— Emilio Peluso Neder Meyer (Federal University of Minas Gerais and Brazilian National Council for Scientific and Technological Development, Brazil)
— Estefânia Maria de Queiroz Barboza (Federal University of Paraná, Brazil)
Brazilian President Jair Bolsonaro, even before being elected in 2018, opened a fierce attack on the electoral system. Although he was the winner at that time, he criticized the integrity of electronic ballots and spread fake news on a system that had never shown any evidence of fraud in more than two decades of use. In this sense, Bolsonaro followed the authoritarian and populist leaders’ playbook of casting doubt on the electoral process in order to anticipate potential political defeats. The peculiarity of the Brazilian case is that elections are overseen by the judicial branch, especially, the Electoral Superior Court.
Aiming at increasing the juridical and political costs of Bolsonaro’s unconstitutional and illegal plans, a group of several Brazilian constitutional scholars and political scientists created the Demos, an Observatory for Monitoring Electoral Risks in Brazil. Joined by academics of the most diverse political positions, Demos filed a petition for the United Nations Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán. In a long piece co-written by Masters and PhD students from the Federal University of Paraná, those academics agreed upon the diversity and range of Bolsonaro’s attacks on courts in Brazil.
The harms include public demonstrations in which Bolsonaro disseminates distrust and public threats against Justices of both the Federal Supreme Court and the Electoral Superior Court who decide against his government. Moreover, as both courts deal with investigations that involve his family, especially in a case of financing fake news campaigns against the Federal Supreme Court, the president has for repeatedly directly attacked judges such as Justice Roberto Barroso, Alexandre de Moraes and Edson Fachin. Worse, he also publicly incited people to disobey judicial orders.
Bolsonaro also targets the tribunals that take part on the Electoral Justice system, sharing misinformation on the possibility of fraud in the electronic ballots. The Electoral Superior Court reacted by creating a transparency commission to demonstrate the confidence of the electronic ballots, but muddied waters by inviting a member of the armed forces to take part in the commission – his work was found by the very Electoral Superior Court to be confusing.
The petition further highlights how Bolsonaro and his family publicly declared that the Federal Supreme Court should be shut down. Bolsonaro’s supporters even proposed to pack the court, increasing its number of seats. Members of the armed forces that have positions in Bolsonaro’s government also started scaremongering, declaring that decisions that could affect the president and his family could have unpredictable political effects. These informal mechanisms are joined by formal measures, such as the nomination of two justices (Nunes Marques and André Mendonça) who have already decided in favor of Bolsonaro’s interests. Additionally, Bolsonaro filed an impeachment petition in the Federal Senate against the Federal Supreme Court Justice Alexandre de Moraes, a measure that is not usual for presidents to take in disfavor of members of the tribunal after the 1988 Constitution. Bolsonarist representatives also proposed to lower retirement ages to interfere with the court’s composition. Also, the president pardoned a federal representative who was condemned by the Federal Supreme Court for publicly defending violence against Justices and the tribunal.
These series of attacks are part of a broader objective of delegitimizing the prospective 2022 presidential elections’ results. Polls are showing that former President Lula has a strong and stable advantage against the incumbent president. What President Bolsonaro is doing is to pave the way to repeat the Capitol’s riots in the United States.
It will be crucial work of an organized civil society to dismantle the president’s plans. Constitutional scholars and political scientists in Brazil are united in denouncing in the country and abroad his most unconstitutional movements, to increase the political costs of his deeds against constitutional democracy. All these attacks violate the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 14), the UN General Assembly Basic Principles on the Independence of the Judiciary (Resolutions 40/32 and 40/146 of 1985), the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels (General Assembly Resolution 67/1 of 2012), the Human Rights Council Resolution 44/9 of 2020, the Human Rights Council Resolution 25/4 of 2014 (Integrity of the Judicial System), the Bangalore Principles, enacted by the Economic and Social Council (Resolution 2006/23) and the American Convention of Human Rights (Article 6, § 1º). More than a constitutional case, Bolsonaro’s contempt for Brazilian courts is a clear violation of international norms and it must be prevented.
Suggested citation: Emilio Peluso Neder Meyer and Estefânia Maria de Queiroz Barboza, Jurists Against Bolsonaro’s Attacks on Courts, Int’l J. Const. L. Blog, Jun 3, 2022, at: http://www.iconnectblog.com/2022/06/jurists-against-bolsonaros-attacks-on-courts/.