How an increasingly politicized Supreme Court threatens Brazilian democracy

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When the president of Brazil’s highest electoral court, Supreme Court Justice José Dias Toffoli, officially declared Jair Bolsonaro the winner of the 2018 presidential elections, he made this unusual statement: “The future president must respect institutions, must respect democracy, the rule of law, the judiciary, the National Congress and the legislative power. These remarks were seen as a rebuke of the new president’s conservative views.

However, it is ironic that a major threat to democracy actually comes from a highly politicized justice system.

To give an example, on February 21, 2021, Supreme Court Justice Gilmar Mendes met with then-Speaker of the House of Representatives Rodrigo Maia and 10 other members of the Federal Congress to discuss what they should do about the Brazilian president.

He told those politicians there was an urgent need to end Congress and the court’s “benevolence” to the democratically elected leader. Mendes offered “a tougher attack” on Bolsonaro – he wanted “zero tolerance” with the president.

To give another example, in May 2021, Celso de Mello, then the most senior member of the Supreme Court, sent a text message to his judicial peers comparing the Brazilian president to Adolf Hitler. He told his colleagues in court that Bolsonaro had to be “fighted”.

“Semi-presidential”?

During his speech at the Ninth Lisbon Legal Forum in Portugal on November 16, Dias Toffoli said that “presidencing Brazil is not easy” and that he and his colleagues at the Court “have taken steps to mitigate the impacts of the pandemic in Brazil.”

“We already have a semi-presidentialism with a moderating power check that is currently exercised by the Supreme Court,” he said.

Outgoing Supreme Court President Dias Toffoli (L) speaks alongside Brazil’s President Jair Bolsonaro during the inauguration ceremony for new Supreme Court President Luiz Fux in Brasilia, Brazil, September 10, 2020 (Andresa Anholete/Getty Images)

Of course, the system of government in Brazil, according to its Constitution, is presidential. This so-called “semi-presidentialism” is only found in the creative minds of these activist judges. This amounts, in practice, to a usurpation of executive powers by the unelected judicial elite.

The process for appointing Supreme Court justices in Brazil is virtually identical to that in the United States. These senior judges are appointed to the court by the president and must then be confirmed by an absolute majority of the Senate after a confirmation hearing.

However, the past four years in Brazil have been characterized by a remarkable increase in judicial activism. A question often raised is whether judges in Brazil are becoming an entrenched oligarchy devoid of any accountability.

In Brazil, we are witnessing the establishment of a judicial elite endowed with extraordinary powers that allow them to take advanced decisions against laws contrary to their personal interests. Some Brazilian judges actually believe that the judging process is entirely subjective in nature.

This is how former Supreme Court Justice Marco Aurélio Mello described his own particular method of deciding cases: “Whenever I’m faced with a controversial case, I’m not looking for the dogma of the law. I try to create in my human character a more adequate solution.

Real-world consequences

Activist judges like him often interfere in legislative affairs and government policy to advance their more “progressive” agenda. On June 26, 2019, for example, Judge Luis Roberto Barroso ordered that transgender prisoners who were born biologically male go to women’s prisons because, according to him, “it is the only measure that allows them to have an environment compatible with their life. gender identity.” A year later, it also ruled that homophobia and transphobia should be classified as crimes of racism under current anti-discrimination legislation.

A serious problem in Brazil is the existence of so-called “monocratic rulings,” where a single judge can rule on a variety of issues with far-reaching ramifications. Each judge has the power to suspend a hearing without further consideration and to adjourn a hearing indefinitely, as well as to issue interlocutory injunctions on matters of substantial impact.

Between 1988 and 2018, an estimated 72% of all cases decided by the Supreme Court were based on these “monocratic decisions”.

In Brazil, the judges of the Supreme Court have very ambitious political objectives and make decisions accordingly. In one of his academic articles (pdf), Judge Barroso attempts to justify his activism by claiming that his court “enjoys a position of supremacy” over the other two branches of government, the executive and the legislative. This “supremacy”, he argues, is related to the interpretation of what the law should be, thus “requires an exercise of political power by the court with all its implications for democratic legitimacy”.

Barroso openly advocates a broader involvement of the Court in “the realization of constitutional purposes and values”, which translates into a higher degree of interference in the sphere of activities more often associated with the legislative and executive powers.

In many cases, there would be no real conflict of powers because, according to him, there would only be the occupation of the empty spaces left by the other branches of government, so that unelected judges like him could just intervene.

Judges don’t make the law

At the heart of Barroso’s method is the notion that, in deciding a case, a judge must improve the law if that area of ​​the law appears to be defective. This can be justified by the apparent failure of the legislator to reform the law and it is therefore up to the judges to assume the task.

Lord Reid, one of the most eminent judges of the 20th century, responded to the assertion that it is incumbent on judges to do what Parliament should have done, but failed to do, by saying that “where parliament feared to tread on it is not for the courts to rush.

Epoch Times Photo
Brazilian President Jair Bolsonaro arrives at a resort hotel where he is expected to meet Elon Musk in Porto Feliz, Brazil May 20, 2022. The CEO of Telsa and SpaceX tweeted that he was in Brazil to help bring internet service to rural schools in the Amazon and to help monitor the environment of the Amazon. (AP Photo/Andre Penner)

The constitutional role of judges is not to make laws but to dispense justice according to law. Judges swear to apply existing law and not engage in contentious debates about it, and certainly not create “new laws”.

According to Dyson Heydon QC, a retired Australian High Court judge (pdf), “a judge who does not like the constraints of membership in the judiciary because they prevent the execution of a program or of a particular agenda, should leave the group, join or start a political party and seek to enter a legislature.

To assert that unelected judges have a role to play in improving the law is, in the words of former Australian Chief Justice Murray Gleeson, to say that “judges have no right to base their decisions regarding the validity of legislation on their personal approval or disapproval of the policy”. of legislation. When they do, they lose their legitimacy.

Power without responsibility

A recent survey by DataPoder360, published on June 15, reveals that 26% of Brazilians consider the performance of Supreme Court justices to be bad or horrible. They are perceived positively by only 23% of the population. These results indicate a serious lack of trust in members of the Supreme Court.

On September 7, 2021, hundreds of thousands of Brazilians took to the streets of major capitals to protest against judicial activism. “Our country cannot continue to be held hostage by a few individual judges,” Bolsonaro said.

It was an apparent reference to Supreme Court justices, particularly Alexandre de Moraes and Luís Roberto Barroso, whom Bolsonaro accuses of constantly attacking him and blocking his ability to govern on behalf of the people. They had ordered an investigation into the president and his entourage over false allegations of “spreading fake news” in the government.

According to JR Guzzo, a well-known journalist in Brazil, “the 11 members of the Supreme Court seriously believe that they can do whatever they want. They can free corrupt politicians and drug dealers…. They can even arrest members of Congress and journalists for crimes of opinion.

Unfortunately, there is only one thing that these members of Brazil’s highest judicial court seem hopelessly unable to do: uphold the Brazilian Constitution. As a result, the main threat to democracy and the rule of law in Brazil comes from an unelected judicial oligarchy devoid of any accountability and democratic legitimacy.

The opinions expressed in this article are the opinions of the author and do not necessarily reflect the opinions of The Epoch Times.

Augusto Zimmermann

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Augusto Zimmermann is Professor and Director of Law at the Sheridan Institute of Higher Education in Perth. He is also President of the Western Australian (WA) Legal Theory Association, Editor of The Western Australian Jurist and was a member of the WA Law Reform Commission from 2012 to 2017. Zimmermann is Adjunct Professor at the University of Notre Dame Australia, and is the author of numerous books, including “Direito Constitucional Brasileiro”, “Western Legal Theory” and “Christian Foundations of the Common Law”.