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Abusive Judicial Activism and Judicial Independence in Brazil

Juliano Zaiden Benvindo, University of Brasília

When delivering his speech at the Brazilian Supreme Court on December 5 on “Public Ethics and Democracy,” Michael Sandel, Professor at Harvard University, could not foresee what was about to happen that very day just some floors above the conference room. Amid a rich debate on the role of ethics for the enhancement of democracies, Professor Sandel stressed that, as a foreign observer, he could at least point out something that in principle seemed very positive for Brazilian democracy despite the serious current political turmoil: how the judicial system has been working in an independent and effective way in the investigation of corruption.

Some hours after Sandel’s speech, Justice Marco Aurélio de Mello, in a unilateral decision, issued a preliminary order to remove Senate President Renan Calheiros from office based on embezzlement charges.[1] Justice Marco Aurélio de Mello’s action raises an interesting issue in light of Professor Sandel’s speech. Is it a sign of independence that Supreme Court Justices can remove the head of another branch of government from office in such circumstances? Or, on the contrary, is it a symptom of a dysfunctional democratic process that would allow individual justices to exercise such unfettered power? How can we assess whether such moves are legitimate or, rather, a form of what we might call abusive judicial activism?

The recent political crisis in Brazil has problematized basic concepts of constitutional democracy. This was the case with the impeachment of President Roussef: whether what took place was a legitimate procedure, a conspiracy, a kind of “abusive constitutionalism”[2] or a coup d’état is a subject that has since yielded significant worldwide consideration.[3] In the aftermath of that impeachment, a proposal for constitutional amendment by the new government that would radically curb public expenditure and thus affect the social core of the Brazilian constitution,[4] has also challenged the concept of constitutional amendment. Richard Albert has used this as an example of what he calls a “constitutional dismemberment.”[5]

The very concept of judicial independence is also at stake. If the Supreme Court has been dubbed the institutional arbiter of the current political turmoil by trying to pacify conflicts, which might justify its activism, it has nonetheless been engulfed by the same political dynamics in which it is supposed to be intervening. Daniel Vargas, Professor at the Getúlio Vargas Foundation in Rio de Janeiro, has argued, for instance, that the Brazilian Supreme Court is not the medicine but rather a symptom of a disease that has spread throughout Brazilian democracy: We, Brazilians, always resort to the Supreme Court whenever we need a political or economic decision, which shows that “Brazilian democracy bleeds more and more.”[6]

Justice Aurélio de Mello’s decision right after Professor Sandel’s speech is thereby not simply a sign of an independent judiciary that keeps its guard up even when the affected individual is the President of the Senate or, as happened some months before by the Court’s unanimous decision, the Speaker of the Lower House (who was ousted and then arrested on graft charges).[7] Nor is it merely a sign that the country has increasingly learned to tackle corruption through its judicial institutions. From a more structural perspective, it suggests self-aggrandizement of the judiciary’s own powers amid  deep distrust in the traditional mechanisms of political representation and democratic institutions. Judicial activism therefore increases as trust in democratic institutions declines. It is at least symbolic that Justice Marco Aurélio de Mello’s decision came out the day following popular protests demanding, among other things, the President of the Senate’s removal from office,[8] although the justice denied any relationship.[9]

Justice Marco Aurélio de Mello’s decision caused something of a backlash. The charges were serious, and several people argued that Senator Calheiros could not keep his post as Senate President after being indicted on charges of embezzlement, because, in such circumstance, he could not remain in the line of presidential succession according to the Constitution.[10] Senator Calheiros is however critically important for the new government’s proposals for constitutional change, especially because his Deputy President is from former President Roussef’s Worker’s Party and is therefore likely to oppose the reforms. Right after the decision, serious turmoil broke out, with the Senate resisting the ruling.[11] Distinct sectors of the government, Congress, and members of the Supreme Court promoted what seemed a negotiated solution to calm the situation.[12] Two days after Justice Marco Aurélio de Mello’s ruling, the majority of the Supreme Court decided that, although Senator Renan Calheiros would be removed from the line of succession, he could still remain Senate President.[13]

Professor Michael Sandel’s speech is remarkable in this context, not only because of the timing but also because its title – “Public Ethics and Democracy” – reminds us that things can look different when examined more closely. Beneath the appearance of independence of the Brazilian judicial system lie political strategies and behaviors that challenge both public ethics and democracy. Public ethics, because it is expected that judicial decisions should be the outcome of constitutionally motivated judgments rather than political bargains. Democracy, because judicial activism, practiced this way, can be not only a symptom of the disease of our democracy, as Daniel Vargas posits, but also an indicator of its political underpinnings.

Regardless of whether Justice Marco Aurélio de Mello’s decision was justified or unreasonable, calculated or unwise, every episode of this plot reveals how judicial activism can be used – to quote David Landau’s abusive constitutionalism – to “erode the democratic order”[14] for the sake of a political strategy, and thus as a sort of abusive judicial activism. This might have temporarily calmed the conflict, but it has also stained the democratic credentials of the Supreme Court. At least in the Brazilian context, judicial activism and judicial independence may not be that harmonious, let alone dependent on each other.

Suggested citation: Juliano Zaiden Benvindo, Abusive Judicial Activism and Judicial Independence in Brazil, Int’l J. Const. L. Blog, Dec. 22, 2016, at: http://www.iconnectblog.com/2016/12/abusive-judicial-activism-and-judicial-independence-in-brazil/


[1]     See Anthony Boadle and Alonso Soto, Brazil’s Indicted Senate Head Removed by Supreme Court,  Reuters (Dec. 6, 2016, 12:41pm), http://www.reuters.com/article/us-brazil-politics-renan-idUSKBN13U2RR.

[2]     See David Landau, Abusive Constitutionalism, 47 U. Cal. Davis L. Rev. 189–260 (2013); Ozan O. Varol, Stealth Authoritarianism, 100 Iowa L. Rev. 1673 (2015).

[3]     See Stephan Mothe, Was Brazil’s Impeachment of Dilma Rouseef in Fact a Coup?, OpenCanada (Sep. 8, 2016), https://www.opencanada.org/features/was-brazils-impeachment-dilma-rousseff-fact-coup/; Keneth Rapoza, Why the American Left is Mostly Wrong about Brazil President Dilma’s Impeachment, Forbes (Aug. 26, 2016, 11:51AM), http://www.forbes.com/sites/kenrapoza/2016/08/26/why-brazil-presidents-impeachment-is-more-conspiracy-than-coup/#2e583d9d278b; Wyre Davies, Dilma Roussef’s Downfall: Betrayal yes, but no Coup, BBC (Sep. 4, 2016), http://www.bbc.co.uk/news/world-latin-america-37271465; Dilma Roussef on Ouster: This is a Coup that Will Impact Every Democratic Organization in Brazil, Democracy Now (Sep. 1, 2016), https://www.democracynow.org/2016/9/1/dilma_rousseff_on_ouster_this_is; Amanda Taub, All Impeachments are Political. But Was Brazil’s Something More Sinister?, N.Y. Times (Aug. 31, 2016), http://www.nytimes.com/2016/09/01/world/americas/brazil-impeachment-coup.html?_r=0.

[4]     See Juliano Zaiden Benvindo, Preservationist Constitutional Amendments and the Rise of Antipolitics in Brazil, Int’l J. Const. L. Blog, Oct. 26, 2016, at: http://www.iconnectblog.com/2016/10/preservationist-constitutional-amendments-and-the-rise-of-antipolitics-in-brazil/.

[5]     See Richard Albert, Constitutional Dismemberment (November 25, 2016). Boston College Law School Legal Studies Research Paper No. 424,  at: https://ssrn.com/abstract=2875931.

[6]     See André Oliveira, Interferência do Judiciário não é Remédio, mas Parte da Doença, Interview with Daniel Vargas, El País (May 8, 2016, 8:42PM), http://brasil.elpais.com/brasil/2016/05/06/politica/1462570842_615018.html.

[7]     See Brazil Supreme Court Removes Lower House Speaker Cunha, Reuters (May 5, 2016, 2016), http://www.reuters.com/article/us-brazil-politics-idUSKCN0XV1UB; Vinod Sreeharsha, Brazilian Lawmaker Who Led Impeachment of President is Arrested, N.Y. Times (Oct. 9, 2016), http://www.nytimes.com/2016/10/20/world/americas/brazil-eduardo-cunha.html.

[8]     See Thousands Protests Against Corruption in Brazil, Deutsche Welle (Dec. 5, 2016), http://www.dw.com/en/thousands-protest-against-corruption-in-brazil/a-36638148.

[9]     See Márcio Falcão, Precisamos de Correções de Rumo, diz Marco Aurélio, JOTA (Dec. 6, 2016, 8:04PM), http://jota.info/justica/prescisamos-de-correcoes-de-rumo-diz-marco-aurelio-05122016.

[10]   Brazilian Federal Constitution, art. 86, § 1.

[11]   See Daniel Carvalho, Senate Defies Supreme Court and Keeps Calheiros as Its President, Folha de S. Paulo (Dec. 7, 2016, 12:18AM), http://www1.folha.uol.com.br/internacional/en/brazil/2016/12/1839106-senate-defies-supreme-court-and-keeps-calheiros-as-its-president.shtml.

[12]   See Fernando Rodrigues, Entenda como foi o conchavo nos Três Poderes para salvar Renan Calheiros, Poder360 (Dec. 8, 2016), http://www.poder360.com.br/analise/entenda-como-foi-o-conchavo-nos-tres-poderes-para-salvar-renan-calheiros/; Marcos Mortari, Michel Temer costura com STF permanência de Renan Calheiros na presidência do Senado, InfoMoney (Dec. 7, 2016, 10:53AM), http://www.infomoney.com.br/mercados/politica/noticia/5902338/michel-temer-costura-com-stf-permanencia-renan-calheiros-presidencia-senado.

[13]   See Paulo Trevisani and Jeffren T. Lewis, Brazil’s Supreme Court Votes Renan Calheiros can Remain Senante President, The Wall Street Journal (Dec. 7, 2016, 5:57PM), http://www.wsj.com/articles/brazils-supreme-court-votes-renan-calheiros-can-remain-senate-president-1481143438.

[14]   See Landau, supra note 2.

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Published on December 22, 2016
Author:          Filed under: Developments
 

3 Responses

  1. Simon Drugda

    Dear Dr. Benvindo,
    Thank you for this informative piece. It was a great read.
    I should disclose that I know very little about Brazilian constitutional law. Just a couple of points that interest me:

    1) What do you mean by a “unilateral action?” Was it a suo moto decision on part of Justice de Mello? If I understand correctly, the decision must be confirmed by the whole SC.

    2) In your last paragraph, would it not be unethical and arbitrary for the Court to reject charges by the prosecutor if these were indeed “justified.” This relates to the Brazil’s criminal justice system. How does the criminal justice system works when it comes to MPs?

    3) Finally, what is your definition of judicial activism? Is not “abuse” already within the notion? Then “abusive judicial activism” does not really add anything to the concept.

    Thank you for clarifications and have a pleasant day.
    Kind regards,
    Simon Drugda

    • Juliano Zaiden Benvindo

      Hi Simon,

      Thank you very much for your comments and questions! Indeed, the Brazilian judicial system has some particularities that make it quite complex for the international audience. I’ll try to bring some information that may help you understand how it works.

      I’ll follow the structure of your questions:

      1) There is a visible dysfunctionality at the Brazilian Supreme Court, which is the large number of unilateral decisions made by single justices. We say that we have 11 islands, corresponding to the 11 justices, because many relevant decisions are made just by one single justice. According to a research just published in Brazil (see http://www1.folha.uol.com.br/poder/2016/12/1844509-em-ano-de-crises-supremo-tem-18-menos-decisoes-coletivas.shtml), only 12% of all decisions this year at the Supreme Court were collectively made. Many of these decisions must be confirmed by the other justices, but there is no immediate sanction if the individual justice does not bring the case immediately to his or her colleagues. Sometimes, this can take years. So each justice has a substantial control over the cases they have to decide and the timing of decision-making.

      In this case, because there was an immediate backlash by the Senate, the Supreme Court rapidly gathered to decide it collectively. But this is not a common scenario.

      Briefly, the Brazilian Supreme Court Justices have very strong individual powers. Sometimes this brings a lot of controversies among its justices and instability to the court itself.

      2) This is a difficult question, because it involves matters of ethics and procedure. My point is that it might be unconventional that a single justice has the power to ouster the President of another branch. It can be motivated by criminal charges, as was the case, but there is something more complex here. When the Supreme Court decided the case, they attempted to find a negotiated solution, which was also very controversial in the context. The problem is how the justices themselves, the government, the Senate seemed to have designed together the outcome of that decision. This is certainly unethical. But there is a complex issue here, which is how far the Supreme Court, and more especifically, a Supreme Court Justice can go in such circumstances. So, besides ethics or even criminal charges, there is a matter of procedure and separation of powers, making the case even more complicated.

      On the criminal justice system, the Supreme Court has sometimes very intensively acted, sometives it did so in a very self-restraint way. It has ousted, for example, the Speaker of the Lower House and some MPs were already condemned, especially in cases related to graft. The problem is that MPs are judged only by the Supreme Court, which has not all the resources for criminal matters, and it takes a lot of time to do so.

      3) This is an ontological question and I can briefly say that I don’t think that judicial activism by itself is already a kind of abuse. The difficult task here is to see, in each case, whether there is a sort of attack on the main democratic underpinnings of our constitutional system. You can have cases in which activism may bring a relevant agenda, for example. Abortion, although very controversial, is, for example, under discussion at our Supreme Court. It is certainly a case of activism, but it is also a case of basic rights. So, it depends. My point, in my piece, is how judicial activism – and the Brazilian Supreme Court is sometimes very activist – can be used to erode the democratic system. And this has happened in some circumstances. The example I brought is just one of them, although a very impactful one.

      I hope I could bring you some more information about our system. If you have any other questions, please just let me know. I’m more than happy to explain how our system works.

      Best regards!

      Juliano

      • Simon Drugda

        Dear Juliano (if I may),

        Thank you for your wonderful, kind, and thorough response. I keep in with our discussion’s structure:

        1) I take your point. The article you linked mentions that there was a misunderstanding between justices de Melo and Mendes, correct? Does such an open display of disagreement show on the Court’s perceived legitimacy? Alternatively, do monocratic decisions reflect on the individual justices’ reputation?

        I would love to read more on the “judge-islands” in the future. Thank you for your explanation.

        2) So, you first object to the initial decision of Justice de Mello because it was not collegial; and second to the overall negotiated outcome?

        Let me rephrase that, it seems to me that you argue that the STF should either not hear graft charges against MPs at all (is the legislature investigate the charges?); or when it does it needs to strictly follow the procedure (in this case oust the President without negotiation?).

        3) I fail to see how trying an MP for corruption, supposing that the prosecutor objectively has a case, “erodes the democratic system.” Even if the MP heads the Parliament.

        The abortion example you give, wouldnt that be undemocratic? If there was a legislation prohibiting abortion and the SC struck it down as unconstitutional (also vice versa), I could see that some scholars might view this as undemocratic. By abuse I meant “eroding the democratic” system; I tried to keep in with your phrasing.

        Happy holiday season and a wonderful new year.

        Kind regards,
        Simon

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