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The Chief Justice of the Brazilian Supreme Court: Institutional and Constitutional Self-Destruction

Emilio Peluso Neder Meyer & Thomas da Rosa de Bustamante, Federal University of Minas Gerais and Brazilian National Council for Scientific and Technological Development (CNPq)

The emergence of undemocratic political practices in Brazil, at least from the point of view of the executive branch, has become a general concern. One specific behavior that has attracted the attention of academics in the past few months is the way the Chief Justice of the Brazilian Supreme Court, Justice Dias Toffoli, has engaged in political negotiations and interfered in political crises.

In a recent interview to Veja magazine, Justice Toffoli made some controversial statements. After participating in an endeavor to build a ‘pact’ between the three branches to overcome the ‘immediate challenges’ of the country (the need to  reform the pensions system, the fiscal system and criminal laws) and advocating a ‘moderating’ role for the Federal Supreme Court, Justice Toffoli stated that the court would avoid making rulings that could potentially curb the project of economic development. He also stated that he had had personal conversations with several congressmembers in order to reestablish the authority of President Jair Bolsonaro in the face of serious dissatisfaction with his government, manifested by top echelon military authorities. Finally, he defended an investigation procedure created inside the Brazilian Supreme Court to look into supposed threats and fake news that would taint the members of the court.

Moreover, on August 12, 2019, in a conference for investors in Santander Bank, in São Paulo, Justice Toffoli argued that it would be necessary to ‘dehydrate’ (desidratar)[1] the Brazilian Constitution of 1988, since several economic issues should not figure in the Constitution. He also claimed that he would be in agreement with President Bolsonaro and his Minister of Economy, Paulo Guedes, to amend the Constitution and remove from its text the provisions about taxation and related subjects. Such a series of constitutional amendments, in his view, would help ‘unlock’ the Brazilian economy. Finally, he declared that the Brazilian Supreme Court should be prudent, respect the other branches, and learn ‘how to read’ the electoral results of 2018.

Recent authoritarian practices follow a pattern which is significantly different from that adopted by Justice Dias Toffoli. In Hungary, for instance, the Constitution of 2010 offered no protection for judicial independence; the Fourth Amendment of 2013 nullified the entirety of the case law of the Constitutional Court between 1990 and 2011 and severely restricted constitutional review. In Poland, in a similar way, procedural rules limited the power of courts to review the acts of the executive, and the Constitutional Court was eventually captured by the PiS government.[2] And in the USA, concerns about President Trump’s nominations to the federal courts have grown during his term. In these recent experiences, autocratic attacks on the rule of law came from outside of the judicial branch.

The Brazilian case seems, however, to illustrate a different trend: an interesting situation in which the highest court serves its head on a tray to autocratic politicians.

One can try to interpret the facts in an alternative way. Justice Toffoli’s actions could be depicted as an attempt to strategically avoid measures that could pack the Brazilian judiciary. Back in 2018, he nominated General Fernando Azevedo e Silva (current Minister of Defense) as his advisor, a move that has no explanation except to try to bring judges closer to the military. In Brazilian politics, which are still marked by the difficult relationship between civilian and military powers, if the executive branch were headed by someone distant from the Armed Forces, Justice Toffoli’s choice would be unthinkable. With the growing militarization of politics during Michel Temer’s term and the election of Bolsonaro, the nomination can be explained, although it cannot be justified under the Brazilian Constitution of 1988. In effect, article 142 of the Constitution clearly subordinates the command of the military to the supreme authority of the President of the Republic.[3] The norm encapsulates an institutional design in which the Constitution and the law shall govern a republican and civilian relationship between branches of government and the Armed Forces. The empire of the rule of law must be guaranteed by autonomous courts, not by judges threatened or cowed by a military insurgence.

Some judges and the military in Brazil appear to be committed to the view that it is part of their task to put an end to political crises, in a role that they depict as a ‘moderating power’.[4] This resort to a moderating power echoes the Imperial Constitution of 1824, which attributed to the Emperor the power to act as a ‘branch beyond branches’ in the sense of Benjamin Constant. Curiously, historian Lilia Schwarz associates the absence of any reference to the concept of corruption during the Empire to the impossibility of any effective check caused by the emperor’s moderating power to interfere.[5]

In spite of the fact that Brazil has had six constitutions since the end of the Empire, the idea of a moderating power still persists in our political culture and is from time to time asserted by the courts and the military, regardless of the fact that there is no provision in the Constitution of 1988 allowing for its existence. This is an additional reason why it sounds so awkward that the president of the Brazilian Supreme Court attributes to himself the duty of publicly celebrating a pact between the different branches. What is the constitutional basis for acting in such a crude political fashion?

The question is even more provocative if we consider Justice Toffoli’s ‘economic’ agenda. Toffoli’s views on the role of the court are inconsistent with a liberal, republican, communitarian, or procedural justification of judicial review. His behavior appears to be a populist position that poses a more serious threat than that of individual misconduct of members of the court or of the appeal to the ‘social sentiment’ of the majority in the justification of legal decisions. The Brazilian Constitution of 1988, which has been promulgated by an effectively democratic constitutional assembly, embraced a form of social constitutionalism.[6] Even if it is possible to debate the merits of the constitutional text, the appropriate forum for that debate would be the National Congress, rather than at a conference for investors by the president of one of the most (if not the most) important institutions charged with the duty to defend the Brazilian Constitution of 1988. 

The Chief Justice of the Brazilian Supreme Court has plenty of powers: he is responsible for the court’s docket. At the same time, he plays a pivotal role in constitutional symbolism and institutional responsibility. Creating an exceptional procedure to investigate fake news against the members of the court, mixing the positions of accusation and trial, is not the adequate answer. Worse than that, to argue that the constitution should be ‘dehydrated’ in the name of economic objectives means effectively acting like a legal consultant of the executive and the legislative branches, with a clear intention of replacing the constitutional project.


Being subordinated to momentary political programs is the opposite of, not the equivalent to, responsible adjudication. This conduct becomes even more worrying given that president Jair Bolsonaro, during his electoral campaign, explicitly suggested an increase in the number of Justices of the Brazilian Supreme Court. Furthermore, this year members of his party debated a proposal for lowering the retirement age, with a view to providing new nominations to the Court.[7] In a situation of enduring political crisis, where the executive promotes a true ‘constitutional blitzkrieg’, it is the role of legal institutions to defend constitutions against the uncontrolled managing of power by a gradually aggrandized executive. Justice Toffoli seems to be worried about the excess of ‘constitutional rights’ in the Brazilian Constitution of 1988, and to be telling the Court he presides over to read the ‘signs’ of the 2018 electoral results. By following this path, the president of the Supreme Court abrogates his duties, harming the institution of the court and the Constitution that it should protect, perhaps even paving the way for its destruction.

Suggested citation: Emilio Peluso Neder Meyer & Thomas da Rosa de Bustamante, The Chief Justice of the Brazilian Supreme Court: Institutional and Constitutional Self-Destruction, Int’l J. Const. L. Blog, Aug. 24, 2019, at: http://www.iconnectblog.com/2019/08/the-chief-justice-of-the-brazilian-supreme-court-institutional-and-constitutional-self-destruction/


[1] Justice Toffoli used the term ‘dehydrate’, or desidratar in the Portuguese language, which is a verb that does not only refers to processes of drying or removing water of something, but also, in a figurative way, taking out the unnecessary qualities of an object.

[2] See Kriszta Kovacs and Kim Lane Scheppele, The fragility of an independent judiciary: Lessons from Hungary and Poland and the European Union, Communist and Post-Communist Studies (2018), 1-12.

[3] ‘Article 142: The Armed Forces, made up of the Navy, Army and Air Force, are permanent and regular national institutions, organized 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’.

[4] See Emilio Meyer and Mariana Oliveira, Moderating Power? Military and Judges in Brazilian Democratic Backsliding, Manuscript on file with authors (2019).

[5] See Lilia Schwarz, Sobre o Autoritarismo Brasileiro (Companhia das Letras, 2019) 97.

[6] For a critical approach on how a previous constitutional amendment that created a public spending cap during Michel Temer’s administration would provoke constitutional dismemberment in the social profile of the Brazilian Constitution of 1988, see Richard Albert, Constitutional Amendment and Dismemberment, 43 The Yale Journal of International Law 1 (2018), 41, and Juliano Zaiden Benvindo, Preservationist Constitutional Amendments and the Rise of Antipolitics in Brazil, Int’l J. Const. L. Blog (Oct. 26, 2016),http://www.iconnectblog.com/2016/10/preservationist-constitutional-amendments-and-the-rise-of-antipolitics-in-brazil.

[7] See Felipe Recondo and Luiz Weber, Os Onze: O STF, Seus Bastidores e Suas Crises (Companhia das Letras, 2019) 328.

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One Response

  1. Saowalak Imjai

    Subject: CLARIFICATION OF THE QUESTION’S RELATED TO ME

    The Embassy of Brazil in Islamabad
    the diplomatic mission of Brazil in Pakistan
    Visa officer
    embassy of Brazil,
    Islamabad

    Sir,
    I’m Saowalak Imjai from Thailand at this time living with my Husband Asif Jamil. My husband for the second interview appeared in your office on 2021.03.22. I’m really sorry I could not control my feelings to send you the Email. I intend to send its print by post office to your office if I’m able to get access to the post office.
    In the first interview two officers interviewed and in the second interview three officers asked a lot of questions from my husband about me.
    But two times I came to Islamabad with my husband and stayed out of the embassy.
    During a phone conversation with my husband, my husband asked the visa officer if my wife and I can come here together. After consulting with other officers he answered he can not do so because there is no need for it. I have also sent you Email if I can appear at the embassy with my husband for an interview but you did not reply to me.
    At the same time I went to the embassy but unfortunately I could not get permission to come in.
    My husband has applied for a visa application on my request !!
    The visa officers always question my status and try to know a lot of things about me from my husband even when I’m there at the time out of the embassy.
    you can re-check my emails how many emails I sent you and I try to get permission from you can I come with my husband for an interview but I got no answer.
    but why were so personal questions asked about me along With children and their future planning to bear children. In Muslim socity its very daficult to answer such qucations because in this matter no one is sovereign a number of peoples have no child in spite of there tried best. No one can get such precious things without the blessing of GOD.
    If you want to know about me I can appear in your office and I’m ready to answer you such questions about me because I can only provide you with suitable answers to such questions and other personal questions about me.
    It’s I who wants to bring my husband with me to Brazil for a visit and it’s my right.
    1.On my husband’s passport all over the world needs a visa.
    2. Mostly my husband feels tired of applying for a visa because it is a tiring process.
    3. Before it my husband applied for a visa on behalf of me from Thailand, more than 10 countries, South Korea, Japan, Malaysia, Singapore etc.Every country appreciated and issued visas to my husband.
    4. My husband gave two interviews in your office from his home country and he feels hurt because a lot of questions were asked from him about me.
    5.I really feel ashamed of myself when my husband told me about the visa officer’s questions about how long he intends to bear a child. That she asked me why he has no kids and demanded to explain what he has planned in future to bear a child. My husband answered it. But the visa officer repeated the same question once and again to provide him in detail how long you intend to bear a child this year next year or when.
    6.I want to tell visa officers that I have travelled more than 31 countries during the last 10 years. My husband attached my traveling history but the visa officer returned the documents to my husband in his first interview.
    7. Visa officer asked my husband about his first wife and children and how many countries they had visited with him.
    In the second interview my husband brought all the passports of his first wife and children more than 11 passports with full traveling history. My husband placed all the documents on the table but no one checked.
    I want to tell you that his first wife has also visited my country with me.
    9. My husband and I have a visa from South Korea and we have business in these countries, Thailand, Laos, Pakistan. but no one felt a need to have a look at the documents.
    10.(Important) . I, along with my husband, his first wife and children are staying together.
    I’m very much thankful to you. If you answer my Email.

    we ensure and ascertain to the Visa Officer that we will return back to our home country before the expiry of the visa for my Husband. We are totally aware of the responsibility towards our family, toward society. & our family bonding is also very strong, so we need to come back for them.

    we trust that you will find everything is in order, and we remain at your disposal for any further information. Thank you very much for your time. We hope for a favorable response to my Husband visa application. For questions and clarifications. please feel free to contact us anytime.
    we assure you that we will not overstay because we have strong ties here in Pakistan, Thailand & South Korea not only through our work and personal assets but also through our family ties.
    we are the bearer of all my travel expenses and we have made our flight and accommodation bookings.

    I’m very much thankful to you. If you answer my Email.

    Thank you for your time and consideration.

    Sincerely,

    Miss Saowalak Imjai From Thailand
    (wife of Asif Jamil Pakistani passport Holder BV8201942 )
    Visa application No:201220-500056

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