—Emilio Peluso Neder Meyer and Thomas da Rosa de Bustamante, Federal University of Minas Gerais and Brazilian National Council for Scientific and Technological Development
Brazil is quickly becoming a hallmark of constitutional and democratic erosion. While President Bolsonaro engages in a radical attack on the electoral procedures and electronic ballots (which lacks any kind of evidence and prompted an investigation in the Superior Electoral Court), restrictions on academic freedom are on the rise. It seems to be no coincidence that President Bolsonaro launched, in the past weeks, several attacks on Justice Barroso, who wears the two hats of a Justice in Brazil’s highest court and a constitutional law professor. Nonetheless, despite the seriousness of the threats to democracy posed by President Bolsonaro, the main target of law-enforcement authorities nominated by him, the Prosecutor General of the Republic Augusto Aras and the Federal Supreme Court Justice Nunes Marques, wears only the academic hat: the University of São Paulo Professor Conrado Hübner Mendes.
From the offset of his turbulent administration, President Bolsonaro followed the comparative authoritarian and populist playbook of dismantling academic freedom. His favored strategy, in the beginning of his administration, was concentrated on limiting budgets and administrative prerogatives of the federal universities. Direct attacks on individual and institutional academic freedoms were left to his cronies, especially former Ministers of Education. Since the first months of 2021, however, one can witness a more serious and direct assault on academic freedom in the country. Under the policy of relying on the National Security Act to criminally sue his critics, captured public administration agencies and law-enforcement officials that should oversee the president – or at least remain impartial concerning public criticisms – are now also using public institutions to persecute opposing opinions.
The Role of the Prosecutor General of the Republic
As we mentioned in another article, the Prosecutor General of the Republic in Brazil, Augusto Aras, was dissatisfied with Hübner Mendes’s criticisms on his activities as an overseeing authority with jurisdiction to hold the President of the Republic accountable to the law. Mendes described Augusto Aras both on social media and in newspapers’ articles as a “lightening post” and a servant of the president. Additionally, Hübner Mendes stated that the prosecutor’s omissions could lead to investigations at the International Criminal Court. In response to these critiques, the Prosecutor-General not only filed a disciplinary procedure against Mendes in the University of São Paulo’s Ethical Committee but also pressed criminal charges in Brazilian courts.
Hübner Mendes demanded explanations from the conduct of the Prosecutor General of the Republic that are of public knowledge and that have been criticized even inside the Federal Prosecution Service, the institution led by the prosecutor. One must bear in mind that the 1988 Constitution, in its Article 127, provides that the Federal Prosecution Service should act only on behalf of the law, the democratic regime and social and individual rights. The defense of the interests of the federal government, in turn, is the competence of another authority, the Solicitor General of the Republic (Article 131). This constitutional framework is aimed at attributing to the Prosecutor General of the Republic independence from the presidential interests in fulfilling his constitutional and public duties. There is strong evidence, nonetheless, that Augusto Aras is failing to exercise this institutional role.
Hübner Mendes’ criticisms were directed, for example, to the lack of actions in response to the attacks on governors who opposed the omissions of the federal government on COVID-19 measures, performed by President Bolsonaro’s ministers and supporters. He criticized the prosecutor, in addition, for doing nothing against Bolsonaro’s constant threats to the Federal Supreme Court, his usage of influence peddling, and the subversion of the public order by the president’s threats to perform a coup.
By the same token, Hübner Mendes reported in his writings facts that provide support for suspicion about the conduct of the Prosecutor General in criminal proceedings that interest Bolsonaro’s family. The Prosecutor General of the Republic requested the investigation of a doorman that indicated a possible link between Bolsonaro’s family and the assassination of Rio de Janeiro’s councilor Marielle Franco. Franco was murdered in 2018 and there is not, until now, any evidence on who ordered the assassination. Rumors indicate that milícias, that is, the organized mob in Rio de Janeiro integrated by former police and military agents, played a part in the murder. The fact that Bolsonaro’s family have direct links with members of milícias – having, for instance, paid tribute to their members and employed them in state cabinets – has been ignored by the Prosecutor General of the Republic, who reversed the investigations against the doorman.
The prosecutor also favored Senator Flávio Bolsonaro (Jair’s son) and opposed the Federal Supreme Court case law on lawmakers’ prerogatives of forum, thereby supporting the defense’s view that the case should be ruled on by a state court instead of a single judge. In addition, the Prosecutor General of the Republic demanded the rejection of a criminal complaint against the Chamber of Deputies’ Speaker Arthur Lira, a frank Bolsonaro’s supporter. The prosecutor issued, in addition, an advisory opinion against the establishment of a deadline for the Chamber of Deputies’ Speaker to analyze impeachment requests, which now reach the groundbreaking number of 120. Professor Hübner Mendes also points out to the fact that the Prosecutor General of the Republic not only omitted himself in overseeing Bolsonaro, but also threatened democratic institutions with the viability of a declaration of state of defense, a form of state of emergency, besides the state of siege, provided for by the 1988 Constitution. Finally, he also reports in his critical articles how other career prosecutors criticized and even filed a complaint against the Prosecutor General for the selectivity of his investigations on the state of Amazonas COVID-19 deaths, by which he previously exempted Jair Bolsonaro from any proceedings without clear justifications.
Capturing the Federal Supreme Court: Justice Nunes Marques
Contrary to countries such as Hungary and Poland, where parliamentary majorities helped capture and reform courts in aid of an authoritarian government, President Bolsonaro has, so far, used two tactics: general and crude attacks on courts and their justices; and nominations that could support his positions. At the Federal Supreme Court, when Justice Nunes Marques was nominated, academics showed some relief: he was a former judge in a circuit court and did not seem to personify the Bolsonarist agenda.
Justice Nunes Marques was quick to reverse such hopes. During the COVID-19 pandemic, with a rate of 4,000 deaths per day, on April 3, 2021 – a Saturday – he monocratically issued an injunction allowing churches and worship services to take place at a maximum of 25% of the personal capacity of each meeting. On April 4, 2021, there would be Easter celebrations in Brazil. Ignoring all scientific recommendations, he allowed the religious gatherings. His injunction sidelined the full bench and directly opposed the Federal Supreme Court’s ruling that gave states and municipalities the competence to regulate the functioning of commerce, religious worships, restrictions on economic activities and the gathering of people. His decision was overruled by the full bench on April 8, 2021 a few days later, after Easter celebrations had occurred.
Professor Hübner Mendes, using a term very common in Portuguese and referred by lawyers, described the ruling as a chicanery: a way of reaching a juridical objective curtailing the common procedures. The complaint could have been decided by Justice Nunes Marques since November 2020, when he was nominated. But he waited to the last minute, arguably in order to avoid having the decision be overruled by the full bench, suggesting that his strategy was to avoid a quick reversion and possibly please Evangelical minorities that support Bolsonaro.
Justice Nunes Marques was offended and asked the Prosecutor General of the Republic to open a criminal inquiry to investigate Professor Hübner Mendes. His complaints in libel and defamation also mention that Professor Mendes would have allegedly attributed to the Justice false accusations. What is striking in Justice Nunes Marques’ complaints is that he is obviously taking into account the position that the Prosecutor General of the Republic adopted with regards to academic freedom. That would be another case in which someone could think of chicanery.
Conservativism, Academic Backlash and Esprit de Corps
USP’s dean, until now, has only issued a bashful note in which he mentioned the plurality of ideas and the fact that the institution’s professors’ opinions may not be coincident with what he thinks. USP’s Human Rights Committee, however, went much further in defending freedom of expression and pointing out that the Prosecutor General of the Republic’s actions are an attack on institutions that produce scientific knowledge.
Brazilian professional associations of judges went to the aid of Justice Nunes Marques, ignoring, for instance, that President Bolsonaro repeatedly attacks courts – even making dreadful accusations against Justice Barroso. The Federal Association of Judges declared that it was concerned about “personal attacks” on Justice Nunes Marques. These kinds of manifestations ignore the role of freedom of expression and academic freedom already protected by the Federal Supreme Court case law (ADPF 548 and ADI 5.537), indicating a dangerous “esprit de corps” supposedly immune to criticism. In other words, Brazilian judges and courts would place themselves beyond public accountability, an essential feature of the rule of law. Furthermore, the “esprit de corps” deliberately confuses attacks on courts that aim at capturing or extinguishing them – in the Bolsonarist fashion – with academic and scientifically based criticism that is vital to democracy.
Scholars, however, united in favor of Professor Hübner Mendes’ academic freedom. More than 80 Brazilian professors signed a petition defending Mendes’ positions against the Prosecutor General of the Republic and even subscribing it. By the same token, in a second joint-statement, more than 280 Brazilian jurists agreed that criticism is a bedrock of consolidated democracies, and strongly condemned the conduct and the charges of the Prosecutor General of the Republic and the Supreme Court Justice Nunes Marques. These statements have echoed also in the international legal community. A wide number of law scholars from all over the world demonstrated their concern and defended Professor Conrado Mendes’ freedoms, expressing their worry about academic freedom in Brazil.
It is no coincidence that, in parallel to the facts herein described, President Bolsonaro continued his attacks against the trust of Brazilian elections – polls have been indicating a continuous loss of public support and the strength of former President Lula’s candidacy. The Superior Electoral Court, as already mentioned, started procedures against Bolsonaro for false claims towards the legitimacy of Brazilian elections – if they succeed, Bolsonaro could even be prevented from participating in the next presidential elections. Justice Barroso, in a strong speech, declared that it is undemocratic to “defile[s] the public debate with disinformation, lies, hatred and conspiracy theories.” Professor Conrado Mendes, in his weekly column, stated that this was one of the most important judicial declarations in recent history and that they shall become concrete action.
Afterwards, President Bolsonaro insisted on offending Justices of the Federal Supreme Court and stating that he would, if needed, act beyond the border of the 1988 Constitution – he stated that time would come for Justice Alexandre de Moraes. The Federal Supreme Court Chief Justice Luiz Fux responded that he would no longer try to dialogue or create consensus between the heads of the three branches, the kind of political move that Professor Hübner Mendes always criticized.
As one can see, academic freedom is an essential protection for scientific based opinions that, even if harsh, can strengthen institutions against real threats to their existence.
Suggested citation: Emilio Peluso Neder Meyer and Thomas da Rosa de Bustamante, Academic Freedom Must be Protected in Brazil, Int’l J. Const. L. Blog, Aug. 10, 2021, at: http://www.iconnectblog.com/2021/08/academic-freedom-must-be-protected-in-brazil/
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