Brazil’s Authoritarianism Anteroom: A Meeting Between Judges and Military

Emilio Peluso Neder Meyer

Federal University of Minas Gerais

Editors’ Note: This is an adapted version of a Portuguese-language article published in Consultor Jurídico on 27 October 2018: ‘Na antessala do autoritarismo, militares recebem os membros das cortes’. The link to the original article is here. 

The world observed Brazil during the past weeks in a state of astonishment. Newspapers from the most varied editorial lines seemed to not bore themselves with emulating the old adage “do not say I did not warn you” as we approached the end of the electoral process that decided for Jair Bolsonaro as the next President (see e.g. the New York Times, Washington Post, The Economist and the Financial Times). 

More than a singular threat, what we confronted seems to take part of the same regression of the third democratic wave imagined by Samuel Huntington. Of course, one must consider very important contextual variants. While Trump confronts judicial institutions in the U.S. at the same time that leaves the UN Human Rights Council, Orbán in Hungary pushes for the “exile” of the Central European University for Austria and is warned by the European Parliament for the recurring aggressions against the rule of law. Erdoğan in Turkey has counteracted a classic coup d’état attempt (an open-ended “coup d’état”, as Nancy Bermeo puts it) by expanding executive powers via constitutional amendment and promoting a cleansing of the public services, leading to 178,000 accused individuals discharged from office. Duterte fights a drug war in the Philippines with extra-legal executions that has reached the sum of 4,500 dead people. The European Court of Justice issued an injunction on the illegitimacy of the polish “Law on the Supreme Court”, the result of the governing PiS (Prawo i Sprawiedliwość) Law and Justice party’s rule, a statute aiming at retiring several judges of the court who are viewed as opposing the party’s policies.

One cannot say that these are isolated cases. They do reflect a trend toward the spread of authoritarianism that calls for attention. But how should we conceptualize authoritarianism? Jonathan Haidt and Karen Stenner, studying the current far-right populism (in Cass Sunstein’s collection Can It Happen Here: Authoritarianism in America) classify conservatives along three different lines: the laissez-faire conservatives, the status quo conservatives, and the authoritarians. There are no huge problems for the first types of conservatives concerning the complexity of contemporary societies: authoritarians, however, demand the imposition via a specific authority (oneness) to other people of the same values (sameness) that must be shared on an obligatory basis. Authoritarianism is contrary to themes that praised in present democracies, namely, pluralism and diversity.

Stenner and Haidt also checked authoritarianism growth using an empirical research methodology that drew on Europulse (a large global omnibus survey platform) in three different contexts of recent authoritarian political decisions: in the U.S., with Trump’s election; in the United Kingdom, with the Brexit; and in France, with Le Pen’s rise. Before that, however, it was possible to confirm the presence of authoritarians in 29 European countries plus the U.S. Such presence was tantamount to an average of 30% of interviewees. This number corresponds to what Stenner calls “authoritarian predisposition” in her “authoritarian dynamic” theory. The problem appears when such a predisposition grows in moments of “normative threat”: the loss of legitimacy by the representative authorities, institutions failing to attend to their duties, and so on. From a latency we go to a prevalence.

Brazilian society, forged in the pervasive context of slavery and infected by it, offers an appropriate space for authoritarians. So when a soldier and a corporal seem to be enough for shutting down the Brazilian Supreme Court, we will always have someone to say: “he really did not mean it” or “this is what should really happen”. Of course, authoritarians are not a homogeneous block. Several people who voted for Bolsonaro have economic, social and finance reasons to not recognise the feasible destruction of institutions. Yet, it is here that appears a type of juridical responsibility derived from the consolidation of the institutions that we ourselves created and shall keep.

We experienced the most enduring dictatorship in Latin America, lasting from 1964 until 1985, although the elected president denied it the day after his election. In this period of time, two elites played different roles with different levels of influence; namely, the military (obviously) and the judges (not so obviously). More than trying to differentiate the level of contribution of each of these actors, maybe it is interesting to reflect on their relationships, especially considering the role of juridical legitimation. As comparative research has shown, differently from Chile and Argentina, whose dictatorships needed to refer strongly to extra-legal methods of elimination of political opposition, the Brazilian judicial branch canalized a good deal of the repression through Military Justice. Such practices did not turn our dictatorship into a soft one: on the contrary, it allowed for a major consolidation of the regime based on an artificial legitimation process, as well as an enduring system. Our juridical elite was part of this “varnishing” role.

As soon as the Brazilian Constitution of 1988 was enacted, little was advanced to make effective changes in the judicial branch (for the problems and limitations of the changes that came with the Brazilian Constitution of 1988 and the authoritarian role of the judicial branch in present constitutional crises, see here). Some reforms took place both in that moment as afterwards, with the enactment of Constitutional Amendment no. 45 of 2004, which created the National Council of Justice. However, to conclude that there were changes in mentality, capacity and organisation that could make effective the important system of human rights that was created is an exaggeration. The important issue is that criticisms of the courts were made respecting the preservation of the institutions, especially when they came from an academy worried with the role of the Brazilian Supreme Court. Limitations in the field of institutional reforms also created barriers for an adequate relationship between civil power and military in the period after 1988. Not even the creation of a Ministry of Defense commanded by a civilian to lead the three Armed Forces, helping the President, resulted in a civilian prevalence over the military. 

The proximity of these two elites in the democratic period will never be completely assessed without paying attention to the auto-amnesty granted in 1979, which immunised successive military governments from prosecution for crimes committed under during the dictatorship. The controversial interpretation of Statute Law no. 6.683 of 1979 per the Constitution of 1988 was held constitutional by the Brazilian Supreme Court in 2010 and that, until now, is an obstacle to the criminal liability of agents that committed crimes against humanity (although Brazil was condemned twice by the Inter-American Court of Human Rights, in the Gomes Lund and Herzog cases: read more here). Finally, things can get much worse when a general is nominated an aide of the Brazilian Supreme Court’s new President, who does not see any problem in calling the 1964 coup d’état a “movement” (for a critical assessment of the aide’s speech, see here). All of this without the Armed Forces, as an institution, having ever recognised that violations of human rights were committed by their members.

This mix of ingredients have all the signs to support the flourishing and consolidation of authoritarianism in Brazil. Right before the second election round for President, Electoral Regional Courts issued several rulings ordering universities to take down flags in which manifestations against fascism and in praise of democracy appeared, on the basis that they breached electoral laws. Two considerations are important here. First, the judicial rulings were weighted in favour of one presidential candidate’s (Bolsonaro’s) preference, against which the students were protesting, at the same time that they have clearly shown that this candidate has an authoritarian profile. Second, they bring to the surface the best translation of the marriage between institutions in what can be one of the translations of fascism: the accomplishment of the promise of violence against political dissent. The anteroom, already occupied by several military in political offices in Temer’s administration receives the honorable members of the courts. The seed that was planted will grow fertile with Bolsonaro’s election. It is of fundamental importance that the same institutions and rights created thirty years ago be used to control the authoritarian and the fascist faces of Brazilian political phenomena in present days. 

On the 28 October 2018, the day before the elections, the Brazilian Supreme Court Justice Cármen Lúcia suspended all lawsuits that deal with political manifestations in universities and the decision was confirmed by the full bench in an interesting sign to the new government. However, Famous Federal Judge Sérgio Moro, the one responsible for operation car-wash (a huge corruption investigation that sank Brazilian politics into crises since 2015) and for Lula’s imprisonment, accepted the offer of Bolsonaro for the office of Ministry of Justice. The acceptance translates serious doubts on Moro’s and Brazilian judiciary rulings’ political biases. In the end, there are serious questions if judges will prefer to walk side-by-side or against the new government.

Emilio Peluso Neder Meyer is Assistant Professor of Constitutional Law at the Federal University of Minas Gerais, Brazil.

Suggested citation: Emilio Peluso Neder Meyer ‘Brazil’s Authoritarianism Anteroom: A Meeting Between Judges and Military’ IACL-AIDC Blog (November 7 2018) https://blog-iacl-aidc.org/blog/2018/11/6/brazils-authoritarianism-anteroom-a-meeting-between-judges-and-military