The Chief Justice of the Brazilian Supreme Court: Institutional and Constitutional Self-Destruction

—Emilio Peluso Neder Meyer & Thomas da Rosa de Bustamante, Federal University of Minas Gerais and Brazilian National Council for Scientific and Technological Development (CNPq)

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)[1] 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.[2] 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.

One can try to interpret the facts in an alternative way. Justice Toffoli’s actions could be depicted as an attempt to strategically avoid measures that could pack the Brazilian judiciary. Back in 2018, he nominated General Fernando Azevedo e Silva (current Minister of Defense) as his advisor, a move that has no explanation except to try to bring judges closer to the military. In Brazilian politics, which are still marked by the difficult relationship between civilian and military powers, if the executive branch were headed by someone distant from the Armed Forces, Justice Toffoli’s choice would be unthinkable. With the growing militarization of politics during Michel Temer’s term and the election of Bolsonaro, the nomination can be explained, although it cannot be justified under the Brazilian Constitution of 1988. In effect, article 142 of the Constitution clearly subordinates the command of the military to the supreme authority of the President of the Republic.[3] The norm encapsulates an institutional design in which the Constitution and the law shall govern a republican and civilian relationship between branches of government and the Armed Forces. The empire of the rule of law must be guaranteed by autonomous courts, not by judges threatened or cowed by a military insurgence.

Some judges and the military in Brazil appear to be committed to the view that it is part of their task to put an end to political crises, in a role that they depict as a ‘moderating power’.[4] This resort to a moderating power echoes the Imperial Constitution of 1824, which attributed to the Emperor the power to act as a ‘branch beyond branches’ in the sense of Benjamin Constant. Curiously, historian Lilia Schwarz associates the absence of any reference to the concept of corruption during the Empire to the impossibility of any effective check caused by the emperor’s moderating power to interfere.[5]

In spite of the fact that Brazil has had six constitutions since the end of the Empire, the idea of a moderating power still persists in our political culture and is from time to time asserted by the courts and the military, regardless of the fact that there is no provision in the Constitution of 1988 allowing for its existence. This is an additional reason why it sounds so awkward that the president of the Brazilian Supreme Court attributes to himself the duty of publicly celebrating a pact between the different branches. What is the constitutional basis for acting in such a crude political fashion?

The question is even more provocative if we consider Justice Toffoli’s ‘economic’ agenda. Toffoli’s views on the role of the court are inconsistent with a liberal, republican, communitarian, or procedural justification of judicial review. His behavior appears to be a populist position that poses a more serious threat than that of individual misconduct of members of the court or of the appeal to the ‘social sentiment’ of the majority in the justification of legal decisions. The Brazilian Constitution of 1988, which has been promulgated by an effectively democratic constitutional assembly, embraced a form of social constitutionalism.[6] Even if it is possible to debate the merits of the constitutional text, the appropriate forum for that debate would be the National Congress, rather than at a conference for investors by the president of one of the most (if not the most) important institutions charged with the duty to defend the Brazilian Constitution of 1988. 

The Chief Justice of the Brazilian Supreme Court has plenty of powers: he is responsible for the court’s docket. At the same time, he plays a pivotal role in constitutional symbolism and institutional responsibility. Creating an exceptional procedure to investigate fake news against the members of the court, mixing the positions of accusation and trial, is not the adequate answer. Worse than that, to argue that the constitution should be ‘dehydrated’ in the name of economic objectives means effectively acting like a legal consultant of the executive and the legislative branches, with a clear intention of replacing the constitutional project.

Being subordinated to momentary political programs is the opposite of, not the equivalent to, responsible adjudication. This conduct becomes even more worrying given that president Jair Bolsonaro, during his electoral campaign, explicitly suggested an increase in the number of Justices of the Brazilian Supreme Court. Furthermore, this year members of his party debated a proposal for lowering the retirement age, with a view to providing new nominations to the Court.[7] In a situation of enduring political crisis, where the executive promotes a true ‘constitutional blitzkrieg’, it is the role of legal institutions to defend constitutions against the uncontrolled managing of power by a gradually aggrandized executive. Justice Toffoli seems to be worried about the excess of ‘constitutional rights’ in the Brazilian Constitution of 1988, and to be telling the Court he presides over to read the ‘signs’ of the 2018 electoral results. By following this path, the president of the Supreme Court abrogates his duties, harming the institution of the court and the Constitution that it should protect, perhaps even paving the way for its destruction.

Suggested citation: Emilio Peluso Neder Meyer & Thomas da Rosa de Bustamante, The Chief Justice of the Brazilian Supreme Court: Institutional and Constitutional Self-Destruction, Int’l J. Const. L. Blog, Aug. 24, 2019, at: http://www.iconnectblog.com/2019/08/the-chief-justice-of-the-brazilian-supreme-court-institutional-and-constitutional-self-destruction/

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[1] Justice Toffoli used the term ‘dehydrate’, or desidratar in the Portuguese language, which is a verb that does not only refers to processes of drying or removing water of something, but also, in a figurative way, taking out the unnecessary qualities of an object.

[2] See Kriszta Kovacs and Kim Lane Scheppele, The fragility of an independent judiciary: Lessons from Hungary and Poland and the European Union, Communist and Post-Communist Studies (2018), 1-12.

[3] ‘Article 142: The Armed Forces, made up of the Navy, Army and Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and intended to defend the Nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order’.

[4] See Emilio Meyer and Mariana Oliveira, Moderating Power? Military and Judges in Brazilian Democratic Backsliding, Manuscript on file with authors (2019).

[5] See Lilia Schwarz, Sobre o Autoritarismo Brasileiro (Companhia das Letras, 2019) 97.

[6] For a critical approach on how a previous constitutional amendment that created a public spending cap during Michel Temer’s administration would provoke constitutional dismemberment in the social profile of the Brazilian Constitution of 1988, see Richard Albert, Constitutional Amendment and Dismemberment, 43 The Yale Journal of International Law 1 (2018), 41, and Juliano Zaiden Benvindo, Preservationist Constitutional Amendments and the Rise of Antipolitics in Brazil, Int’l J. Const. L. Blog (Oct. 26, 2016),http://www.iconnectblog.com/2016/10/preservationist-constitutional-amendments-and-the-rise-of-antipolitics-in-brazil.

[7] See Felipe Recondo and Luiz Weber, Os Onze: O STF, Seus Bastidores e Suas Crises (Companhia das Letras, 2019) 328.