–Vanice Lirio do Valle, Estacio de Sá University
The Brazilian political crisis is visible worldwide, due to the bombastic effects of the findings in the huge police investigation called the “car-wash operation”. From the initial imprisonment of Senator Delcidio Amaral in 2015, up to the second criminal complaint addressed to President Michel Temer who was charged with leading a criminal organization in 2017, dozens of important political figures, including the President of Congress, have been charged or even incarcerated for corruption. According to the Brazilian Constitution (art. 53), members of Parliament are immune to civil and criminal charges arising from opinions, speeches and votes; and any kind of lawsuit against these political characters will be held by the Supreme Court. A panel of the Supreme Court itself issued a preliminary order in a criminal lawsuit suspending Senator Aecio Neves’s mandate, and prohibiting him from being outside his home at night. Congress reacted, claiming that those provisional measures were not applicable to Parliament members due to the above mentioned constitutional clause, raising threats of non-compliance. These events recall Ran Hirschl’s paper on the judicialization of mega-politics.
The latest event was last week’s ruling in case ADI 5526. That lawsuit questioned, in the abstract, the interpretation of the Criminal Procedure Code on provisional measures. The petitioners demanded that the provision must be interpreted to either exempt congressmen from these orders, or require any such measures to be communicated to Congress within 24 hours in order to get formal approval from that body. It was clear to the Brazilian public that the ruling, despite having been issued in an abstract judicial review lawsuit, was really about provisional measures applied to Senator Aécio Neves and its subsequent political turmoil.
This incident is merely the tip of the iceberg when it comes to the judicialization of mega-politics in Brazil. This episode was preceded by the debate about the impeachment procedure of former President Dilma Roussef; the suspension of Eduardo Cunha’s mandate (at the time, he was the Speaker of the House); the admissibility of evidence produced as part of a plea bargain as grounds for the first indictment of President Michel Temer for obstruction of justice, and several other cases. Ran Hirschl synthetized the explanations presented by scholars as part of a worldwide phenomenon, and many factors that favor its occurrence can be found in Brazil. An independent Judiciary; a judicial system hospitable to judicialization; the need of an impartial player to decide about the scope and nature of the fundamental rules of the political game – all these circumstances can be found in the Brazilian scene. Two contributions from Hirschl’s work should be stressed as helpful to understanding the Brazilian moment. The first one is that judicialization of mega-politics encompasses an intentional transfer of sensible matters from the Legislature to the Judiciary by the former. This component will be especially relevant in the Brazilian system, in which the Supreme Court cannot (at least formally) choose which cases it will hear and therefore cannot decline the Congress’s implicit transfer of a contentious subject. The second contribution relates to Hirschl’s warning about taking the notion of courts as political institutions seriously in order to understand judicialization of the mega-politics. The point raised by that contribution in the current Brazilian scenario is about how the Court itself should understand its role.
One problem is bad political timing in setting the agenda. The evidence from last week’s ruling suggests an explicit trade-of, or accommodation between Congress and the Judiciary. The provisional measures against Senator Aécio Neves were decided on September 26th, 2017; and the Senate, fearing the repetition of such a ruling in on-going and future criminal investigations reacted, asserting that those measures violated the constitutional grant of immunity on behalf of members of the Parliament. The Senate thus scheduled a session in which compliance with the judicial decision would be voted on. The potential denial in complying with the Supreme Court’s decision accelerated the Court’s analysis of ADI 5526 because of the Supreme Court’s President’s discretionary power to schedule sessions. This was a clear alternative to institutional deadlock.
The negotiation context was so obvious that Justice Roberto Barroso felt compelled to clearly state in the judgement’s broadcasted session that Senator Aecio Neves’ case was the real background to the ruling. During the session, it was also pointed out that the Court would not be in such a difficult debate if that first decision about Senator Aecio Neves, approved by only three Justices, had not happened. Here you have the first harmful effect of such a crisis: evidencing a clear internal division concerning a possible strategic error in opening this debate on such a sensitive issue, in the middle of an undeniable political crisis.
The vote resulted in a tie broken by the Court’s President, favoring a constitutional interpretation according to which only the suspension of mandate would be sent to the Congress for ratification, but not other provisional measures. After the decision, there was an embarrassing discussion in the Court about the real meaning of the ruling. The majority sustained that even provisional rulings that indirectly affected a Senator’s mandate, such as passport apprehension, etc, should be sent to Congress for approval. Here again it was clearly stated by Justice Ricardo Lewandowsky, and confirmed by the President of the Court, that this lawsuit came to session exclusively due to the prior suspension of Senator Aecio Neve’s mandate.
The ruling itself, as already mentioned, ended as a tie, even though Justice Alexandre de Moraes change his vote during the judgement as an accommodation effort – all of that, again, broadcast live. The heated debate on the extension of the ruling, after a 13 hours session evidenced an unfinished theoretical framework in the matter, confirmed the hurry in bringing the matter to decision. The public perception after the ruling was that the Supreme Court had bent to congressional pressure in a context in which Congress is evidently discredited due to the multiple serious corruption accusations. This was a dangerous step towards institutional distrust in the Court.
It is crucial to take into account Hirschl’s warning about the new role courts are called to play as political actors – and the political game is played according to different strategies. Transferring sensitive subjects to the Court is a clear attempt from the Congress to prevent a costly decision, and it will mean at the end, transferring that cost to the Court, who may pay the price in institutional prestige. Taking time to build an institutionally cohesive response, instead of a public display of dissent, may appear to be a dangerous path that might aggravate the institutional crisis. But there is no safety in merely postponing potential institutional conflict by rushing a ruling and exposing strategic maneuvering through a televised session.
Once again, I turn to Hirschl’s point that behind the spread of the judicialization of the mega politics phenomena, is the Congress’s belief that turning “big questions” over to the Court will result in a relatively supportive judiciary. Whenever this turns out to not be the case, Congress might respond with a political backlash aimed at clipping the wings of the overactive court. This also seems to be the case in Brazil, starting with a newly proposed bill geared at containing abuse of authority, but which was clearly aimed at the Public Prosecutor’s Office and the Judiciary. The first attempt to undermine those institutions was greeted with intense social resistance – but that might not be the case after last’s week ruling.
The epilogue to this matter happened on October 17, when the Senate, as predicted, denied ratification to the Supreme Court provisional measures concerning Senator Aecio Neves, enforcing a public perception that Parliament is absolutely immune to any kind of responsibility – even criminal. Now, that sentiment is associated with an unexpected and unfortunate intervention of the Supreme Court.
Entering the political arena requires a different strategic framework that is unfamiliar to the Supreme Court. Surely a Supreme Court Justice is not naïve, and can engage in political trade of and negotiation. The question that remains is – is this the Supreme Court that we, the Brazilian people want?
Suggested citation: Vanice Lirio do Valle, The Brazilian Moment in the Judicialization of Mega-Politics, Int’l J. Const. L. Blog, Oct. 22, 2017, at: http://www.iconnectblog.com/2017/10/the-brazilian-moment-in-the-judicialization-of-mega-politics/
 Article 53. Deputies and Senators enjoy civil and criminal inviolability on account of their opinions, words and votes.
 The Supreme Court in Brazil can rule in Plenary sessions, with all eleven Justices, or can decide in a panel called a “Turma”, with five Justices. A majority (three Justices) in the First Panel took the decision that triggered the crisis.
 Hirschl, R., 2008. The judicialization of mega-politics and the rise of political courts. Annu. Rev. Polit. Sci., 11, pp.93-118.
 There are literally dozens of congressmen mentioned in plea bargaining held in the “car-wash operation”, most of them for receiving bribes and charged with voting in the House according to this or that specific interest.
 In Brazil, the Supreme Court’s full panel sessions are broadcast on TV and available through YouTube.
 That bill intended to constrain investigation by criminalizing coercive interrogation, house searching, recorded conversation, publicizing evidence for a person of interest, etc., as long as these measures were considered “abusive.” There was even a clause criminalizing an improper interpretation of the law, whenever it was modified by a superior Court. The bill would potentially have serious repercussions for the Prosecutor’s Office and even the Judiciary.