already mentioned, reaches elderly and people with disabilities, whose income was a

68 1988 Constitution, Art 49(V). 69 Brazil, STF, MC na ADPF 772, judgment of 14 December 2020, www.conjur.com.br/dl/fachinaliquota-zero-importacao-armas.pdf. 70 See generally www.conjur.com.br/dl/decreto-bolsonaro-armas.pdf. 71 Article 62 of the 1988 Constitution allows for the president to issue provisional measures with the force of law, which shall prevail for a period of 60 days, with one extension allowed. If the National Congress does not make the conversion, the provisional measure loses its effect retroactively. See V Silva, The Constitution of Brazil: A Contextual Analysis (Oxford, Hart Publishing, 2019) 220. 72 See Law 13.974 of 2019, www.planalto.gov.br/ccivil_03/_Ato2019-2022/2020/Lei/L13974.htm.

On Federalism: The Governors’ Reactions  217 quarter of the minimum wage, were not approved by the legislators. Also, modifications in rural pensions as well as a move towards a system of capitalisation along the lines of the Chilean model (the same subject that prompted a constitutional revolution in that country) were subject to congressional defeats. As mentioned before, attempts by Minister Sérgio Moro, including the so-called ‘licence to kill’, an excuse for those accused of committing homicide in response to fear, surprise or violent emotion, the inclusion of a comprehensive plea-bargaining system and the possibility of definitive imprisonment after an appeals court condemnation, were rejected. In dealing with the COVID-19 pandemic, the federal Government proposed an emergency benefit (auxílio emergencial) for informal workers with low incomes that had its value tripled by the National Congress. As previously mentioned, President Bolsonaro initially gained popularity from the measure.73 Bolsonaro partially vetoed Acts that mandated the use and supply of masks in public spaces, such as commercial and industrial premises, religious buildings, schools and places used for meetings. The president’s vetoes would be overturned by the National Congress.74 The enactment of Constitutional Amendment 100 widened the binding character of legislative amendments made by representatives on executive budgetary bills, creating an additional instrument for overseeing public policies led by the Government.75 Those reactions show that the National Congress is in a permanent tension with the executive led by Bolsonaro. On one hand, legislators agree and support the neoliberal agenda, despite its unlawfulness considering the 1988 Constitution. On the other hand, representatives set measures to hold the executive branch accountable for his attacks on the basis of liberal constitutionalism. V.  ON FEDERALISM: THE GOVERNORS’ REACTIONS

President Jair Bolsonaro adopted a sceptical approach towards the COVID-19 pandemic. Brazilian state governors and city mayors, in their majority and pressed more directly by their electorate, were more responsible in adopting 73 Agência Senado, ‘Coronavírus: Senado aprova auxílio emergencial de R$ 600’, Agência Senado, 30 March 2020, www12.senado.leg.br/noticias/materias/2020/03/30/coronavirus-senadoaprova-auxilio-emergencial-de-r-600. 74 See Law 14.019 of 2020, www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/lei/L14019.htm# derrubadaveto. 75 Budgetary issues and the quarrel between the National Congress and President Bolsonaro made the Minister of the Institutional Security Cabinet, General Augusto Heleno, declare: ‘we cannot accept those guys blackmailing us all the time. Damn i[t]’ (‘não podemos aceitar esses caras chantageando a gente o tempo todo. Foda-s[e]’). Heleno was recorded in a presidential public ceremony and the audio was leaked to the press. See H Mendonça, ‘General Heleno diz que parlamentares “chantageiam” Governo e abre novo embate com o Congresso’, El País, 19 February 2020, brasil. elpais.com/brasil/2020-02-19/general-heleno-diz-que-parlamentares-chantageiam-governo-eabre-novo-embate-com-o-congresso.html. The declaration prompted further unnecessary tension between branches.

218  Constitutional Resilience against Erosion measures against the spread of the virus. Additionally, some of them opposed the federal Government in a variety of circumstances. The National Congress approved the primary juridical basis for fighting the COVID-19 pandemic through a general law.76 The act followed general patterns established by the World Health Organization.77 Conflicts in the federal system arrived at the Federal Supreme Court to be adjudicated. Beyond its restrictive jurisprudence, the Court, more than once, indicated to the federal Government that it could not create hurdles for the protective performance adopted by governors and mayors. The Federal Supreme Court confirmed that the health protection was jointly administered, in a decentralised way, by the members of Brazilian federation (the union, the states, the federal district and the municipalities) and that it was subject to concurrent powers of legislation.78 The ruling meant that the union, commanded by the federal Government, had a coordination role, whereas the states, federal district and municipalities, concurred on legislative interests particularised in their territories. Additionally, the Court halted an attempt to restrict the access to information on the COVID-19 pandemic public policies.79 On another occasion, several parts of a bill that made mask-wearing obligatory in public spaces were vetoed by President Bolsonaro. The vetoes reached, for instance, provisions that allowed states and municipalities to use their own powers to fine individuals and public bodies that did not use or demand the use of masks. Some provisions had the effect of transferring to regional and local authorities the power of overseeing the use of masks as a public policy to fight the pandemic, an aspect that strengthened the members of the federation. Reinforcing the federal system, the National Congress, again, acted against the executive branch, overturning the vetoes.80 Some states that counted on governors that opposed President Bolsonaro went even further to protect their citizens. Consider, for instance, that in June 2020 the federal Government did not spend even one-third of the budget dedicated to the fight against COVID-19.81 The State of Maranhão, however, 76 Law 13.979 of 2020. See www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/lei/L13979.htm. 77 E Meyer and T Bustamante, ‘Authoritarianism Without Emergency Powers: Brazil Under COVID-19’, Verfassungsblog, 8 April 2020, verfassungsblog.de/authoritarianism-without-emer gency-powers-brazil-under-covid-19. 78 Federal Supreme Court, ADI MC 6.341, judgment of 24 March 2020, portal.stf.jus.br/processos/downloadPeca.asp?id=15342747913&ext=.pdf. 79 Federal Supreme Court, ADI MC 6.347, judgment of 30 April 2020, portal.stf.jus.br/processos/ downloadPeca.asp?id=15344001288&ext=.pdf. 80 See Law 14.019 of 2020, www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/lei/L14019.htm#der rubadaveto. 81 Of a total amount of US $7.33 billion, the government spent only 27.2% (at a dollar rate of R $5.36 on 9 September 2020). The information was provided by the Minister of Health, General Eduardo Pazuello, at a public audience for the National Congress. Nonetheless, 4.4 million chloroquine pills were distributed. See UOL, ‘Pazuello: Saúde não gastou nem um terço do dinheiro para combate à covid-19’, UOL, noticias.uol.com.br/saude/ultimas-noticias/redacao/2020/06/23/pazuell o-saude-nao-gastou-nem-um-terco-do-dinheiro-para-combate-a-covid.htm.

‘I Will Interfere!’ The Federal Supreme Court Fights Back  219 bought pulmonary ventilators from China, without the consent of the federal Government. To legally protect itself, a lawsuit was filed in the Federal Supreme Court, which recognised that the union, except in the cases of constitutionally recognised states of defence or siege, could not make a requisition of the respirators acquired by states.82 Brazil is not close to adopting federalism ‘all the way down’,83 although, in comparison with previous constitutions, the 1988 Constitution made essential efforts to provide autonomy for states and municipalities. Nonetheless, tax revenues have been increasingly concentrated in the hands of the central Government, especially in more recent decades. The COVID-19 pandemic efforts showed, at least in the middle of the emergency, that the 1988 Constitution can provide effective tools for granting a democratic distribution of power throughout the country. VI.  ‘I WILL INTERFERE!’ THE FEDERAL SUPREME COURT FIGHTS BACK

President Bolsonaro’s relationship with the Federal Supreme Court was always tense. In this section, various decisions of the Court show that there is, however, enough space given by the 1988 Constitution to control the executive branch. One can conclude it by virtue of analysing the protection of minorities, the participative character of public policies, COVID-19 fighting measures, the rights of indigenous people, the protection of poor populations against police operations, the right to education and the protection of democratic institutions. By virtue of the insulating configuration of the Brazilian judiciary – due to its institutional and privileged features – it is not simple to accept that Ríos-Figueroa’s thesis on the mediating power of constitutional courts shall be vested in the Federal Supreme Court.84 The Court has not properly reduced the uncertainty of legal consequences of actions, the weight of extraordinary circumstances or the balanced interests in an appropriate way or as a mediating power should do. The Federal Supreme Court, at least between 2014 and 2020, had unfortunately contributed much more to create instability in mega-politics. For instance, the signs the Federal Supreme Court gave to the armed forces were confusing. Military members maintained an expectation of an absence of accountability for the crimes committed during the dictatorship of 1964–1985. Such a lack of responsibility created space for the armed forces to argue for a protagonist role in politics. 82 Federal Supreme Court, ACO 3.385, judgment of 20 April 2020, portal.stf.jus.br/processos/ downloadPeca.asp?id=15342938537&ext=.pdf. 83 H Gerken, ‘The Supreme Court 2009 Term Foreword: Federalism All The Way Down’ (2010) 124 Harvard Law Review 4. 84 J Ríos-Figueroa, Constitutional Courts as Mediators: Armed Conflict, Civil–Military Relations, and the Rule of Law in Latin America (New York, Cambridge University Press, 2016) 24.

220  Constitutional Resilience against Erosion Judges, as public servants, are not exempt from criticism.85 But what has also been taking place in Brazil is a kind of personal attack that entails criminal liability, something hazardous to democracy and its institutions. Digital milícias and supporters of the Bolsonaro Government led, in 2020, to furious challenges to the very existence of the Federal Supreme Court – both online and in public demonstrations. Against it, a counterbalance must be built in the sense of understanding how institutions and constitutional functions must be improved without abandoning them. That is the reason why this book not only presents essential decisions made by the Federal Supreme Court that protected minorities’ rights and institutional devices. It also recognises that attacks on the judicial branch’s survival led to important judicial responses to the Bolsonaro Government.86 In 2019, a case involving the extension of the crime of racism to protect the LGBT community signalled against Bolsonaro’s conservative politics. The case involved the problem of solving unconstitutional omissions by legislators via judicial review.87 The Federal Supreme Court had a case law on unconstitutional omissions that ranged from simple notifications to the National Congress that there was a legislative gap in regulating an institute or right provided for by the 1988 Constitution, to a more constructive position. The constructive perspective allowed the Court to give general standards for exercising a right if the omission persisted over time.88 In the 2019 case, the petitioners filed lawsuits requiring that the crime of racism, as provided for by the Racism Act,89 also punished those who discriminate against members of the LGBT community. The Federal Supreme Court recognised this unconstitutional omission. The Court provided an ‘interpretation in harmony with the constitution’ to include homophobia and transphobia in the protections provided by the Racism Act. In a time of rampant conservatism and growing attacks against minorities, that was a key ruling. In that sense, reactions against Bolsonaro’s decree did not come only from the National Congress, but also from Brazil’s apex court. As was mentioned in chapter two, presidential decrees that restricted the participation of the representatives of civil society in federal councils on various public policies were halted by the Federal Supreme Court.90 The Court limited the suspension to 85 C Grabenwarter, ‘Constitutional Resilience’, Verfassungsblog, 6 December 2018, verfassungsblog.de/ constitutional-resilience. 86 Institutionally, however, the years 2019–2020 of the presidency of Chief Justice Dias Toffoli showed an excessively consensual and political role that only received, in exchange, threats to the institutional survival of the Court. 87 For a comparative assessment of how European constitutional courts deal with the problem, see the Venice Commission, ‘General Report of the XIVth Congress of the Conference of European Constitutional Courts on Problems of Legislative Omission in Constitutional Jurisprudence’, www. venice.coe.int/files/Bulletin/SpecBull-legislative-omission-e.pdf. 88 See E Meyer, Decisão e Jurisdição Constitucional: Crítica às Sentenças Intermediárias, Técnicas e Efeitos do Controle Constitucionalidade Em Perspectiva Comparada (Rio de Janeiro, Lumen Juris, 2017) 99; Venice Commission, ‘General Report of the XIVth Congress’ (n 87). 89 Law 7.716 of 1989, www.planalto.gov.br/ccivil_03/leis/l7716.htm. 90 Brazil, STF, MC na ADI 6.121, redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID= 751490560.

‘I Will Interfere!’ The Federal Supreme Court Fights Back  221 the councils that were expressly provided for by legislative acts. The ruling was another significant defeat to President Bolsonaro’s continuous attempts to undermine Brazilian constitutional democracy. The Federal Supreme Court rulings were also central to the COVID-19 pandemic. Bolsonaro’s negationist effort included federal government propaganda that stimulated people to abandon the quarantine measures imposed by state and local governments, with the motto ‘Brazil cannot stop’. The Government shared videos on social media in which COVID-19 was described as a non-risk disease. Federal Supreme Court Justice Barroso halted the advertising based on the violation of the constitutional rights to life, health, security and information.91 Other rulings concerning the rights of indigenous peoples must be highlighted. Through a provisional measure, President Bolsonaro planned to transfer the demarcation of indigenous lands to the Ministry of Agriculture. This could harm indigenous rights, since the Ministry of Agriculture, Stockbreeding and Supply is generally occupied by representatives of the agribusiness who oppose the demarcation of indigenous lands. The National Congress overrode the initiative, but Bolsonaro repeated the attempt in another provisional measure, blatantly violating the 1988 Constitution, which does not allow a rejected provisional measure to be reintroduced in the same legislative year. The Federal Supreme Court subsequently declared that the presidential measure was unconstitutional.92 Another ruling regarding indigenous people attempted to promote the protection of their health during the COVID-19 pandemic. The Coordination of Indigenous People of Brazil (Articulação de Povos Indígenas do Brasil), supported by political parties, filed a constitutional review lawsuit opposing actions and omissions of the federal Government that could raise the risk of infection and the extermination of indigenous people due to COVID-19.93 As ethnic groups in situations of extreme vulnerability, the position of the federal Government could cause them immediate harm. The cautionary ruling provided for by Justice Barroso, and ratified by the full bench, mentioned diverse public incidents in which Bolsonaro jeopardised the security of indigenous people. The constructive ruling demanded that the federal Government create sanitary 91 Federal Supreme Court, ADPF 669, judgment of 31 March 2020, www.stf.jus.br/arquivo/cms/ noticiaNoticiaStf/anexo/ADPF669cautelar.pdf. 92 Federal Supreme Court, ADI MC 6.172, judgment of 24 June 2019, portal.stf.jus.br/processos/downloadPeca.asp?id=15340483210&ext=.pdf. In another important decision, the Federal Supreme Court stopped Bolsonaro’s attempt to grab legislative powers through the suspension of the period of legislative approval for provisional measures during the COVID-19 pandemic (Federal Supreme Court, ADPF 663, judgment of 27 March 2020, portal.stf.jus.br/processos/downloadPeca. asp?id=15342775680&ext=.pdf. 93 The situation of indigenous people in Brazil under Bolsonaro was took to the International Criminal Court: J Chade, ‘Denúncia Contra Bolsonaro por Incitação ao Genocídio é Examinada por Haia’, UOL, 14 December 2020, noticias.uol.com.br/colunas/jamil-chade/2020/12/14/tribunalinternacional-confirma-que-esta-analisando-queixa-contra-bolsonaro.htm.

222  Constitutional Resilience against Erosion barriers, a negotiation table, the restraint and isolation of land intruders and the elaboration and monitoring of a federal plan for fighting COVID-19 on behalf of indigenous people.94 Another critical decision was related to the protection of vulnerable communities against police operations during the COVID-19 pandemic in Rio de Janeiro. The constitutional review lawsuit was first filed against Rio de Janeiro State’s decrees that regulated public security policies in the territory. Protocols for the use of force have been violated continuously and there was a chance of an increase in the death rate during the pandemic. In May 2020 alone, police officers killed 14 people, including a 14-year-old juvenile. Federal Supreme Court Justice Edson Fachin restricted the operations for extreme situations, imposing the need to communicate the operations to state prosecutors for oversight. His ruling recollects the condemnation of Brazil by the IACtHR in the case Favela Nova Brasília.95 The justice also established that sanitary measures should be adopted by the police officers to protect the population involved.96 The ruling resulted in a 76 per cent fall in deaths by police brutality against the monthly rates.97 Intentionally or not, the judicial order sparked a debate that demanded tribunals deepen their relationship with public security measures when ruling on these matters – something the military were dragged into doing, although in the wrong way. Although Rio de Janeiro’s police force started to disobey the Federal Supreme Court order at the end of 2020, the ruling did prompt for more military and police accountability. Another Federal Supreme Court’s ruling concerned the constitutional right to education. In a case involving both freedoms of expression and educational rights, a movement entitled the Non-Partisan School (Escola sem Partido), aimed at fighting what it called political and ideological indoctrination in Brazilian schools and universities, was founded. In support of the movement, the Brazilian State of Alagoas adopted legislation. In 2017, however, Federal Supreme Court Justice Roberto Barroso halted the state’s Act. In 2020, the Court’s majority decided to ratify Justice Barroso’s ruling, emphasising that the 1988 Constitution guarantees the plurality of ideas.98

94 Federal Supreme Court, ADPF MC 709, judgment of 8 July 2020, portal.stf.jus.br/processos/ downloadPeca.asp?id=15343710124&ext=.pdf. 95 Inter-American Court of Human Rights, Caso Favela Nova Brasília v Brasil, judgment of 16 February 2017, www.corteidh.or.cr/docs/casos/articulos/seriec_333_por.pdf. 96 Federal Supreme Court, ADPF MC 635, judgment of 5 June 2020, www.stf.jus.br/arquivo/cms/ noticiaNoticiaStf/anexo/ADPF635DECISaO5DEJUNHODE20202.pdf. 97 F Grandin and M Rodrigues, ‘RJ tem queda de 76% nas mortes cometidas por policiais após STF restringir operações em favelas’, G1, 25 August 2020, g1.globo.com/rj/rio-de-janeiro/ noticia/2020/08/25/rj-tem-queda-de-76percent-nas-mortes-cometidas-por-policiais-apos-stfrestringir-operacoes-em-favelas.ghtml. 98 Federal Supreme Court, ADI 5.537, judgment of 25 August 2020, portal.stf.jus.br/processos/ detalhe.asp?incidente=4991079.

‘I Will Interfere!’ The Federal Supreme Court Fights Back  223 This was the context in which the president’s supporters developed a new interpretation of Article 142 of the 1988 Constitution. The reading would favour an unconstitutional military intervention in the Federal Supreme Court, as was mentioned in chapter six. There were rumours that a Federal Supreme Court justice would order a search and seizure of Bolsonaro’s mobile phone in the investigations on the supposed interference with the federal police. In fact, only an order for the opinion of the Prosecutor General of the Republic was made – the Court refused to order seizure of the mobile phone, but reminded Bolsonaro that it would not tolerate contempt of court.99 As was stated in chapter six, the president allegedly threatened to use troops to shut the court – ‘I will interfere!’ he said.100 The reaction of the Court concerning the military intervention was very important: there is no moderating power under the 1988 Constitution.101 The pressure moved President Bolsonaro towards a traditional coalitional Brazilian presidential system, a change that cannot be accepted without extreme caution. Constitutional resilience is offered by the 1988 Constitution and the constitutionalism it provides for. Institutions, however, must be vigilant and bold against clear attacks on Brazilian constitutional democracy. This chapter has highlighted some examples of the constitutional erosion process starting to be reversed using the very constitution that is under attack. The constitutional identity of the 1988 Constitution – social and democratic – can and must be reclaimed against erosion. The cases described above showed that, under extreme conditions, the Federal Supreme Court and the National Congress reacted in ways capable of reversing the erosion of Brazilian constitutionalism. Plenty of examples from the last 30 years support this. They show that Brazil could be facing construction instead of slow deterioration. Amidst a huge political crisis, the Court not only dealt well in protecting the federal division of powers in the Brazilian health system, but it also started to control the deviations of Operation Car Wash, recovering one of the most important rights of the 1988 Constitution: those related to due process in criminal cases and the very rule of law.102 There are various measures that could be quickly taken to control the erosional process. Prosecutors could be (as they already were after 1988) more vigilant

99 Federal Supreme Court, Pet. 8.813, judgment of 1 June 2020, www.conjur.com.br/dl/ celso-mello-nega-pedido-pericia-celular.pdf. 100 M Gugliano, ‘“Vou Intervir!” O Dia em que Bolsonaro Decidiu Mandar Tropas para o Supremo’, Piauí, August 2020, piaui.folha.uol.com.br/materia/vou-intervir. 101 See Federal Supreme Court, MI 7.311, judgment of 10 June 2020, www.stf.jus.br/arquivo/cms/ noticiaNoticiaStf/anexo/MI7311.pdf; Federal Supreme Court, MC ADI 6.457, judgment of 12 June 2020, www.stf.jus.br/arquivo/cms/noticiaPresidenciaStf/anexo/ADI6457.pdf. 102 On 8 March 2021, the Federal Supreme Court nullified criminal lawsuits against former President Lula. See E Londoño and L Casado, ‘Brazil’s Ex-President “Lula” May Run for Office Again as Court Cases Are Tossed’, NY Times, 8 March 2021, www.nytimes.com/2021/03/08/world/ americas/brazil-lula-supreme-court.html.

224  Constitutional Resilience against Erosion towards the capture of the state for illegitimate political aims – p ­ reserving the public interest, universities, the environment and indigenous people. President Bolsonaro committed a huge number of impeachable offences. At this time, and especially in opposition to 2016, an impeachment process could have the capacity to regenerate the constitutional fabric and demonstrate the power of the 1988 Constitution. As in the fighting against the COVID-19 pandemic, federalism can be explored in order to enable governors to dictate the protection of 1988 Constitution against the presidential attacks. There is still time to increase the accountability of the military for crimes committed in the past: it relies on courts being able to pave a way that, by showing their wrongdoings, can take it out of politics. Institutional reforms to elevate the protection of human rights in armed and public security forces would only benefit those institutions, putting them closer to society instead of against it. That does not mean armed forces are expendable: they are vital for protecting national sovereignty. In the long run, processes of accountability can also affect the public security structure. To protect elections against abuses derived from illegal actions (for example, the milícias), as well as from distortions brought about by the digital era, also demonstrates the resilience of the 1988 Constitution. Inequality is another major problem that Brazilian constitutionalism must confront. Constitutional rights to health and education must have priority; it is time to strengthen them by allocating generous budgets. Additionally, redefining equality parameters via fiscal reforms that benefit the poor and reshape the taxation of rich people is an urgent matter that must be advanced with the cooperation of civil society. All these measures can take place under the 1988 Constitution. It remains with civil society and constitutional institutions to protect the constitutional democratic environment in which such measures are debated.

Epilogue

T

he first half of the year 2020 was marked by President Bolsonaro’s blatant attempt to organise a coup.1 The Brazilian National Security Act establishes that an aggression or act of potential harm to the representative and democratic regime, the federation and the rule of law is a crime.2 President Bolsonaro allegedly committed several of the infractions provided for by the act during the dictatorship of 1964–1985. National security crimes can take the shape of an attempt to change, with serious threat, the political order, the ongoing regime and the rule of law, or the attempt to prevent, with serious threat, the free functioning of any of the branches of the republic. The act also treats as crimes the public incitement of illegal processes for alteration of the political or social order, or the incitement to subvert the political or social order, or raise hostility between the armed forces and civilian bodies. Institutions that should hold the president accountable are already failing. The Prosecutor General of the Republic acts as a collaborator rather than an overseeing agent, as this book describes in chapter eight.3 After a serious health crisis affected the city of Manaus in which people suffocated due to a lack of oxygen cylinders in the hospitals, the Prosecutor General of the Republic limited its investigations to the Minister of Health, General Pazuello. Although the Federal Supreme Court approved the criminal procedures, it still falls to civil society organisations and other state authorities to bring Bolsonaro’s government to account. The situation in Manaus led to other impeachment requests in the Chamber of Deputies, and rallies took place in different Brazilian cities, as newspapers editorials and politicians supported the procedures. As chapter four described it, a congressman who published a video on YouTube against the Federal Supreme Court was imprisoned, in a reaction that is not common. Comparatively, Donald Trump’s defeat in the United States presidential elections and his outrageous campaign against the results prompted the violent depredation of the Capitol that has been considered insurgence. Impeachment seemed to be a solution once more although, at the end of his term, the procedure focused on excluding the former president from public life. Scholars debated the convenience and lawfulness of the second impeachment procedure, and Trump

1 C Barros, ‘Já houve golpe?’, Folha de S Paulo, 14 June 2020, www1.folha.uol.com.br/colunas/ celso-rocha-de-barros/2020/06/ja-houve-golpe.shtml. 2 See Law 7.170 of 1983, www.planalto.gov.br/ccivil_03/leis/l7170.htm. 3 The President must be tried by the Federal Supreme Court, with an authorisation of the Chamber of Deputies majority of two-thirds, for common crimes such as national security crimes (Art 86, § 1º, of the 1988 Constitution).

226  Epilogue would ultimately be acquitted.4 There were also fierce debates on the nature of the protests, with the Centre for Systemic Peace, for instance, qualifying the executive efforts to circumvent the electoral results and to attack the legislative building as an attempted presidential coup.5 There are stark differences between the North American and Brazilian examples, but there are also similarities. Both cases offer important lessons for the readers of this book. In respect to the equivalences, the cases show that, although there is a separation between constitutional erosion and the collapse of democracies, erosion can turn into collapse. If one considers that the speed to depreciate democracies into autocracies is twice the pace of the opposing process, one lesson is clear: constitutional democratic institutions cannot simply watch the erosion and not take strong measures against autocrats. In Brazil, it has been a common saying since 2014 that ‘the institutions are working’. This book has showed that this is only partially true and that the failures of the constitutional project of 1988 have been dominated the progresses. An important difference between the North American and Brazilian cases is the relationship between military and civilian authorities. Trump’s attempts to reverse the electoral results could have been quite different if he counted on military support. That is the reason why his Latin American counterpart, Jair Bolsonaro, shall be evaluated differently. President Bolsonaro, throughout his term, received only positive signs from the armed forces instead of indications that they would not engage with politics – legally or illegally. The context for an even stronger erosion of democratic institutions in a case of electoral defeat is different, and daunting. As of this writing, the Chamber of Deputies revived bills aimed at guaranteeing the military police in the Brazilian states more autonomy vis-à-vis the governors. This debate raised alarms on the possibility of further political capture of military institutions in favour of Bolsonaro’s goals, as chapter five indicated.6 In the end, those proposals could result in a general rupture that would seriously risk the integrity of Brazilian constitutional democratic institutions. Democracies that faced transitions in the past 30 years deal differently with military engagement with politics. Considering only the Latin American region, this book has showed that Brazil is in a different position to its neighbours. Far-reaching criminal accountability procedures in Argentina turned the perspective of armed forces to national sovereignty matters and took them from day-to-day politics. In Chile, a revolution took place, leading to an inclusive 4 T Ginsburg, A Huq and D Landau, ‘The Dilemma of Democratic Disqualification: The New Trump Impeachment Process in Comparative Perspective’, I-CONnect Blog, 21 January 2021, www. iconnectblog.com. 5 Center for Systemic Peace, ‘Notice: Democracy Cannot Be Defended by Force: It Is Enforced Through Accountability’, Center For Systemic Peace, www.systemicpeace.org. 6 C Alves, ‘Generais Observam Com Atenção Projetos Que Aumentam Autonomia das Polícias’, UOL, 13 January 2021, noticias.uol.com.br/colunas/chico-alves/2021/01/13/generais-observam-comatencao-projeto-que-aumenta-autonomia-de-policias.htm.

Epilogue  227 constituent assembly without fears that the military could block the process. Uruguay has democratically moved its presidency from different left- and rightwing politicians without major trouble. The case is completely different in Brazil (see chapter one). Although members of the military were more silent throughout the 1990s and the 2000s, they never went definitively to the barracks. Presidents Temer and Bolsonaro allowed for an increasing militarisation of politics, both legally and illegally. A diverse range of causes generated constitutional instability only comparable to Peru or Bolivia. The latter saw, in 2019, the armed forces pressing for the resignation of President Evo Morales on the basis of electoral results they did not accept. A constitutional erosion process is, without doubt, complex. Brazil is a hallmark example of judicial involvement with erosion without the previous subordination of courts – a counterexample to Poland and Hungary. Brazilian judges and courts, although important for the recognition of fundamental rights of minorities, avoided major institutional reforms, engaged in practices that compromised equality norms and decided in a controversial form matters of mega-politics (chapters three and four). In other words, the transitional and social-democratic constitutionalism planned by the 1988 Constitution seemed to be detached from the institutional organisation of the Brazilian courts. Operation Car Wash, a true judicialised police effort, illuminated electoral campaign financing, but at a serious cost to the rule of law. Since the operation started in 2014, Brazil’s World Justice Project Rule of Law Index rates have not improved.7 In the index ‘absence of corruption’, Brazil occupied the 55th position in 2015, considering 102 countries. In 2020, the country fell to the 69th place. The data shows that restrictions to fundamental rights do not directly imply efficient fights against corruption. Even if one does not adopt a critical perspective on the performance of the Brazilian courts, there should be, at least, the recognition of contradictions in decision-making. Consider, for example, the recent Federal Supreme Court case law. At the end of 2020, pressured to maintain the same representative as Speaker of the Chamber of Deputies, the Court almost went against the 1988 Constitution to allow for his re-election. In this case, the Constitution is clear in forbidding such re-election. Again, the Court would make – as it did in relation to the presumption of innocence fundamental right or the requirement that labour unions interfere in contract changes – a modification in constitutional interpretation that went against the constitutional text.8 On the other hand, the Federal Supreme Court was essential in controlling Bolsonaro’s failings during the COVID-19 pandemic.9 It is on the side of those 7 WJP Rule of Law Index. Brazil Overall Score 2020. www.worldjusticeproject.org/rule-of-lawindex/country/Brazil. 8 Brazil, STF, ADI 6.524, judgment of 18 December 2020, portal.stf.jus.br/processos/detalhe. asp?incidente=5972250. 9 T Bustamante, E Meyer and F Tirado, ‘Opposing an Idle Government’, Verfassungsblog, verfassungsblog.de/opposing-an-idle-federal-government.

228  Epilogue rulings that reinforce the normative character of the 1988 Constitution that lies the possibility of exploring the Brazilian constitutional resilience against authoritarianism. The challenges are huge. But both the Federal Supreme Court and the National Congress have showed that there is space to control executive attempts to curb constitutional democracy. There are, however, pressing reasons to act quickly and seriously against actions and omissions that can accelerate the process of constitutional erosion. One must also bear in mind that constitutional scholars cannot neglect the problems for the definition of political decisions that have arisen with the digital age technologies. As Khaitan observes, there are means to affect the results of political processes other than votes, means that are not distributed equally – economic power can be converted into political power that works unequally.10 The Brazilian electoral campaign of 2018 was affected by technologies such as WhatsApp, but the courts responsible for overseeing elections did not enforce any strong measures against those practices (see chapter seven).11 In the 2020 local elections, the Brazilian Superior Electoral Court provided interesting solutions that weakened economic power interference with politics. Nonetheless, there is still a huge field to regulate in order to fulfil the 1988 Constitution provisions that control the influence of economic power in elections. Constitutional resilience is not only a matter of constitutional design. On the contrary, constitutional politics and the engagement of civil society matters for the defence of constitutions. The same can be said about how constitutional interpretation reflects on the performance of constitutional institutions. In this sense, bolder definitions of constitutionalism shaped contextually can work as efficient weapons against diverse forms of authoritarianism, especially those with neoliberal roots. This book addressed the problems generated by a reading of constitutionalism that excludes concerns on inequality (see chapter two).12 From the inception of the 1988 social-democratic and transitional constitutionalism, different political crisis enhanced the consequences of diverse politics that only lightly promoted inclusion. From neoliberal politics that increased inequality to the emergence of social media spreading admiration for authoritarianism, the constitutional identity shaped in 1988 was constantly attacked. That is why solutions focused on only one problem do not cover all the questions that are at stake when one considers a specific constitutional context. Bruce Ackerman argued that the absence of a decision in favour of parliamentarism is at the root of the current Brazilian political crisis. He suggested that Brazil should formulate a new constitution in 2023.13 However, the democratic

10 T Khaitan, ‘Political Insurance for the (Relative) Poor: How Liberal Constitutionalism Could Resist Plutocracy’ (2019) 8 Global Constitutionalism 543. 11 P Mello, A Máquina do Ódio: Notas de Uma Repórter sobre Fake News e Violência Digital (São Paulo, Companhia das Letras, 2020) 18. 12 See Khaitan, ‘Political Insurance for the (Relative) Poor’ (2019) 536–70. 13 B Ackerman, ‘Brazil’s Constitutional Dilemma in Comparative Perspective: Do Chile and Spain Cast Light on the Bolsonaro Crisis’, I-CONnect Blog, 16 July 2020, www.iconnectblog.com/2020/07/

Epilogue  229 character of the 1987–1988 Constituent Assembly indicates that the presidential system was a popular option and that parliamentarism was but a distinctly elitist approach. In that sense, the current situation in Hungary shows that neither polarisation nor radicalisation will be simply curbed by a different government system.14 Ackerman’s assessment and other politician’s suggestions, however, prompted a debate in which diverse political actors defended the 1988 Constitution even in the face of a longstanding political crisis. Consider, also, that on the verge of the public protests of 2013 that preceded the political crisis, former President Dilma Rousseff argued for a specific constituent assembly to debate political reform. The proposal did not survive. In other words, the 1988 Constitution seems to be an adequate constitution to prompt constitutional culture in Brazil – at least (or for the most relevant perspective) in the eyes of civil society. On 1 February 2021, the armed forces of Myanmar seized power in a coup d’état, and arrested the head of the country’s civilian leadership. Aung San Suu Kyi and her aides were imprisoned under allegations of violation of import and export laws, and using of unlawful communication devices.15 On the same day, leaked telegram conversations between former Minister of Justice and – at the time of the messages – federal judge Sérgio Moro and several of the federal prosecutors that worked on Operation Car Wash were declassified by the Brazilian Federal Supreme Court.16 The conversations showed, once more, the high level of agreement between the judge and the prosecutors, including advice on what to do regarding the accusations of former President Lula. On the same day, Bolsonaro achieved a political victory through the election of members of the so-called Centrão to command the Chamber of Deputies, and another sympathiser to lead the Federal Senate.17 The chances for legislative control of the executive or for an impeachment process decreased, at least for a while. The cases of Myanmar and Brazil show that collapse and erosion still loom over comparative constitutional politics. With the help of the judiciary and military members, Brazil is set to be in a worrisome political situation. As shown throughout this book, however, the tools to regenerate Brazil’s constitutional erosion are present in the 1988 Constitution. brazils-constitutional-dilemma-in-comparative-perspective-do-chile-and-spain-cast-light-on-thebolsonaro-crisis. 14 T Bustamante et al, ‘Why Replacing the Brazilian Constitution Is Not a Good Idea: A Response to Professor Bruce Ackerman’, I-CONnect Blog, 28 July 2020, www.iconnectblog.com/2020/07/whyreplacing-the-brazilian-constitution-is-not-a-good-idea-a-response-to-professor-bruce-ackerman. 15 A Harding, ‘The Tatmadaw’s 1 February Actions are not an Emergency but a Coup’, ICONnect Blog, 1 February 2021, www.iconnectblog.com/2021/02/the-tatmadaws-1-february-actions-are-notan-emergency-but-a-coup. 16 M Bergamo, ‘Lewandowski Suspende Sigilo de 50 Páginas de Conversas de Moro com Procuradores e Dá Acesso aos Documentos; Leia a Troca de Mensagens’, Folha de S Paulo, 1 February 2021, www1.folha.uol.com.br/colunas/monicabergamo/2021/02/lewandowski-levantasigilo-e-novas-conversas-de-moro-com-procuradores-podem-vir-a-publico.shtml. 17 Reuters, ‘Bolsonaro Ally Lira Elected Speaker of Brazil Lower House’, Reuters, 1 February 2021, www.reuters.com/article/us-brazil-politics-house/bolsonaro-ally-lira-elected-speaker-of-brazillower-house-idUSKBN2A205V?il=0.

230

Index Abranches, S.  203, 209 Abrão, P.  36 Ackerman, B.  228, 229 ‘ad tech’  180 Afonso da Silva, J.  41, 54 agonistic pluralism  183 Albert, R.  30, 77 Albertus, M.  65, 140 Alexy, R.  114 Almeida, S. de  73 Alves, J. C. S.  142, 143, 144 American Convention of Human Rights  45, 46, 47 auto-amnesty laws incompatible with  47 amnesty  24, 25, 26, 38, 39, 44 auto-amnesty laws incompatible with American Convention of Human Rights  47 ‘bilateral’ amnesty  25 civil society movements struggle for amnesty  35–6 crimes against humanity auto-amnesty of crimes against humanity  44, 45 domestic institutions, approach of  48–50 debates  40 Feminine Movement for Amnesty  35 reciprocal amnesty  36 amnesty caravans (caravanas da anistia)  43–4 Amnesty Commission  16, 43–4 criminal accountability  44 Amnesty Law (1979)  36 ‘connected crimes’  36 Amorim, C.  135 analytics companies  184, 191 Anderson, P.  91 anti-defection rules  122 anti-terrorism measures  144 Araguaia Guerrilla War (Guerrilha do Araguaia)  45–6, 134–5 Aras, A.  99, 100 Arguelhes, D.  109 austerity programmes  76, 77, 124, 125, 204 authoritarian backsliding  151–2, 172, 215 authoritarian collapse  7, 8

‘authoritarian legality’  34 authoritarian predispositions  194, 195 authoritarianism  129, 130, 194 competitive authoritarianism  7 economics, and  55, 56, 60 neoliberalism, and  57 social media, and  184 Bandeirante Operation (Operação Bandeirante)  34 Barbosa, R.  161 Barroso, Justice  98–9, 114, 125, 170, 221, 222 Benkler, Y.  189, 190, 191 Bentes, F.  74 Benvindo, J.  202 Bermeo, N.  215 bias confirmation  184, 189 Biebricher, T.  56 big data  181, 182, 183, 184, 189 ‘bilateral’ amnesty  25 Blount, J.  38 Bolsonaro, E.  147 Bolsonaro, F. 145, 214, 215 Bolsonaro, J.  3, 29, 75, 96, 97, 98, 99, 130, 138, 139, 147, 155, 174, 178, 188, 189, 190, 200 anti-truth discourse  179 attacking public universities  15 campaign for the presidency  14 capturing and dismantling state institutions  210–13, 214–15 COVID-19 pandemic  201, 217, 218, 221 elected as president  14, 15 electoral defeat, potential consequences of  226 executive orders  15, 16 impeachment, and  202, 209, 224, 225, 229 indigenous peoples  221 media, relationship with  213–14 military members of cabinet  15, 138–9 minorities’ rights  213 modified behaviour  202 National Congress, tension with  217 national security crimes  225 plan to bomb barracks  13

232  Index polemical utterances  15, 16 political career  13, 14 political propaganda  214 political support for Bolsonaro’s Government  201 politicising institutions  16–17 soldier, as a  13 support of the armed forces  17 undermining constitutional norms  215 bourgeois constitution  59 Brahm, Justice  26–7 Brazilian Intelligence Agency (Agência Brasileira de Inteligência, ABIN)  214–15 Brundidge, J.  192, 193 bulk messages  176, 177, 196 Bustamante, T.  207 Campos, F.  32, 162, 163 Cano, I.  143, 144 capitalism   58, 182, 184, 185 digital capitalism  182 surveillance capitalism  183, 185–9, 198 capturing and dismantling state institutions  210–13, 214–15 Cardoso, F. H.  2, 43, 100, 134 Cardoso, General  134 Cármen Lúcia, Justice  116–17 Carvalho, A.  82, 83 Carvalho, J.  43, 165–6 Cattoni, M.  41 Celeste, E.  181 Celso de Mello, Justice  14, 44 CEMDP  25, 43, 46 Chan-ocha, General  17 Chile amnesty  26 civil–military relationship  27 human rights violations  26, 27 Choudhry, S.  150 civil society movements struggle for amnesty  35–6 transformative justice  64 Claim of Breach of Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental, ADPF 153)  24, 25, 26, 44, 50 Clinton, B.  119 coalitional presidentialism  202, 203 collapse of democracies  7, 8 Collor, F.  112 impeachment  205–6

Colombia socio-economic rights  64 ‘Commission of Intellectuals’  82 communitarian constitutionalism  169 ‘communitarian self-defence’  143 competitive authoritarianism  7 concentrated wealth  185 Congressional Committee on Fake News (Comissão Parlamentar Mista de Inquérito)  178 congressional immunities  110 Constant, B.  156–7 Constituent Assembly (1987–1988)  37, 38, 39 amnesty debates  40 drafting texts  39, 40 structure and organisation of  39 Constitution (1967)  33 Constitution (1988)  1–2, 40, 41, 42 fundamental rights  1–2 separation of powers  2, 25 Constitutional Amendment 1 (1969)  33 Constitutional Amendment 4 (1961)  30 ‘campaign of legality’  30, 31 ‘juridical coup’  30 repealed by Constitutional Amendment 6 (1963)  30 Constitutional Amendment 11 (1978)  35 Constitutional Amendment 26 (1985)  38, 44 amnesty  38–9, 44 Constitutional Amendment 95 (2016)  77 ‘constitutional dismemberment’  77 constitutional crises   3, 4, 5, 6 acknowledging  6 dealing with  6 United States  4–5 Constitutional Court of Mongolia 119 constitutional democratic state  41, 42, 52 constitutional emergency  4 constitutional erosion  1, 7, 8, 9, 10, 226, 227, 229 constitutional identity  5, 6, 7, 9, 19, 52, 53, 55, 181, 199, 223, 228 constitutional perpetuity  3–4 constitutional resilience  199, 223, 224, 228, 229 COVID-19 pandemic approaches to dealing with  217–19 Bolsonaro, and  201, 217, 218, 221 Federal Supreme Court  221, 222 judge failing to wear mask  79 review of incarceration measures  79–80

Index  233 swearing ceremony for new Chief Justice  79 crimes against humanity absence of criminal liability for  19, 50, 51 auto-amnesty  44, 45 domestic institutions, approach of  48–50 military accountability  18 non-application of statute of limitations  48 criminal organisations  106 culture secretariat  213 Cunha, E.  90, 106, 107, 109, 111 Curió, S.  45 cyber-attacks on democracy  178 cyber-bullying  178 Czech Republic impeachment  120 Dallagnol, D.  98, 99 Daly, T.  9, 44, 45, 148, 169 data protection  188–9, 197 Death Caravan (Caravana de la Muerte)  27 Deibert, R.  183 deliberative democracy  58, 184 democracies relationship with constitutions  179–80 democratic decay  9, 83, 148, 149 democratic erosion  7, 8 Diamond, J.  5 dictatorship (1964–1985) amnesty for crimes against humanity domestic institutions, approach of  48–50 ‘authoritarian legality’  34 Bandeirante Operation  34 celebrations and commemorations  28–9 Constitution (1967)  33 constitutional amendments  33 coup  28, 31 crimes against humanity absence of criminal liability  50, 51 government rewriting history  29 institutional acts  32, 33 ‘movement of 1964’  28, 32 national security discourse  33 Supreme Command of the Revolution  31, 32 digital capitalism  182 digital constitutionalism  181, 198 digital milícias  147–8, 151, 177 digital misinformation  195, 196, 197, 198

‘distributive conflict model’  172 Dominguez, M.  192 Dresden, J.  17, 215 echo chambers  184, 189, 190 economic power  75, 102, 228 constitutions, and  58, 59, 60, 76 education, right to  222 educational institutions  212–13 elections  176, 178, 180, 183, 187, 191, 195, 196, 228 electoral propaganda  198 Elkins, Z.  38, 180 emergency powers  4, 8 Emperor moderating power  157, 158, 159, 160 environmental protection  212 Etchegoyen, General  136 Evans, M.  62, 63, 64 exceptional measures  106, 107 executive powers expansion of  215 Facebook  180, 184, 190, 191 Fachin, Justice  222 fake news  151, 177, 178, 180, 189–90, 193, 195, 197, 198 Family March with God for Freedom (Marcha da Família com Deus pela Liberdade)  31 Faris, R.  189, 190, 191 Favreto, Judge  117, 118 ‘federal interference’  137 Federal Supreme Court  44, 45, 219, 220, 221, 223 COVID-19 pandemic  221, 222, 227–8 indigenous peoples  221, 222 military intervention  223 right to education  222 unconstitutional omissions  220 federalism  219, 224 Feminine Movement for Amnesty (Movimento Feminino pela Anistia)  35 Ferraz, O.  75 Finn, J.  3, 4 flagrante delicto  106, 110, 115 forced disappearances  25, 43, 46, 47, 50 Fowkes, J.  66, 69, 70, 71 ‘fragile democracies’  118–19 Franco, M.  141, 142 Fujimori, A.  10 Fux, Justice  86, 87

234  Index García, H.  57 Gargarella, R.  101 Geisel, E.  167 German Constitutional Court  69, 70 GINI index  53 Ginsburg, T.  5, 7, 8, 17, 18, 38, 150 Gonçalves, General  132, 133 Google  180, 183, 184, 196 Goulart, J.  30, 31, 165, 166 Guerra, M.  140 Guimarães, U.  40 guns, access to  151, 215–16 Habermas, J.  5, 42 Haggard, S.  151, 152, 172, 173, 174 Haidt, J.  194 Haiti MINUSTAH  152 hate speech  179, 180 Hayek, F.  56 Herzog, V.  47, 48, 134–5 Hidalgo, D.  146 Hirschl, R.  104, 123, 124 Hirschman, A.  55, 56 Hoffman, F.  74 Howard, M.  17, 215 Hungarian Constitutional Court  70 Huntington, S.  7, 66 Huq, A.  5, 7, 8, 17, 18, 150 ‘hypermedia political campaigns’  193 IACHR  46 IACtHR  46, 47, 48, 73 illicit act exclusion clause  97 impeachment  2, 110, 111, 112, 119, 120, 121, 122–3, 150, 204–5, 208–9 Czech Republic  120 Dilma Rousseff  206–8 Fernando Collor  205–6 Jair Bolsonaro   202, 209, 224, 225, 229 procedure  205 South Korea  121 United States  119–20, 225–6 India Aadhaar project  188 indigenous peoples   221, 222 inequality  58, 59, 74, 172, 224, 228 Institutional Security Cabinet (Gabinete de Segurança Institucional, GSI)  134, 136 instrumentarian power  186, 187 Inter-American Commission of Human Rights (IACHR)  46

Inter-American Court of Human Rights (IACtHR)  46, 47, 48, 73 Issacharoff, S.  118, 119, 120, 121, 122 Jaichand, V.  64, 65 Jefferson, T.  3 Jobim, N.  25 Johnson, A. 119 judicial review  124, 125, 126, 127, 161, 163, 208 judicialisation of politics  100, 104, 119, 126, 127 judiciary access to justice  210 accountability  81, 82, 83, 84, 91 application of constitutional principles  85–6 appointment of justices and judges  84–5 contradictions in decision-making  227 engagement in politics  80–81, 82 facilitating unstable constitutionalism  117, 118, 125 independence of  210 institutional guarantors of constitutions  118 judicial rulings violating constitutional and statutory dispositions  103, 104 lack of judicial reform  82, 83, 84, 127 moderating power  154, 168, 169, 170, 171, 175 not confronting the executive decisions of the dictatorship  101 personal characteristics  85 politicisation of judiciary  123, 125 public confidence in the courts  84 remuneration  80, 82, 83, 84, 86, 87, 88 role of the judiciary in the design of the 1988 Constitution  82, 83, 168 TV Justiça  127 ‘juridical caste’  88 ‘juristocracy’  61, 123, 124 Kaufman, R.  151, 152, 172, 173, 174 Kelsen, H.  161, 162 Khaitan, T.  228 Khosla, M.  125 Klare, K.  60, 61 Klaus, V.  120 Klug, H.  68 ‘knowledge gap hypothesis’  193 Koonings, K.  140, 159, 160 Koselleck, R.  160

Index  235 labour law  77 ‘law and order’ politicians  84 Lessing, B.  146 Levitsky, S.  12, 174, 191 liberal constitutionalism  217 Liberty, Accountability and Transparency on the Internet   197, 198 Lima, F.  168 line of succession for the presidency of the republic  107, 109 Lula da Silva, L. I.  2, 14, 24, 25, 76, 93, 94, 95, 96, 99, 115 imprisonment  116, 117, 118 media Bolsonaro’s relationship with  213–14 mega-politics  104, 105, 109, 110, 115, 123, 127, 169 Mello, P.  176, 177 Menaldo, V.  65, 140 Menke, C.  59 milícias  141, 142, 143, 144, 147, 153 characteristics of  143 ‘communitarian self-defence’  143 digital milícias  147–8, 151, 177 links with the state  142 origins of  129 political involvement of  145–6, 147 subverting the rule of law  153 undermining the constitutional project  129, 153 militarisation of politics  51 militarisation of public policy  148 militarisation of public security  139–41 militarisation of society  134 military  130, 133, 134 accountability for crimes against humanity  18, 224 armed forces’ protection of constitutional powers  43 civilian control of the military  51 civilian–military relationships  18, 19 co-opting  164, 165 ‘democracy’s guarantor’  155 Federal Supreme Court intervention  223 moderating power  154, 155, 160, 164, 165, 171, 172, 174, 175 national security  164, 167 participation in politics  132, 133, 135, 136, 137, 138, 139, 152, 153, 165, 166, 171, 226–7 prohibition of  132, 136

politicisation of  131 salaries  133 subverting the rule of law  153 undermining the constitutional project  129, 153 upholding the constitution  131 military coups  17–18, 166 military jurisdiction  18, 137 military police forces unlawful and unconstitutional practices of  143–4 Ministry of Defence  133, 134, 135 generals as head of  138, 139 Ministry of Human Rights  212 Ministry of Justice  211 minorities’ rights  213 MINUSTAH (United Nations Stabilisation Mission in Haiti)  152 moderating power  132, 156, 158, 159, 160, 161, 162, 163, 164, 166, 168, 172, 175, 203 Emperor  157, 158, 159, 160 judiciary  154, 168, 169, 170, 171, 175 military  154, 155, 160, 164, 165, 171, 172, 174, 175 Moore, M.  188 Moraes, Justice  112 Morais, L.  75 Moro, S.  14, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 116, 117, 139, 217, 229 appointment to President Bolsonaro’s cabinet  97 illicit act exclusion clause  97 Moura, N.  192 Mourão, General  31, 136, 200 Movimento Democrático Brasileiro (MDB)  203–4 multicultural politics  101 Myanmar military coup  229 National Congress tension with Bolsonaro  217 National Council of Justice  81, 83 National Intelligence Agency (Agência Brasileira de Inteligência, ABIN)  134 National Service on Information (Serviço Nacional de Informações, SNI)  42, 133 National Truth Commission (Comissão Nacional da Verdade, CNV)  25, 34, 49, 132–3, 135

236  Index ‘neo-constitutionalism’  170 neoliberalism  52, 55, 56, 57, 59, 60, 65, 75, 76, 77, 78, 185, 187 authoritarianism, and  57 network propaganda  189 Neves, A.  108, 109 Neves, T.  37 new technologies democracy, and  181–5 New York Times  192 Nóbrega, A.  144–5, 146 Nourse, V.  5 Odebrecht  10, 89, 98 Operation Car Wash (Operação Lava Jato)  89–90, 91, 92, 93, 95, 97, 98, 99, 100, 105, 106, 115, 223, 227, 229 Operation Radar (Operação Radar)  47 Paixão, C.  31 Pakistan judicialisation of politics  126 Palocci, A.  96 Papacharissi, Z.  182 parliamentarism  228–9 ‘parliamentary coup’  2 parliamentary system ‘superior to the presidential one, as’  30 Pech, L.  149 Pedro I, Emperor  157 pensions system  216–17 Pereira, A.  166, 167 Pérez-Liñan, A.  208, 209 Peru constitutional crisis  10–13 presidents, accusations of bribery against  10 questions of confidence  11, 12 Pistor, K.  58 political choices  192 political constructivism  35 political propaganda  214 Political Terror Scale (PTS)  51 populism  3, 185 Portella, P.   36 poverty  72, 73, 74 praetorianism  8, 152, 173 pre-trial detention  92, 93, 113, 115 presidential decrees  216 presumption of innocence  92, 96, 113, 114, 115, 116, 122

preventive detention  106 Prillaman, W.  83, 84 proportionality  100, 104, 114, 121–2 Prosecutor General of the Republic (Procurador-Geral da República)  210, 225 provisional measures (medidas provisórias)  100, 216 public demonstrations  178 public opinion  109 public security forces  130–31, 134 accountability  224 militarisation of public security  139–41 shared political ethos  131 see also military Quadros, J.  164–5 Queiroz, F.  145, 147 rachadinha  145 racism  71, 72 structural racism  73 ‘radical indifference’  186, 192 reciprocal amnesty  36 Recondo, F.  116–17 ‘regulated autoregulation’  198 reparations programmes  63 Repolês, M.  157, 158, 159, 161 repression  166, 167 res judicata  113 ‘resistance records’  143, 144, 145 Ribeiro, L.   109 Rice, R.  192, 193 Ríos-Figueroa, J.  18, 219 Roberts, H.  189, 190, 191 Roh Moo-hyun  121 Roldán, O.  12 Ros, L. de  87 Rosenfeld, M.  53, 159 Rosevear, E.  66 Rousseff, D.  2, 76, 86, 90, 94, 174, 229 impeachment  110–12, 150, 206–8 rule of law ‘backsliding of’  149 WJP Rule of Law Index  227 Runciman, D.  181 Saad-Filho, A.  75, 76 Sachs, A.  67, 68 Sarney, J.  37, 38, 40, 42, 132 Scheppele, K.  149 Schmitt, C.  4, 103, 161, 162

Index  237 Security in the Field (Segurança no Campo)  146–7 selective exposure theory  193 separation of powers  2, 25, 103, 104, 105, 111, 155 Shane, P.  5 Siddique, O.  126 Sikkink, K.  51 Silbey, J.  5 Skinner, B. F.  186 social constitutionalism  59, 124 social-democratic constitutionalism  75, 199, 201 social media  130, 131, 138, 141, 179, 183, 184, 185 addiction  184 authoritarianism, and  184 socio-economic rights  52, 53, 54, 55, 59, 61, 64, 71, 73, 74, 75, 76, 77, 78, 124, 125, 126 role of the courts  74, 75 South Africa  64, 65, 66, 67, 68, 69, 71, 78 Solicitor General of the Union  210, 211 Somin, I.  5 South Africa apartheid  64, 65 land distribution  63–4 reconciliation  67 socio-economic problems  66 socio-economic rights  64, 65, 66, 67, 68, 69, 71, 78 transitional constitutionalism  70 transplacement  66 South Korea impeachment  121 Souza, B.  158, 159 Souza, J.  88 Special Commission for People who Were Forcibly Disappeared or Killed for Political Reasons (Comissão Especial sobre Mortos e Desaparecidos Políticos, CEMDP)  25, 43, 46 Special Social Communication Secretariat (Secretaria Especial de Comunicação Social, SECOM)  214 Stenner, K.  194 Stepan, A.  141, 164, 165, 166, 173 structural discrimination  73 structural racism  73 structural violence  62, 63

Sunstein, C.  184 Supreme Command of the Revolution  31, 32 ‘supremocracy’  171 surveillance capitalism  183, 185–9, 198 suspension from office  11, 12, 109, 110 Taylor, C.  5 Taylor, M.  87 Teitel, R.  34, 35 Temer, M.  2–3, 77, 108, 135, 136, 137, 138 tension in Brazilian constitutionalism  22 Thailand coups  17 new constitution (2017)  17 ‘third wave of democracy’  7 Toffoli, Justice  28, 29, 139, 154 Torelly, M.  36 totalitarianism   163 transformative constitutionalism  60–62 law-based processes  61, 62 transformative justice  62–5 civil society movements’ engagement in  64 transitional constitutionalism  34, 35, 36, 37, 38, 39, 40, 41, 42, 51, 55, 75–6 South Africa  70 transitional justice  34, 36, 42, 43, 55, 62, 63, 64, 65 Transitory Constitutional Provisions Act (Ato das Disposições Constitucionais Transitórias, ADCT)  42 Tribe, L.  120 Trump. D.  119–20, 180, 225–6 truth commissions  63 Tufekci, Z.  189 Tunisia socio-economic rights and participation  65 Tushnet, M.  5, 125 TV Justiça  127 unconstitutional omissions  220 United Nations Stabilisation Mission in Haiti (MINUSTA H)  152 United States constitutional crises  4–5 impeachment 119–20 unstable constitutionalism  3, 104, 117, 118, 125, 126, 127, 128, 208 Urviola, O.  12 usury, criminalisation of  54

238  Index Vargas, G.   30, 162, 163, 164, 165 Vasconcellos, Z.  158 Veja  13 Viana, O.  160, 161 Vieira, O.  154, 155, 171 vigilante groups  84 Villas Bôas, General  14, 96, 110, 136 Vizcarra, M.  11, 12, 13 Vox  4

Weber, L.  116–17 WhatsApp  195, 196, 197 bulk messages  176, 177, 196 Whittington, K.  5 Witzel, W.  110, 140, 144 working-class participation in politics  101 World Justice Project Rule of Law Index  227 YouTube  192

‘weak democracy syndrome’  173–4, 175 institutionalisation  174 poor economic performance  174 praetorianism  173 weakening social boundaries hypothesis  193 Weber, Justice  115, 116, 195

Zavascki, Justice  105, 106, 107, 111 Zaverucha, J.  133, 134, 135 Zerbini, T.  35 Ziblatt, D.   174, 191 Zuboff, S.  182, 183, 185, 187