Special Series: Perspectives from Undergraduate Law Students
–Pedro Abrantes Martins, Bachelor’s degree candidate, Federal University of Paraná (UFPR), Brazil; Research Fellow, Brazilian National Council for Scientific and Technological Development; member of the research group “Abusive Constitutionalism and Democratic Erosion,” UFPR
A recent article shed light on president Jair Bolsonaro’s rage towards the Brazilian Supreme Court (STF) and his intention to act on the matter. According to the piece, four anonymous sources claimed that the president wanted to intervene in the Court after it discussed whether Bolsonaro’s cellphone should be seized for an investigation involving the head of State and his son. The president has publicly displayed authoritarian behavior throughout his mandate. Since the beginning of 2020, he has taken part in protests asking for military intervention, yet he managed to stifle the discussion on his acts by denying any anti-democratic intentions. Recent events, however, have brought this discussion back to the forefront.
Bolsonaro is widely known for his autocratic tendencies and has been so even before the 2018 elections that got him to the presidential palace. Nevertheless, much like Donald Trump in the USA, many of his supporters believed that his illiberal rhetoric during the campaign did not mean that he would behave that way in office. However, recent events suggest that he is walking the walk as well as talking the talk. According to Piauí magazine, the president held a closed-door meeting on May 22 where he raised the possibility of intervening in the STF. The accusation is particularly worrying, given that recent years have seen a pattern of increased authoritarianism around the world. Bolsonaro seems to be following in the steps of several other would-be autocrats around the globe, leading Brazil towards a much more dangerous path.
Since the beginning of the year, Jair Bolsonaro attended several public events, ignoring all World Health Organization (WHO) recommendations. In addition to crowds and lots of physical contact, cries for military intervention and signs with messages against the Supreme Court and the Congress were some of the most common elements within many of these events. Bolsonaro himself fueled the hatred towards other branches of power as he announced that he had “reached his limit,” referencing his recent altercations with members of the legislative and judicial branches.
The Brazilian president accused the STF of overstepping its bounds in recent rulings that represented major defeats for him. The Court has actively ruled on thousands of cases related to the SARS-Cov-2 pandemic. Most of these decisions go against Bolsonaro’s beliefs. The head of State repeatedly diminished the dangers of the pandemic: he has referred to Covid-19 as a “little flu” and a “media trick”. Once, when questioned about the spike in cases of the disease, he responded: “So what?”.
It didn’t take long before Justices, media and civilians started questioning his actions. In this sense, Bolsonaro promptly attempted to remedy the situation as he went on record defending the Congress and the Supreme Court as well as claiming that he had never attacked other branches of Power. One of the tensest discussions, however, had nothing to do with the pandemic. A request made by political parties to seize the President’s cellphone as part of an investigation into whether or not he tried to meddle with law enforcement for private purposes triggered the president’s threat to intervene in the Supreme Court
The Piauí maganize article
Piauí’s piece on Bolsonaro’s “I’ll intervene” statement came out a little over two months after the event allegedly happened. On August 5, the Brazilian magazine described what four anonymous sources had witnessed back on May 22. According to these individuals, the meeting took place at the President’s office. Initially only two Armed Forces generals were present: Presidential Chief of Staff, Minister Walter Braga Netto, and Government Secretariat, Minister Luiz Eduardo Ramos. A third general and Chief Minister of the Cabinet of Institutional Security, Augusto Heleno, joined later that morning.
It was reported that Bolsonaro’s initial idea was to send troops to shut down the Constitutional Court right away. Substitute Justices would then work until “that was in order” (although he never made clear what he meant by “that” or what was his idea of being “in order”). He went on and stated that under no circumstance would he hand over his cellphone to the responsible authorities investigating the case.
A previous Supreme Court ruling also came up at the meeting: Justice Alexandre de Moraes’ decision to forbid Bolsonaro from nominating Luiz Eduardo Ramos, a close friend to the President, as General Director of the Brazilian Federal Police. This was what had previously driven the president to say that the justices had “gone too far”.
Augusto Heleno allegedly said that “this is not the time” for an authoritarian intervention. Hence the attempt to look for a “middle ground.” Two other Ministers, André Mendonça and Fernando Azevedo, as well as the head of the Federal Attorney General’s Office (AGU), José Levi, later joined the discussion surrounding possible legal arguments for an intervention.
During the meeting, Bolsonaro was soothed by the possibility of a ruling in his favor and against seizure of his cellphone. This in fact turned out to be the case only ten days later, when a Supreme Court judge shelved the seizure request. Although nothing happened, Heleno released a “Note to the Brazilian Nation”, claiming that the request to seize the “maximum authority’s” cellphone was “inconceivable and, to a certain point, unbelievable.” This Note was harshly criticized by politicians and jurists, leaving many civilians fearing an autocratic turn.
To this day the story has neither been confirmed nor denied by any authority. However, as it has been noted, if the government wanted to deny the controversy, it would have done so as soon as the article came out (as it has done before with regards to other controversies Bolsonaro had been involved with). As a matter of fact, many did not even see the meeting as a surprise. For instance, Eduardo Bolsonaro, the president’s son, had publicly stated that his father could take “forceful actions” against the Court just a few days before the meeting allegedly happened. Just a little over a month before that, then Education Minister Abraham Weintraub addressed altercations with Supreme Court judges in a videotaped cabinet meeting and said: “If it were up to me, I’d stick all those bums in jail.” The president himself widely criticized judges and the Court in many occasions. Hence the fact that Piauí’s article wasn’t really a perceived as a shocker by many.
Autocratization as a worldwide phenomenon
As the episode unfolds, experts foresee many negative possible outcomes. Authors believe that Brazil is experiencing the wave of democratic erosion that is spreading around the world. One of the most notorious leading sources of information on democracy in the world, Varieties of Democracy (V-Dem), recently downgraded Brazil from a full democracy to an electoral one.
As a third wave of autocratization (Anna Lührmann) takes over many nations, political scientists describe the phenomenon as a more subtle attack to democracy than the formerly employed military coups. Democratorships (Kim Lane Scheppele) are these new hybrid regimes that provoke democratic erosion in more nuanced strikes, making it hard to identify the exact moment a shift on the system of government happens.
Although the phenomenon has manifested itself all over the globe, it seems to happen in a quite uniform way. As anti-democratic leaders feel the need to legitimate their decisions and actions to stay in power, they find that Courts are necessary institutions to secure the legality they seek. In this sense, the first step of elected anti-democrats and their parties is to lead public attacks on the judiciary. As this branch of power gets weaker, they deploy a second and/or a third step: to push judicial purges and/or pack the courts (Azul A. Aguiar-Aguilar).
Jair Bolsonaro’s actions analyzed by this piece clearly check the boxes of this new wave of autocratization. Bolsonaro’s disregard (one might even say hatred) towards the country’s Supreme Court indicates that Brazil is in the rather early steps of democratic erosion. Although nothing major has happened yet, the international community should keep a close eye on the country’s political scenario, for it seems to be going down a dangerous path.
Suggested citation: Pedro Abrantes Martins, Supreme Crisis: Bolsonaro Threatens to Attack the Brazilian STF, Int’l J. Const. L. Blog, Aug. 14, 2020, at: http://www.iconnectblog.com/2020/08/supreme-crisis-bolsonaro-threatens-to-attack-the-brazilian-stf/