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 social-
democratic 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 pres-
sure 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 compara-
tive 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

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Constitutional Erosion
in Brazil

Emilio Peluso Neder Meyer

 HART PUBLISHING
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For Renata, Isabela and Guido.
 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 mourn-
ing 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 dif-
ficult 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 accumula-
tion 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
 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 politi-
cal 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 funda-
mental 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/links-
tematicos/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 defend-
ants, 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 presi-
dential system which followed a coalitional model,7 with a dangerously wide
spread of political parties.8 There was an attempt to finally subordinate the mili-
tary 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 adminis-
trations 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 far-
right 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 perma-
nent 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 situ-
ation 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 contrib-
ute 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 medi-
ate 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 prin-
ciples of constitutionalism can be revealed in crisis situations. To understand
such crises, it is vital to theorise about constitutional maintenance and endur-
ance. 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 excep-
tion. 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 opera-

tion 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 circum-
scribed 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 under-

stood 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 consti-

tutional crisis if the executive, for example, does not abide by the courts’
rulings. Keith Whittington referred to crises of operation and crises of fidel-
ity 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 consti-
tutional structure is no longer able to commit to the fundamental values of
democratic constitutionalism.
According to Mark Tushnet, persistent conflict does not equal a constitu-
tional 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 constitu-
tion 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 arche-
type. 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 main-
tained 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 compat-
ible 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 differ-
ent 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 respond-
ing 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 down-
playing 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, produc-
ing 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 repre-
sentation 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 differ-
ence 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 vis-

à-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 institu-

tions 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 prae-
torianism, 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 amend-
ments 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 opposi-
tion 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 lead-
ing 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 recur-
rent 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 author-
itarian backsliding (Haggard and Kaufman). The difference, however, can be
situated in the fact that constitutional erosion occurs on the level of constitu-
tional 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 consti-
tutional 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 uncon-
stitutional and illegal distortion of popular sovereignty in the digital era also
contribute to incremental destruction.28 That is why Tom Daly’s idea of demo-
cratic 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 constitu-
tional replacement in authoritarian environments can happen in crisis situations,
such as in Venezuela since 2017, constitutional amendments can indicate incre-
mental 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 constitu-
tional 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 demo-
cratic 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 unconstitu-
tional 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 consti-
tutions 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 perspec-
tive 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 await-
ing extradition. Alan García (2006–2011) committed suicide in April 2019 when
faced with imminent arrest. Ollanta Humala (2011–2016) was first impris-
oned 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 equiv-
alent 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 legis-
lative 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 cham-
ber 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 inten-
tion 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 nomina-
tions for the Constitutional Tribunal demanded transparency, especially where
they raised doubts about the honesty of the Congressmen. The legislative cham-
ber 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 objec-
tive 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 amend-
ment 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 constitution-
ality 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 identifica-
tion 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-minimiza-

nomeacao-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 constitu-
tional 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 tran-
sitioned 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 maga-
zine 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 dicta-
torship, 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 deci-
sive 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 cabi-
net. 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-bolsonaro-

who-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-comandante-

do-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 politi-
cal 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 authori-
tarian 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 reac-
tions from the Federal Supreme Court and the National Congress.51 Similarly
to his former American counterpart, Trump, Bolsonaro made frequent polemi-
cal 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 oppo-
nent 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-across-

brazil-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-decrees-

between-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-chief-

files-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/arti-
cle/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 jour-
nalists 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 participa-
tion 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 ideo-
logically 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-amazon-

and-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/brazils-

new-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-comissao-

de-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-pgr-

procuradores-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-minister-

says-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-brazil-

democracy-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 tran-
sitional justice policies, focusing on accountability and reforms that helped
to abolish the military’s jurisdiction and excluding its members from politi-
cal 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 informa-
tional 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 mili-
tary 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 human-
ity 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 extra-
judicial 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-coups-
occurred-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 jurisdic-
tions, 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 consti-
tutional 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 tran-
sitional justice process from the dictatorship of 1964–1985 to the democratic
period under the 1988 Constitution through the concept of ‘transitional consti-
tutionalism’. 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 constitu-
tionalism’ 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 situa-
tions in which judicial authorities failed to comply with the 1988 Constitution
and the American Convention on Human Rights to avoid questioning the insti-
tutional ‘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 constitu-
tional 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 under-
stand 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 socio-
economic 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 popu-
lation in Brazil, leading to the training of judges not prepared to deal with
Brazilian problems. More than that, those judges have not only made problem-
atic 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 mili-
tary 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 judi-
cial 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 civil-
ian 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 authori-
ties. 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 plat-
forms 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 revolu-
tion 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 central-
ity 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 essen-
tial 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 soci-
ology 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, measure-
ments, 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 influ-
ence 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 constitu-
tional 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 insti-
tutional 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 advance-
ments 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 consid-
erable 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 fundamen-
tal 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 repres-
sive 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-judiciario-

em-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 dicta-
torship, 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 crim-
inally 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 crea-
tion of the National Truth Commission (Comissão Nacional da Verdade, CNV)
he would have also pointed out that there was a difference between responsibil-
ity 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-detalha-

como-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 first-
level 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 consti-
tutionalism 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 dicta-
torship, 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 rela-
tionship 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 deterio-
ration 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-de-
que-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 reflec-
tion, 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 dictator-
ship 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-prefere-

chamar-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 criti-
cised 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 inva-
sion 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 investi-
gations 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-reservados-

circulos-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-claims-

of-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 consid-
ering 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 assem-
bly 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 constitu-
tional 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 constitu-
tional 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 mili-
tary 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 acces-
sible 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 tempo-
rarily. On 2 April 1964, the Supreme Command of the Revolution was created
(Comando Supremo da Revolução), chaired by the Army’s commander (self-
sworn 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 excep-
tional 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-que-

depos-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 expres-
sive 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 dispos-
sess 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 commu-
nist 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 restric-
tive 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 FranciscoCampos 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 nomi-
nated 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 proce-
dure was designed to produce artificial legitimacy.
However, it was felt that the 1967 Constitution was not sufficiently authori-
tarian. 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 tradi-
tional 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 institution-
alised 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 indige-
nous 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 consti-
tutional and juridical discourse was manipulated to provide legitimacy to the
dictatorship – what Pereira called ‘authoritarian legality’.37 However, the dicta-
torship started to crumble due to economic failure and the recurring national
and transnational denouncing of gross violations of human rights. A civil soci-
ety 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 execu-
tions 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 oppo-
nent 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 JHabermas, Time of Transitions (Cambridge, Polity, 2006) 304.

40 Teitel,
Transitional Justice (2000) 196.
41 Comissão Nacional da Verdade, Relatório: Volume I (Brasília, CNV, 2014) 33.
36 Transitional Constitutionalism

never be reciprocal in the sense of reaching both the opponents and the support-
ers 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 contro-
versial 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 transfor-
mation (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 move-
ments 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 propo-
nent) 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 civil-
ian 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 histori-
cal 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 differ-
ent 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 differ-
ent 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 arti-
cles 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 politi-
cal 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 amend-
ment 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 norma-
tive 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 politi-
cal persecution should be a reference for the new standard of amnesty. Second,
in a subordinated provision, it grants amnesty to those who committed politi-
cal 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 serv-
ant 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 democratisa-
tion which partially failed in 1979 and throughout the 1980s were profoundly
deepened in the constituent process of 1987–1988.50 There were 559 constitu-
ent 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 commit-
tee, 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 regu-
lated amnesty. After public criticism between the Minister of the Army General

50 ‘The Brazilian constitutional convention was characterised by extraordinary public involve-

ment, 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 typi-
cal 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 judici-
ary 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 constit-

uent 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 repre-
sentatives, 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 side-
line 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 repara-
tions proposal, defining the responsibility of the state for violations committed
against the dictatorship’s oppositional military and civilians. There was a nota-
ble 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 repara-
tions 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 repara-
tions tone.55 The provision follows Constitutional Amendment 26 of 1985 by
stating that only those who were affected by the institutional and complemen-
tary 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 demo-
cratic 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 inser-
tion 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 ‘demo-
cratic 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 inter-
national 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-mandato-
de-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 omis-
sion. 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 interfer-
ence 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 provi-
sional 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 tran-
sitional 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-e-
desaparecidos-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 commu-
nities 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 concen-
trated 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 constitu-
tion 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-ministro-

do-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 mili-
tary 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 prob-
ably 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-araguaia-
na-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 circum-
stances 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 commis-
sion 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 proce-
dures, 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, psycho-
logical 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 disappear-
ances 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 judici-
ary. 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 prem-
ises 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-ustra-
torturador-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 dictatorship-
era 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 judi-
cial 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 organi-
sations 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 dictator-
ship. 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 crimi-

nal matters of the Federal Prosecutors Office deliberated that they could not
simply ignore the 2010 Gomes Lund ruling: firstly, because in omitting them-
selves, 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, subse-
quently, 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 recom-
mendations 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 insti-
tutional 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 disappear-
ance, 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 deliv-
ered 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 human-
ity 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/paginador-
pub/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–mili-

tary 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 mili-
tary 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 popula-
tion. Murders, disappearances and torture are a common part of life. Despite
its generality, on this level, terror affects those who interest themselves in poli-
tics 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 lower-
ing 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 occa-
sions, 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 design-
ing 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 consti-
tutionalism. 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 identi-
ties 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 inter-
act 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 bene-
fit) 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 popula-
tion 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 inter-
national 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/World-

Social-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-diz-
relatorio-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 commis-
sions 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 para-
graph 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 conceptu-
alisation. 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 norma-
tive 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 deci-
sion 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/pagi-

nador.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 tran-
sitional 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 illus-
trate 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 compara-
tive 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 authori-
tarianism, 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 authoritarian-
ism. 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’), intrac-
table 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 prob-
lems, 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 concep-
tions 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 character-
ised 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 repre-
sentative democracy, an element that neoliberalism shares with fascism and, for
some, with populism.14 Hayek develops an analysis of contemporary democ-
racy, 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 representa-
tive 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 neolib-

eral 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 constitution-
alise 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 consul-
tation 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 politi-
cal 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-bolsonaro-

mantem-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 advo-
cate 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 constitu-
tions 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/debureaucratization-
or-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 politi-
cal powers by authorities. Additionally, constitutions democratically reorganise
political power, enfranchising all subjects with political participation in an egal-
itarian 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 revo-
lutionary 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 subjec-
tive 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 compul-
sory 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 deci-
sion 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 mech-

anisms 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 neoliberal-

ism 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 domi-
nance 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 authori-
tarianism 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 coun-
tries 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 possi-
bility 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 constitu-

tionalism 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 multicultural-
ism 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 demo-
cratic 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 occu-
pied 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 inter-
pretative 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, espe-
cially 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 benefi-
ciaries, 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 top-
down 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 ‘inher-
ently 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 inves-
tigation 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 redis-
tribution. The result is that around 85 per cent of ownership remains with the

39 Evans,‘Structural Violence’ (2016) 4.

40 Inthe 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 institu-
tional 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 socio-
economic character.43 One crucial piece of data Jaichand highlights is the
decision of the South African National Truth Commission to exclude socio-
economic 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-proceso-
de-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 precon-
ceived 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 command-
ing politics in the future. Of course, these kinds of transitions will also have
limited effect in exercising political and civil rights. The idea of interconnectiv-
ity 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 nego-
tiation, 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 partici-
pation. 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-and-
countries/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 schol-
ars 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 govern-
ment 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 rela-
tive 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 under-
employed 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 princi-
ples. 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 discrim-
ination and its harmful results for economic inequality. Context-dependent
variants would lead Sachs to the conclusion that a Bill of Rights encompass-
ing 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 dimen-
sions 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 effective-
ness became subject to a growing impatience generated by the gross levels of
inequality in the country. The absence of adequate public services, corrup-
tion 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 overcom-
ing 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 constitu-
tional 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 relo-
cated 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 socio-
economic rights was in Soobramoney, in which the Court ruled that health
services granted to a chronic disease patient by the state were not unreason-
able, 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 poli-
cies. 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 socio-
economic 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 argu-
ments 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 situa-
tions 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 explic-
itly 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 them-
selves 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 auto-
affirmation 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 domi-
nant 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 humani-
tarian 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 excep-
tions would be the substitution of then judiciary’s highest court, the Appellate
Division, formed by apartheid judges, by a constitutional court and the exten-
sion 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 discrimi-
nating 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 democ-
racy, 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 contrib-
uted 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 popu-
lation, 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 system-
atically 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 insti-
tutional, 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 struc-
ture 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 discrimina-
tion 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 propor-
tional 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 instal-
ment 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 econ-
omy, 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 over-
came 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 grow-
ing 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 grow-
ing 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 differen-
tiate 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 social-
democratic 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 exploi-
tation, 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 educa-
tion 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) poli-
tics 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 trans-
fer, 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 govern-
ments’ 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 ortho-
dox 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 constitu-
tional 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 sala-
ries 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 dimin-
ished 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, stimulat-
ing 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-e-

o-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/santos-

homem-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-minas-

tem-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 enforce-
ment 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 chap-
ter 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-parles-
monsieur-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-por-

desacato-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/a-

corrupcao-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-do-
jaburu.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 presi-
dency 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 account-
ability 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 over-
sight. 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 presi-
dent 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 cooper-
ated 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 relation-
ship 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 data-
bases, 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 institu-
tion 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 guar-
antee 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 trans-
forming 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 judi-
cial 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 respon-
sible 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 pres-

sures 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, ques-
tions 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 judi-
cial 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 auton-
omy 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 accusa-
tions of nepotism through a binding ruling in 2008.22 In 1999, judges prompted
work stoppages against a senatorial decision to start an investigation on corrup-
tion 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 slow-
ness 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 presi-
dent 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 scan-
dalous: 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 two-
thirds 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-condenar-
reu-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 supe-
rior courts and prosecutors received the housing benefits, there was a violation
of the constitutional norm of equality. Justice Luiz Fux was the lawsuit rappor-
teur. 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/lewandowski-

obtem-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-caro-

e-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-sanciona-

sem-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 admin-
istration – 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 administra-
tion. 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 constitu-
tional ceilings for all salaries and subsidies of public servants in Brazil. That
increase transformed Justice Luiz Fux’s legal mind: now, he should use anti-
foundational (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 gener-
ate 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-auxilio-

moradia-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 judici-
ary 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 coun-
try 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 juridi-
cal 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 corpo-
ratist 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 subse-
quently 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, investi-
gated 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 laun-
dry 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 imprison-
ments 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 condi-
tions 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 systema-
tising 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 subsi-
dise 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-dilma-

rousseff-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-impeachment-
dilma-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-rousseff-
impeachment.
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-brazilian-

senator-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-rousseff-

plot-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 remark-
able, 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 infor-
mation to media outlets. This information amplified the construction of
common enemies, the polarisation of politics and the space for ‘new’ propos-
als. 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 character-

istics 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-sobre-
indicacao-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-lula-
de-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 auxil-
iary 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 judi-
cial 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 advo-
cated 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 atten-
tion. 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-duram-

media-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 negoti-
ating 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 publi-
cation 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.plan-
alto.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/fausto-
macedo/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-proof-

guilt-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/pagina-

dorpub/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 wire-
tapping 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 regard-
ing 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-documento-

que-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 unconsti-
tutionality 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 inter-
nal 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 criti-
cised 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 unprec-
edented 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 posi-
tion 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 elec-
tions, 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 proce-
dures. 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-da-
lava-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-jailed-

leader-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-depoimento-

por-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 ‘anti-
crime package’, a bill that would have, among other measures, like increasing
sentences, created an ‘illicit act exclusion clause’. Incorporating Bolsonaro’s far-
right 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 ideo-
logical, 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, gener-
ally, 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, minis-
ters 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/2020-

ago-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/moros-

anticrime-package-reproduces-unconstitutional-ineffective-solutions.
76 F Cássio and M Bueno Filho, ‘“Professor” de Jair, Paulo Guedes é o mais bolsonarista dos minis-

tros’, 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 above-
mentioned 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 signifi-
cant 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 accusa-
tory 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 ofEthics’, 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/cnmp-
adia-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 shadow-
ing 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 conse-
quences: 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: luisrobertobar-

roso.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 para-

digmas 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-eleicoes-

oposicao-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-depoimento-

em-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 demonstrat-

ing 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 indepen-
dently 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 industri-
ally 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-habeas-

data-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 authori-
tarian past in which it lived was at stake. Brazilian judges, especially the ones
appointed by the military regime, cooperated by not confronting the execu-
tive 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 consti-
tutionalism – 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 democ-
racy is still something to be achieved appropriately in the future.
The lack of legitimacy for diverse parts of judicial adjudication has perni-
cious 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 constitution-

ality 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 decision-
making 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 excep-
tion, 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 consti-
tutional 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 continu-
ously and there are disputes regarding the appropriate arrangements for con-
stitutional 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 constitu-
tional 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 behav-
iours 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 minori-
ties 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-custa-
aceitar-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 read-
ing 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 simi-
lar 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/noticianotici-

astf/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-court-
corruption-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 insti-
tutions 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-the-
leading-role-of-the-federal-supreme-court.
106 Judges and Courts Destabilising Constitutionalism

second panel would affirm Zavascki’s provisional ruling. Justice Zavascki justi-
fied 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, some-
thing 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 infrac-
tions 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 non-
bailable. 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 possi-
ble 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 crimi-
nal 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 exer-
cising 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 addi-
tional 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 contrib-
uted 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 injunc-
tion 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/proces-

sos/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 prec-
edents 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 require-
ments 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-rejects-

corruption-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-deputado-

pedidos-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 caution-
ary 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 parliamen-
tary 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 suspend-
ing 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 constitu-
tionally adequate interpretation. Of course, there are problems of institutional
design here, as Arguelhes and Ribeiro already pointed out against the indi-
vidual 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/proces-

sos/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 presen-
cial 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 permis-
sion 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 great-
est challenge was that the ruling was taken by a single justice – even though the
Court ratified it afterwards. Although there was previous jurisprudence allow-
ing 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 parliamen-
tary 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, verfas-
sungsblog.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 prosecu-
tion 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 muta-
ble 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/sobrest-

fconhecastfjulgamentohistorico/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 protec-
tion 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 (discuss-
ing 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 funda-
mental 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 consti-
tutions 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 innova-
tions 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 condem-
nation 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 interpreta-
tion 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 viola-
tion 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 norma-
tive 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 innova-
tions 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 major-
ity 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 soci-
ety 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 non-
appealable 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 constitu-
tional 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 conserva-
tive 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 then-
Federal 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 presump-
tion 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 presi-
dential election polls.41
The Federal Supreme Court’s internal politics for setting the dock of judg-
ment 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-lula-
maioria-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 meet-
ing. 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 prac-
ticed, 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, estati-

cog1.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 presi-
dency 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 barri-
ers, 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-apos-
gebran-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 authoritar-
ian 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 poli-
tics, 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 illumi-
nated 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 misde-
meanors’, 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 begin-
ning. In Clinton’s situation, ‘perjurious, false and misleading testimony’ and
‘obstructing justice’ would have not only a juridical character, but also a crimi-
nal 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 constitu-
tional 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 qualifica-
tion 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 politi-
cised 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 author-
ised by the Chamber of Deputies, though the president is impeached by the
Senate and, finally, tried by the Constitutional Court. Weighing aspects of possi-
ble 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/house-

resolution/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 politi-
cal 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 presiden-
tial 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 guar-
antee 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 execu-
tive 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 emer-
gence 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 opposi-
tion to the previous authoritarian regimes. Plus, from a comparative point of
view, the German example also offers reasons for concern: the proportional-
ity 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 elec-
tions 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 require-
ments 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 inter-
nal 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 juristoc-
racy 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 forma-
tion of the judicial branch. But this challenge has been recently reinforced
extraordinarily, mostly with the support of the same actors interested in chang-
ing 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 reconstruc-

tion 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 tran-
sition 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 constitu-
tional 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 fundamen-
tal 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 anticipa-
tion 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 admin-
istration 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, judg-

ment 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, argu-
ing 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 institu-
tional 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 ‘pro-
constitutionalisation’ 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 separa-
tion 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, judg-
ment 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 authori-

ties 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 institu-
tions 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 stabi-
lise 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 – some-
thing that the Federal Supreme Court had constantly done throughout the 1988
constitutionalism, and even before that.81 As in Brazil, the excessive judicialisa-
tion 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 broad-
cast 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 differ-
ent political circumstances is blatant.
Despite the fact that the 1988 Constitution made room for a ground-
breaking democratic society, threats to democracy returned in an astonishing
way, through the collaboration of courts and judges. In the end, Brazilian tran-
sitional 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 constitu-
tionalism. Beyond that, there are institutions, such as the National Council of
Justice, that could cooperate in fulfilling their constitutional judicial account-
ability 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 insti-
tutional 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 quan-
titative 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 legiti-
mate 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 consti-
tutional 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 presup-
pose 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 elec-
tions, 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 tradi-
tional 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 cooper-
ation, 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 ‘coup-
cast’ (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 civil-
ian 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 partici-
pation 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 rela-
tion 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 exces-
sive 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 politi-
cal 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-aponta-

que-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-caem-

em-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 elimina-
tion 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 disas-
ters, 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 dictator-
ship) 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 consti-
tutional 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-no-

governo-sarney-16354584.
 The Military in Brazilian Post-1988 Democracy 133

Commission, which investigated the crimes perpetrated during the dictator-

ship 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 then-
clandestine 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 termi-
nated in 1990, during President Fernando Collor’s term (1990–1992).13 The
National Information Service had amassed voluminous records on private citi-
zens that supposedly posed problems to the regime.
During President Fernando Henrique Cardoso’s (FHC) administration
(1995–2002), the military gained more institutional prominence. After present-
ing 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 sala-
ries 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 expan-
sion to avoid a public demonstration that would gather 155 generals.16
An additional reason for the general’s insubordinate behaviour was the crea-
tion 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 consti-
tutional 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 insubor-
dination 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 civil-
ian 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 mili-
tary 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 subordina-
tion, 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 publica-
tion 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 ‘interna-
tional 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 presi-
dency, 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 investiga-
tion, persecution and trial of such violations. The first recommendation of the
Commission was that the armed forces should publicly recognise their institu-
tional 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 vice-
president 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 engag-
ing in public political demonstrations.30 As an active member of the military
himself, he publicly defended ‘military interference’ for isolating political repre-
sentatives 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 candi-
dates 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-areas-

sensiveis-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-aqui-
diz-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 situa-
tions 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, nominat-
ing General Walter Braga to lead the operation.33 Measures such as ‘collective
warrants’, which involved searching streets and houses in the same neighbour-
hood, 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 mili-
tares 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-militares-
precisam-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 politi-
cal 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 politi-
cal 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 responsi-
bility 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/militares-

eleitos-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 posi-
tions, with military with close ideological ties to the Bolsonaro Government.
Interestingly, the move had clientelist features close to what comparative popu-
list 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 civil-
ian. 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, deep-
ening 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-de-

surpresa-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 oper-
ate 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 govern-
ment 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 gover-
nors 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 poli-
cies. 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-more-

than-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-utilizados-

so-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 differ-
ent 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 secu-
rity. 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 democ-
ratisation 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 fail-
ures 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 elec-
tion 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 defend-
ants 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 proce-
dure 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-abre-
processo-contra-desembargadora-que-atacou-marielle-e-ofendeu-professora). None of the proce-
dures, 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 impor-
tance 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 extraju-
dicial 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-violence-

bolsonaro-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 inhabit-
ants 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 hospi-
tals 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 opposi-
tion 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 simpli-
fied 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 anony-
mous 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-do-

estado-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 legis-
lature 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 suppos-
edly 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 admin-
istrative 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 repre-
sentative 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 scru-
tinised 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-francos-

killed-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-de-

desabamento-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 prob-
lem, 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 organi-
sation 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-milicia-

carioca.
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 interfer-
ence. 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 coun-
try house that was owned by a Bolsonaro family attorney.80 President Bolsonaro
experienced an exceptional political silence and an approach to centrist politi-
cal 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/reportagens-

especiais/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-health-

coronavirus-bolsonaro/brazils-bolsonaro-headlines-anti-democratic-rally-amid-alarm-over-handling-of-virus-
idUSKBN22F0TQ.
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-preliminar-
por-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 espe-
cially 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 compa-
nies 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 under-
mining 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 tradi-
tional 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-depoimento-
do-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-supporters-
attacks-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 struc-
tures 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 manipula-
tion 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-is-
tied-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, predict-
ability 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 snip-
ers 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 take-
over 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 incremen-
tal 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 constitu-
tional 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 unconstitu-
tional 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 uncontro-
verted 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-for-

silencing-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-um-

ano-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/guns-
brazil-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 hypoth-
esis 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 prob-
lematic 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 constitution-
ally 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 reorganisa-
tion 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 mod-
erating 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-do-

judiciario-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 revision-
ists 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 meas-
ures 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 separa-
tion 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-depend-
on-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-bolsonarism-
the-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 demo-
cratic 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 impor-
tance 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 moder-
ating 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 publi-

cation, 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 docu-
ment. It defined this power as the key of all political organisation, the Emperor
being its unique representative and having the role of maintaining independ-
ence, 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 prob-
ability 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, equilí-
brio 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 writ-
ings 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 scep-
tical 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 constitu-
tional 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 extra-
institutionally 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 politi-
cal 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 consti-
tutional 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 tripar-
tite 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 poli-
tics 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 correspond-
ing 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 main-
tained. 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 ‘senti-
ment 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 politi-
cal 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 administra-
tive 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 impu-
nity 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 democ-
racy 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 irra-
tional 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 revolu-
tion 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 parlia-
ments 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 eradi-
cating the judicial or constitutional review function, the 1937 Constitution
provided that a judicial ruling that invalidated a statute could be declared with-
out 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’ deploy-
ment 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 interfer-
ence 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 configura-
tion is in tension with the fact that these societies saw themselves as part of a
‘civilised West’, where parliamentary liberal institutions had to lead develop-
ment. 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 moder-
ating 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 moderat-
ing 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 mili-
tary 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.

46 A Stepan, Os Militares na Política, Í Tronca (trans) (Rio de Janeiro, Artenova 1975) 50.
47 ibid, 52.
 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 them-
selves, at least in his opinion.48 He remembers that the 1891, 1934 and 1946
Constitutions all contained the normative phrase that stipulated that the mili-
tary 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 interpre-
tation 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 presi-
dency 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 defend-
ing the right of Juscelino Kubitschek, the elected president, to take office.
As the Brazilian historian José Murilo de Carvalho described, different ideol-
ogies 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 presi-
dency 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 profes-
sionalised 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 tradi-
tional 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, convic-
tions 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 concep-
tion 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 guaran-
tees of independence, such as the impossibility of removal and the reduction of
salaries. However, this seemed to be enough to curb any initial judicial rebel-
lion. 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 Bythe 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 tribu-
nals, 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 tribu-
nals 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 mili-

tar’ (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 high-
lights, 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 analy-
ses). 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 avoid-
ing 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 post-
positivism 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 enlight-
ened vanguard, pushing history forward when it is blocked.64 Under such a
thesis, some important Federal Supreme Court rulings would not be the confir-
mation 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, prec-
edents), 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 poli-
tics. 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 presi-
dency, 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 contro-
versial. 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, control-
ling 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 grow-
ing 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 prob-
lem. 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 volunta-

rist 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 moder-
ating 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 commit-
ment 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 tran-
sition 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 rever-

sions 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 particu-
larly 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 praetori-
anism 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 over-
sight. 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 democ-
racy 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 perfor-
mance. 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, gener-
ate 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 func-
tion 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 persis-
tence 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 politi-
cal 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 con-
ceptualised by Shoshana Zuboff.1 These theoretical elements provide a way of
understanding how political propaganda is affected by network sharing infor-
mation. The chapter then debates how fake news and disinformation can influ-
ence political decisions by supposedly autonomous citizens. The impact of new
technologies in recent elections in Brazil provides a case study. Finally, the pro-
visional 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 automa-
tion 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-massivo-
ilegal-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-o-

pt-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 elec-
tion. 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-com-

cpf-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-cassacao-

chapa-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-identificar-
autor-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/tse-
permite-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 crea-
tion 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 shar-
ing, 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-the-
leading-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-folha-

reporter-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-quarterly-

analysis-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 unlaw-
ful 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 digi-
tal 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 unreg-
ulated 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-outsourcing-
the-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 constitu-
tional 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 demo-

cratic 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 constitu-
tional 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 persuad-
able 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 elec-
toral 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 chan-

nel 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 auto-
mation 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 constitu-
tionalism. 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 consti-
tutional 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 democ-
racy 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 them-
selves 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 techno-
logical 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 capitali-
sation 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 advan-
tages 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 connec-
tions 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 indi-
viduals continuously challenge the public agenda. Finally, access to information
does not allow for effective access. There is also a concern that online conversa-
tions 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 civili-

zation’ (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 accept-
able. 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 surveil-
lance 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, commer-
cial, 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 quali-
fied as an extraction: a one-way process that transforms users from subjects
into objects that can be commodified and monetised. The way those compa-
nies 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 exer-
cise 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 democ-
racy 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 cham-
bers, 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-copies-

gambling-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 automati-
cally 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 unprece-
dented 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 constitutional-
ism 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 unimagi-
nable 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 disposses-
sion to extract more data from users. That cycle includes methods of incursion,
habituation, adaptation and the redirection of companies’ practices for dispos-
sessing 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 behav-
iour 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 scien-
tific 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 imag-
ined 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 connec-
tion 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 popu-
list 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 presi-
dential 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 solu-
tions 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 neolib-
eralism: 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-to-
democracy-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 main-
tain 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 comprehen-
sive 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 state-
level 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’, claim-
ing 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 back-
pedalling 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 compu-
tational 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 analy-
sis and begin to categorise people. ‘Likes’ on Facebook can help define a series
of personal characteristics that are available, through data brokers, to whom-
ever 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 contex-
tual 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-bolsonaro-

lei-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 tech-
nocratic 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 news-
papers 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 radicalisa-
tion 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 mili-
tary, 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 technolo-
gies 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 inva-
sive 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 presiden-
tial 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 microtarget-
ing. 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 diagno-
sis 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 infor-
mation 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 right-
ist 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-rox-

bernardo-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-influencia-

do-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 deci-
sions, 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 expo-
sure 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 knowl-
edge 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 weaken-
ing 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 infor-
mation. 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 commu-
nication 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 contra-
dict 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 authoritar-
ian 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 clas-
sified in three ways: the laissez-faire conservatives, the status quo conservatives
and the authoritarians. There are no significant problems related to plural-
ism 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 contempo-
rary 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 authoritar-
ian 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 stud-
ies 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 consult-
ants 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 influ-
ence 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-mantem-

disparos-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/brazil-

election-fake-news-whatsapp.html.
196 Digital Constitutionalism

and Google had become entangled in campaigns to avoid the spread of misin-
formation, the same did not happen to the encrypted mechanism of WhatsApp,
which allowed for chat groups of up to 256 people. Pyramid and network strate-
gies 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 deliv-
ered 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 presi-
dential 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 posi-
tions 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 compe-
tences 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 strength-
ening 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 public-
ity 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 autoregula-
tion 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 acci-
dentally 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 compa-
nies 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 func-
tions 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 differ-
ent storms and even through a continuous amendment process. Its main struc-
ture 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 digi-
tal 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 constitu-
tional 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 institu-
tions 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 concep-
tion 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 consti-
tution 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-tem-

de-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-bolsonaro-

defende-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 Civil-

Military 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 consti-
tutionalism created by it.
Analysts have divided political support for Bolsonaro’s Government into
ideological and military sources.8 Ideological sources include people influ-
enced 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 demon-
strated in fighting COVID-19 pandemic. Bolsonaro’s actions are based on fierce
and unnecessary political disputes. Such confusion is seen as a way of govern-
ing, 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 infec-
tious 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 hydroxy-
chloroquine 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-enquadrar-

filho-que-reabre-crise-com-mourao.shtml.
9 M Nobre, ‘O Caos Como Método’, Piauí, April 2019, piaui.folha.uol.com.br/materia/o-caos-

como-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-off-

brazil-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-autoridades-
brasileiras-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 presi-
dential 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 govern-
ments have maintained in Brazil over the past 30 years.
Only a threat to his political survival made Bolsonaro comply with the politi-
cal 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 behav-
iour was accomplished, however, with changes made by congressmen and not by
the president. In 2020, Constitutional Amendment 100 altered the way repre-
sentatives 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 parliamen-
tary representatives.13 Before he could attempt to deepen attacks on Brazilian
democracy, corruption scandals limited his behaviour. Interestingly, his popular-
ity grew amidst the concession of social benefits that had its values defined by
the very same National Congress. Through a combination of disastrous admin-
istration, 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-presidential-
regime-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 plebi-
scitarian 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 perpe-
trated 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 devel-
oped 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 distor-
tions (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 presi-
dent 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, patri-
monialism, 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 permis-
sion 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 corrup-
tion. 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 accusa-
tions 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 accord-
ance with the 1988 Constitution. Any citizen can make an accusation at the
Chamber of Deputies regarding an impeachable offence committed by the presi-
dent. 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 major-
ity of two-thirds of its members.
If it does so, the Federal Senate receives the procedure and must, accord-
ing 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 deci-
sion 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 parlia-
mentary 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 provi-
sional 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 execu-
tive 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 presi-
dential 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-dilma-

rousseff-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 accusa-

tion 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 produc-
ers 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 consid-
erations. 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 legisla-
tive 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 impeach-
ment 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 solu-
tion 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 strategi-
cally 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 impeach-
ment 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 demo-
cratic 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 rela-
tionship, 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 addi-
tional 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, main-
taining 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 presi-
dent 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 ibid355.
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 independ-

ence 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 cooper-
ate 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 minori-
ties’ 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 consum-
ers and penitentiary issues.
Jair Bolsonaro’s presidency promoted a real attack on the independ-
ence 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-do-
presidente.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 expres-
sion 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 polemi-
cal Bolsonaro aide, the former minister of education, from delivering a testimony
to the Federal Police.44 The Court rejected the petition. After Moro’s resigna-
tion, 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 justifi-
cation 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/ministro-

da-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/voto-

gilmar-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-to-

undermine-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 inspec-
tors, 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 govern-
ment 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 revi-
sionists 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 aggres-
sive 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-por-
revitimizar-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-court-
sends-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 trans-
forming 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 constitution-
alism 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 impor-
tant 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 jour-
nalists 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-bolsonaro-

is-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-participacao-

em-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-folha-

reporter-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-residence-

abuse-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 politi-
cal 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 adminis-
tration 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-expression-

similar-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-protest-
draws-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-inquerito-

colunista-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 suppos-
edly 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 surveil-
lance 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 free-
dom 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 influ-

ence, 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-decrees-

between-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 suspen-
sion 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 ordi-
nary 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/fachin-
aliquota-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 retroac-
tively. 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, modi-
fications 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 constitu-
tional 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 over-
turned by the National Congress.74
The enactment of Constitutional Amendment 100 widened the binding char-
acter 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 perma-
nent 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 execu-
tive 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-senado-

aprova-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 chan-
tageando 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-e-
abre-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 decen-
tralised 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 obliga-
tory 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 dedi-
cated 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/proces-

sos/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 chloro-
quine 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 respira-
tors 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 reve-
nues 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 under-
standing 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 omis-
sion 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 repre-
sentatives 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 propa-
ganda 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 adver-
tising 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 high-
lighted. 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 over-
rode 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/proces-

sos/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/tribunal-
internacional-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 situ-
ations, 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 meas-
ures 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-stf-
restringir-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 constitu-
tionalism 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 consti-
tutionalism. 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 divi-
sion 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 capac-
ity 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 show-
ing 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 exam-
ple, 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 repre-
sentative 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 govern-
ment 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 elec-
tions 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 chap-
ter 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 neigh-
bours. 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-com-

atencao-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 right-
wing 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 poli-
tics, 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 elec-
toral 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 posi-
tion 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 rela-
tion 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-law-

index/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 constitution-
alism, different political crisis enhanced the consequences of diverse politics that
only lightly promoted inclusion. From neoliberal politics that increased inequal-
ity 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 parliamen-
tarism 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 elit-
ist 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 pros-
ecutors 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 sympa-
thiser 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 mili-
tary 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-the-
bolsonaro-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/why-

replacing-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-not-

an-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-levanta-
sigilo-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-brazil-
lower-house-idUSKBN2A205V?il=0.
230
 Index
Abranches, S. 203, 209 ‘authoritarian legality’ 34
Abrão, P. 36 authoritarian predispositions 194, 195
Ackerman, B. 228, 229 authoritarianism 129, 130, 194
‘ad tech’ 180 competitive authoritarianism 7
Afonso da Silva, J. 41, 54 economics, and 55, 56, 60
agonistic pluralism 183 neoliberalism, and 57
Albert, R. 30, 77 social media, and 184
Albertus, M. 65, 140
Alexy, R. 114 Bandeirante Operation (Operação
Almeida, S. de 73 Bandeirante) 34
Alves, J. C. S. 142, 143, 144 Barbosa, R. 161
American Convention of Human Barroso, Justice 98–9, 114, 125, 170, 221, 222
Rights 45, 46, 47 Benkler, Y. 189, 190, 191
auto-amnesty laws incompatible with 47 Bentes, F. 74
amnesty 24, 25, 26, 38, 39, 44 Benvindo, J. 202
auto-amnesty laws incompatible with Bermeo, N. 215
American Convention of Human bias confirmation 184, 189
Rights 47 Biebricher, T. 56
‘bilateral’ amnesty 25 big data 181, 182, 183, 184, 189
civil society movements ‘bilateral’ amnesty 25
struggle for amnesty 35–6 Blount, J. 38
crimes against humanity Bolsonaro, E. 147
auto-amnesty of crimes against Bolsonaro, F. 145, 214, 215
humanity 44, 45 Bolsonaro, J. 3, 29, 75, 96, 97, 98, 99, 130,
domestic institutions, approach of 48–50 138, 139, 147, 155, 174, 178, 188,
debates 40 189, 190, 200
Feminine Movement for Amnesty 35 anti-truth discourse 179
reciprocal amnesty 36 attacking public universities 15
amnesty caravans (caravanas da anistia) 43–4 campaign for the presidency 14
Amnesty Commission 16, 43–4 capturing and dismantling state
criminal accountability 44 institutions 210–13, 214–15
Amnesty Law (1979) 36 COVID-19 pandemic 201, 217, 218, 221
‘connected crimes’ 36 elected as president 14, 15
Amorim, C. 135 electoral defeat, potential consequences
analytics companies 184, 191 of 226
Anderson, P. 91 executive orders 15, 16
anti-defection rules 122 impeachment, and 202, 209, 224, 225, 229
anti-terrorism measures 144 indigenous peoples 221
Araguaia Guerrilla War (Guerrilha do media, relationship with 213–14
Araguaia) 45–6, 134–5 military members of cabinet 15, 138–9
Aras, A. 99, 100 minorities’ rights 213
Arguelhes, D. 109 modified behaviour 202
austerity programmes 76, 77, 124, 125, 204 National Congress, tension with 217
authoritarian backsliding 151–2, 172, 215 national security crimes 225
authoritarian collapse 7, 8 plan to bomb barracks 13
232 Index

polemical utterances 15, 16 Colombia

political career 13, 14 socio-economic rights 64
political propaganda 214 ‘Commission of Intellectuals’ 82
political support for Bolsonaro’s communitarian constitutionalism 169
Government 201 ‘communitarian self-defence’ 143
politicising institutions 16–17 competitive authoritarianism 7
soldier, as a 13 concentrated wealth 185
support of the armed forces 17 Congressional Committee on Fake News
undermining constitutional norms 215 (Comissão Parlamentar Mista de
bourgeois constitution 59 Inquérito) 178
Brahm, Justice 26–7 congressional immunities 110
Brazilian Intelligence Agency (Agência Constant, B. 156–7
Brasileira de Inteligência, Constituent Assembly (1987–1988) 37,
ABIN) 214–15 38, 39
Brundidge, J. 192, 193 amnesty debates 40
bulk messages 176, 177, 196 drafting texts 39, 40
Bustamante, T. 207 structure and organisation of 39
Constitution (1967) 33
Campos, F. 32, 162, 163 Constitution (1988) 1–2, 40, 41, 42
Cano, I. 143, 144 fundamental rights 1–2
capitalism 58, 182, 184, 185 separation of powers 2, 25
digital capitalism 182 Constitutional Amendment 1 (1969) 33
surveillance capitalism 183, 185–9, 198 Constitutional Amendment 4 (1961) 30
capturing and dismantling state ‘campaign of legality’ 30, 31
institutions 210–13, 214–15 ‘juridical coup’ 30
Cardoso, F. H. 2, 43, 100, 134 repealed by Constitutional Amendment 6
Cardoso, General 134 (1963) 30
Cármen Lúcia, Justice 116–17 Constitutional Amendment 11 (1978) 35
Carvalho, A. 82, 83 Constitutional Amendment 26 (1985) 38, 44
Carvalho, J. 43, 165–6 amnesty 38–9, 44
Cattoni, M. 41 Constitutional Amendment 95 (2016) 77
Celeste, E. 181 ‘constitutional dismemberment’ 77
Celso de Mello, Justice 14, 44 constitutional crises 3, 4, 5, 6
CEMDP 25, 43, 46 acknowledging 6
Chan-ocha, General 17 dealing with 6
Chile United States 4–5
amnesty 26 Constitutional Court of Mongolia 119
civil–military relationship 27 constitutional democratic state 41, 42, 52
human rights violations 26, 27 constitutional emergency 4
Choudhry, S. 150 constitutional erosion 1, 7, 8, 9, 10, 226,
civil society movements 227, 229
struggle for amnesty 35–6 constitutional identity 5, 6, 7, 9, 19, 52, 53,
transformative justice 64 55, 181, 199, 223, 228
Claim of Breach of Fundamental Precept constitutional perpetuity 3–4
(Arguição de Descumprimento constitutional resilience 199, 223, 224,
de Preceito Fundamental, ADPF 228, 229
153) 24, 25, 26, 44, 50 COVID-19 pandemic
Clinton, B. 119 approaches to dealing with 217–19
coalitional presidentialism 202, 203 Bolsonaro, and 201, 217, 218, 221
collapse of democracies 7, 8 Federal Supreme Court 221, 222
Collor, F. 112 judge failing to wear mask 79
impeachment 205–6 review of incarceration measures 79–80
 Index 233

swearing ceremony for new Chief ‘distributive conflict model’ 172

Justice 79 Dominguez, M. 192
crimes against humanity Dresden, J. 17, 215
absence of criminal liability for 19, 50, 51
auto-amnesty 44, 45 echo chambers 184, 189, 190
domestic institutions, approach economic power 75, 102, 228
of 48–50 constitutions, and 58, 59, 60, 76
military accountability 18 education, right to 222
non-application of statute of educational institutions 212–13
limitations 48 elections 176, 178, 180, 183, 187, 191, 195,
criminal organisations 106 196, 228
culture secretariat 213 electoral propaganda 198
Cunha, E. 90, 106, 107, 109, 111 Elkins, Z. 38, 180
Curió, S. 45 emergency powers 4, 8
cyber-attacks on democracy 178 Emperor
cyber-bullying 178 moderating power 157, 158, 159, 160
Czech Republic environmental protection 212
impeachment 120 Etchegoyen, General 136
Evans, M. 62, 63, 64
Dallagnol, D. 98, 99 exceptional measures 106, 107
Daly, T. 9, 44, 45, 148, 169 executive powers
data protection 188–9, 197 expansion of 215
Death Caravan (Caravana de la Muerte) 27
Deibert, R. 183 Facebook 180, 184, 190, 191
deliberative democracy 58, 184 Fachin, Justice 222
democracies fake news 151, 177, 178, 180, 189–90, 193,
relationship with constitutions 179–80 195, 197, 198
democratic decay 9, 83, 148, 149 Family March with God for Freedom
democratic erosion 7, 8 (Marcha da Família com Deus pela
Diamond, J. 5 Liberdade) 31
dictatorship (1964–1985) Faris, R. 189, 190, 191
amnesty for crimes against humanity Favreto, Judge 117, 118
domestic institutions, approach ‘federal interference’ 137
of 48–50 Federal Supreme Court 44, 45, 219, 220,
‘authoritarian legality’ 34 221, 223
Bandeirante Operation 34 COVID-19 pandemic 221, 222, 227–8
celebrations and commemorations 28–9 indigenous peoples 221, 222
Constitution (1967) 33 military intervention 223
constitutional amendments 33 right to education 222
coup 28, 31 unconstitutional omissions 220
crimes against humanity federalism 219, 224
absence of criminal liability 50, 51 Feminine Movement for Amnesty (Movimento
government rewriting history 29 Feminino pela Anistia) 35
institutional acts 32, 33 Ferraz, O. 75
‘movement of 1964’ 28, 32 Finn, J. 3, 4
national security discourse 33 flagrante delicto 106, 110, 115
Supreme Command of the forced disappearances 25, 43, 46, 47, 50
Revolution 31, 32 Fowkes, J. 66, 69, 70, 71
digital capitalism 182 ‘fragile democracies’ 118–19
digital constitutionalism 181, 198 Franco, M. 141, 142
digital milícias 147–8, 151, 177 Fujimori, A. 10
digital misinformation 195, 196, 197, 198 Fux, Justice 86, 87
234 Index

García, H. 57 Inter-American Court of Human Rights

Gargarella, R. 101 (IACtHR) 46, 47, 48, 73
Geisel, E. 167 Issacharoff, S. 118, 119, 120, 121, 122
German Constitutional Court 69, 70
GINI index 53 Jaichand, V. 64, 65
Ginsburg, T. 5, 7, 8, 17, 18, 38, 150 Jefferson, T. 3
Gonçalves, General 132, 133 Jobim, N. 25
Google 180, 183, 184, 196 Johnson, A. 119
Goulart, J. 30, 31, 165, 166 judicial review 124, 125, 126, 127, 161,
Guerra, M. 140 163, 208
Guimarães, U. 40 judicialisation of politics 100, 104,
guns, access to 151, 215–16 119, 126, 127
judiciary
Habermas, J. 5, 42 access to justice 210
Haggard, S. 151, 152, 172, 173, 174 accountability 81, 82, 83, 84, 91
Haidt, J. 194 application of constitutional
Haiti principles 85–6
MINUSTAH 152 appointment of justices and judges 84–5
hate speech 179, 180 contradictions in decision-making 227
Hayek, F. 56 engagement in politics 80–81, 82
Herzog, V. 47, 48, 134–5 facilitating unstable constitutionalism 117,
Hidalgo, D. 146 118, 125
Hirschl, R. 104, 123, 124 independence of 210
Hirschman, A. 55, 56 institutional guarantors of
Hoffman, F. 74 constitutions 118
Howard, M. 17, 215 judicial rulings violating constitutional and
Hungarian Constitutional Court 70 statutory dispositions 103, 104
Huntington, S. 7, 66 lack of judicial reform 82, 83, 84, 127
Huq, A. 5, 7, 8, 17, 18, 150 moderating power 154, 168, 169, 170,
‘hypermedia political campaigns’ 193 171, 175
not confronting the executive decisions of
IACHR 46 the dictatorship 101
IACtHR 46, 47, 48, 73 personal characteristics 85
illicit act exclusion clause 97 politicisation of judiciary 123, 125
impeachment 2, 110, 111, 112, 119, 120, 121, public confidence in the courts 84
122–3, 150, 204–5, 208–9 remuneration 80, 82, 83, 84, 86,
Czech Republic 120 87, 88
Dilma Rousseff 206–8 role of the judiciary in the design of the
Fernando Collor 205–6 1988 Constitution 82, 83, 168
Jair Bolsonaro 202, 209, 224, 225, 229 TV Justiça 127
procedure 205 ‘juridical caste’ 88
South Korea 121 ‘juristocracy’ 61, 123, 124
United States 119–20, 225–6
India Kaufman, R. 151, 152, 172, 173, 174
Aadhaar project 188 Kelsen, H. 161, 162
indigenous peoples 221, 222 Khaitan, T. 228
inequality 58, 59, 74, 172, 224, 228 Khosla, M. 125
Institutional Security Cabinet (Gabinete de Klare, K. 60, 61
Segurança Institucional, Klaus, V. 120
GSI) 134, 136 Klug, H. 68
instrumentarian power 186, 187 ‘knowledge gap hypothesis’ 193
Inter-American Commission of Human Rights Koonings, K. 140, 159, 160
(IACHR) 46 Koselleck, R. 160
 Index 235

labour law 77 politicisation of 131

‘law and order’ politicians 84 salaries 133
Lessing, B. 146 subverting the rule of law 153
Levitsky, S. 12, 174, 191 undermining the constitutional
liberal constitutionalism 217 project 129, 153
Liberty, Accountability and Transparency upholding the constitution 131
on the Internet 197, 198 military coups 17–18, 166
Lima, F. 168 military jurisdiction 18, 137
line of succession for the presidency of the military police forces
republic 107, 109 unlawful and unconstitutional
Lula da Silva, L. I. 2, 14, 24, 25, 76, 93, 94, practices of 143–4
95, 96, 99, 115 Ministry of Defence 133, 134, 135
imprisonment 116, 117, 118 generals as head of 138, 139
Ministry of Human Rights 212
media Ministry of Justice 211
Bolsonaro’s relationship with 213–14 minorities’ rights 213
mega-politics 104, 105, 109, 110, 115, 123, MINUSTAH (United Nations Stabilisation
127, 169 Mission in Haiti) 152
Mello, P. 176, 177 moderating power 132, 156, 158, 159, 160,
Menaldo, V. 65, 140 161, 162, 163, 164, 166, 168, 172,
Menke, C. 59 175, 203
milícias 141, 142, 143, 144, 147, 153 Emperor 157, 158, 159, 160
characteristics of 143 judiciary 154, 168, 169, 170, 171, 175
‘communitarian self-defence’ 143 military 154, 155, 160, 164, 165, 171, 172,
digital milícias 147–8, 151, 177 174, 175
links with the state 142 Moore, M. 188
origins of 129 Moraes, Justice 112
political involvement of 145–6, 147 Morais, L. 75
subverting the rule of law 153 Moro, S. 14, 90, 91, 92, 93, 94, 95, 96, 97, 98,
undermining the constitutional 99, 116, 117, 139, 217, 229
project 129, 153 appointment to President Bolsonaro’s
militarisation of politics 51 cabinet 97
militarisation of public policy 148 illicit act exclusion clause 97
militarisation of public security 139–41 Moura, N. 192
militarisation of society 134 Mourão, General 31, 136, 200
military 130, 133, 134 Movimento Democrático Brasileiro
accountability for crimes against (MDB) 203–4
humanity 18, 224 multicultural politics 101
armed forces’ protection of constitutional Myanmar
powers 43 military coup 229
civilian control of the military 51
civilian–military relationships 18, 19 National Congress
co-opting 164, 165 tension with Bolsonaro 217
‘democracy’s guarantor’ 155 National Council of Justice 81, 83
Federal Supreme Court National Intelligence Agency (Agência
intervention 223 Brasileira de Inteligência,
moderating power 154, 155, 160, 164, 165, ABIN) 134
171, 172, 174, 175 National Service on Information (Serviço
national security 164, 167 Nacional de Informações,
participation in politics 132, 133, 135, SNI) 42, 133
136, 137, 138, 139, 152, 153, 165, National Truth Commission (Comissão
166, 171, 226–7 Nacional da Verdade, CNV) 25,
prohibition of 132, 136 34, 49, 132–3, 135
236 Index

‘neo-constitutionalism’ 170 preventive detention 106

neoliberalism 52, 55, 56, 57, 59, 60, 65, 75, Prillaman, W. 83, 84
76, 77, 78, 185, 187 proportionality 100, 104, 114, 121–2
authoritarianism, and 57 Prosecutor General of the Republic
network propaganda 189 (Procurador-Geral da
Neves, A. 108, 109 República) 210, 225
Neves, T. 37 provisional measures (medidas
new technologies provisórias) 100, 216
democracy, and 181–5 public demonstrations 178
New York Times 192 public opinion 109
Nóbrega, A. 144–5, 146 public security forces 130–31, 134
Nourse, V. 5 accountability 224
militarisation of public security 139–41
Odebrecht 10, 89, 98 shared political ethos 131
Operation Car Wash (Operação see also military
Lava Jato) 89–90, 91, 92, 93, 95,
97, 98, 99, 100, 105, 106, 115, 223, Quadros, J. 164–5
227, 229 Queiroz, F. 145, 147
Operation Radar (Operação Radar) 47
rachadinha 145
Paixão, C. 31 racism 71, 72
Pakistan structural racism 73
judicialisation of politics 126 ‘radical indifference’ 186, 192
Palocci, A. 96 reciprocal amnesty 36
Papacharissi, Z. 182 Recondo, F. 116–17
parliamentarism 228–9 ‘regulated autoregulation’ 198
‘parliamentary coup’ 2 reparations programmes 63
parliamentary system Repolês, M. 157, 158, 159, 161
‘superior to the presidential one, as’ 30 repression 166, 167
Pech, L. 149 res judicata 113
Pedro I, Emperor 157 ‘resistance records’ 143, 144, 145
pensions system 216–17 Ribeiro, L. 109
Pereira, A. 166, 167 Rice, R. 192, 193
Pérez-Liñan, A. 208, 209 Ríos-Figueroa, J. 18, 219
Peru Roberts, H. 189, 190, 191
constitutional crisis 10–13 Roh Moo-hyun 121
presidents, accusations of bribery Roldán, O. 12
against 10 Ros, L. de 87
questions of confidence 11, 12 Rosenfeld, M. 53, 159
Pistor, K. 58 Rosevear, E. 66
political choices 192 Rousseff, D. 2, 76, 86, 90, 94, 174, 229
political constructivism 35 impeachment 110–12, 150, 206–8
political propaganda 214 rule of law
Political Terror Scale (PTS) 51 ‘backsliding of’ 149
populism 3, 185 WJP Rule of Law Index 227
Portella, P. 36 Runciman, D. 181
poverty 72, 73, 74
praetorianism 8, 152, 173 Saad-Filho, A. 75, 76
pre-trial detention 92, 93, 113, 115 Sachs, A. 67, 68
presidential decrees 216 Sarney, J. 37, 38, 40, 42, 132
presumption of innocence 92, 96, 113, 114, Scheppele, K. 149
115, 116, 122 Schmitt, C. 4, 103, 161, 162
 Index 237

Security in the Field (Segurança no Sunstein, C. 184

Campo) 146–7 Supreme Command of the Revolution 31, 32
selective exposure theory 193 ‘supremocracy’ 171
separation of powers 2, 25, 103, 104, 105, surveillance capitalism 183, 185–9, 198
111, 155 suspension from office 11, 12, 109, 110
Shane, P. 5
Siddique, O. 126 Taylor, C. 5
Sikkink, K. 51 Taylor, M. 87
Silbey, J. 5 Teitel, R. 34, 35
Skinner, B. F. 186 Temer, M. 2–3, 77, 108, 135, 136, 137, 138
social constitutionalism 59, 124 tension in Brazilian constitutionalism 22
social-democratic constitutionalism 75, Thailand
199, 201 coups 17
social media 130, 131, 138, 141, 179, 183, new constitution (2017) 17
184, 185 ‘third wave of democracy’ 7
addiction 184 Toffoli, Justice 28, 29, 139, 154
authoritarianism, and 184 Torelly, M. 36
socio-economic rights 52, 53, 54, 55, 59, 61, totalitarianism 163
64, 71, 73, 74, 75, 76, 77, 78, 124, transformative constitutionalism 60–62
125, 126 law-based processes 61, 62
role of the courts 74, 75 transformative justice 62–5
South Africa 64, 65, 66, 67, 68, 69, 71, 78 civil society movements’ engagement in 64
Solicitor General of the Union 210, 211 transitional constitutionalism 34, 35, 36,
Somin, I. 5 37, 38, 39, 40, 41, 42, 51,
South Africa 55, 75–6
apartheid 64, 65 South Africa 70
land distribution 63–4 transitional justice 34, 36, 42, 43, 55, 62,
reconciliation 67 63, 64, 65
socio-economic problems 66 Transitory Constitutional Provisions Act
socio-economic rights 64, 65, 66, 67, 68, (Ato das Disposições
69, 71, 78 Constitucionais Transitórias,
transitional constitutionalism 70 ADCT) 42
transplacement 66 Tribe, L. 120
South Korea Trump. D. 119–20, 180, 225–6
impeachment 121 truth commissions 63
Souza, B. 158, 159 Tufekci, Z. 189
Souza, J. 88 Tunisia
Special Commission for People who socio-economic rights and
Were Forcibly Disappeared or participation 65
Killed for Political Reasons Tushnet, M. 5, 125
(Comissão Especial sobre Mortos TV Justiça 127
e Desaparecidos Políticos,
CEMDP) 25, 43, 46 unconstitutional omissions 220
Special Social Communication United Nations Stabilisation Mission in Haiti
Secretariat (Secretaria Especial (MINUSTA H) 152
de Comunicação Social, United States
SECOM) 214 constitutional crises 4–5
Stenner, K. 194 impeachment 119–20
Stepan, A. 141, 164, 165, 166, 173 unstable constitutionalism 3, 104, 117, 118,
structural discrimination 73 125, 126, 127, 128, 208
structural racism 73 Urviola, O. 12
structural violence 62, 63 usury, criminalisation of 54
238 Index

Vargas, G. 30, 162, 163, 164, 165 Weber, L. 116–17

Vasconcellos, Z. 158 WhatsApp 195, 196, 197
Veja 13 bulk messages 176, 177, 196
Viana, O. 160, 161 Whittington, K. 5
Vieira, O. 154, 155, 171 Witzel, W. 110, 140, 144
vigilante groups 84 working-class participation in politics 101
Villas Bôas, General 14, 96, 110, 136 World Justice Project
Vizcarra, M. 11, 12, 13 Rule of Law Index 227
Vox 4
YouTube 192
‘weak democracy syndrome’ 173–4, 175
institutionalisation 174 Zavascki, Justice 105, 106, 107, 111
poor economic performance 174 Zaverucha, J. 133, 134, 135
praetorianism 173 Zerbini, T. 35
weakening social boundaries hypothesis 193 Ziblatt, D. 174, 191
Weber, Justice 115, 116, 195 Zuboff, S. 182, 183, 185, 187