Constitutional erosion in the digital age: raise of authoritarianism in Brazil

In Brazil, the 2018 election was marked by the growing number of fake news and by the far-right candidate, Jair Bolsonaro, digital campaign. After elected, his strategy to prioritize communication through social media has remained, as well as the continuous spread of disinformation and fake news, including about COVID-19. Furthermore, in 2019, the creation of a vast database of Brazilian citizens by decree had raised concerns about the dangerous of such a concentration of data. Measures aimed to centralized and control data have worsened during the COVID-19 pandemic, despite the government’s attempt to minimize the seriousness of the disease. Therefore, this paper claims that, faced with the scenario of domestic and comparative constitutional erosion, the association among systematic disinformation spread, surveillance and the COVID-19 pandemic can cause serious damage to the Brazilian democracy.

Constitutional Erosion in Brazil: steps towards systematization

Based on Daly’s alert about the need for mapping concepts, this paper intends to contribute to the systematization of Brazil’s constitutional erosion literature. It divides the search between structural and substantial terms. On the structural side, it finds a prevalence of executive and judicial led attacks towards constitutional and legal norms contribute to the reduction of freedom of expression and minority group’s rights, and that perpetrate an illiberal agenda. On the substantial side, there is a mapping of concepts dedicated to the increase on polarization and a lack of confidence in institutions. One of the main findings is that Brazil’s academia is in touch with the global state of the art, importing and translating concepts. It also presents Emilio Meyer constitutional erosion as a concept capable of embracing the country’s nuances, since it is dedicated to attacks against constitutional structures linked to Brazil’s constitutional identity and social-democratic project.

Distrust of elections: an act in the drama of the Brazilian democratic erosion

Brazilians’ dissatisfaction with politics and mistrust of political parties and elected officials has been documented since the 2000s, but Brazil’s distrust of election results is a more recent phenomenon. According to Gallup (2018), the number of Brazilians who see elections as honest has decreased since 2011 to reach 14% in the 2018 Presidential elections. President Bolsonaro himself has raised suspicions against the voting machines as his victory was only obtained in the second round. However, the causes of the phenomenon precede his influence and its consequences tend to last after his tenure. Against this scenario, I invite us to ask what one can reasonably expect from the constitutional principle of electoral integrity. Based on the answer, I claim that despite voicing concern against a supposed lack of accountability, most accusations should be taken as expressing the opposite: dissatisfaction with the high level of integrity that the electronic voting system has guaranteed.

Constitutional Crisis as a Crisis of Democracy: The Brazilian Judicial Branch’s (Dis)trust on The Rule of Law

In Constitutional Theory, one of the main institutional roles of the Judicial Branch is to defend democracy and fundamental rights. Latterly, however, judicial decisions taken in the context of “Operation Carwash” point to a “temporary suspension” of some basic positive Brazilian norms, on the grounds of hardening criminal law interpretation, as “exceptional times” would demand “exceptional rules”. This paper discusses the relation between exceptional judicial decisions, which institutionally authorize the temporary removal of constitutional norms for “purposes of moralization”, with the pavement of authoritarian ideas that gradually erode the democratic regime. In this sense, the concept of constitutional crisis is presented as the double face of a democratic crisis. After all, is it reasonable to accept that magistrates define what is a “state of normality” and what is a “state of exception” in order to determine whether or not they will respect the current legal order?

The role of Lava Jato operation in Brazil’s Constitutional Erosion

This paper aims to discuss the role of Lava Jato operation, which aimed to face cases of corruption in Brazilian politics, in preventing former President Luís Inácio Lula da Silva to take part in the elections of 2018, what led to the election of the extreme right-wing candidate Jair Bolsonaro. Therefore it will be presented how the decisions of the Brazilian Supreme Court on the possibility of executing a sentence of deprivation of liberty before the process is res judicata played a key role in this process. It will also be discussed how the Supreme Court itself recognized the violations on the due process of law occurred during the judgments of the cases involving former president Lula and the investigations developed in the scope of Lava Jato. The above mentioned episodes will be articulated with the concept of constitutional erosion, as they are central do demonstrate the misuse of the Judiciary to promote political goals.