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) 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. 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.Read the rest of this entry…