The paper analyzes the increasing imbalance of civil-military relations in Brazil through the involvement of the Armed Forces in law-enforcement activities and in politics in recent years. It demonstrates that this process was followed by the construction and expansion of a legal framework aimed at legitimizing these activities, including the enlargement of military jurisdiction to decide cases involving civilians. It argues that this phenomenon occurs before the silences of institutions such as the Brazilian Supreme Court. The serious human rights consequences of these measures are exemplified by the case of the 2017 Salgueiro slaughter (“Chacina do Salgueiro”) in Rio de Janeiro.
The constitutional promises of 1988 are still not a reality for various vulnerable groups in Brazil. In this scenario, considerations on the crisis faced by human rights and their system of protection demand more specific contours. African-based religions bring together the religious expressions of the descendants of several enslaved peoples who have historically been persecuted by the Brazilian State. Despite the recognition of the right to freedom of religion by the 1988 Constitution, it is possible to identify persistent state practices against such religious segments. New forms of violation have also been identified in the daily life, such as the action of drug traffickers who prevent the so-called “Povo de Santo” (African religious people) from expressing their faith. It is relevant, therefore, to identify the technologies through which these practices present themselves so that effective mechanisms of protection can be built and strengthened by the legal system.
The paper is the result of a broader research on the role performed by universities in protecting democracy through the exercise and safeguarding of rights and freedoms, such as freedom of thought, freedom of expression and academic freedom. In Brazil, during the recent years of countless attacks against democracy and fundamental rights provided for in the 1988 Constitution, university autonomy played (and may still play) a central role in defending the democratic order and the mentioned rights. In support of this claim, we present three judicial review cases of the Brazilian Supreme Court (“Supremo Tribunal Federal”) in which the understanding of the constitutional dimension of university autonomy played a fundamental role. We conclude that universities are democratic watchdogs: “instituições de garantia”, in the sense defended by Ferrajoli.
Economists prescribe that economic cycles be balanced through the adoption of countercyclical policies. Dynamically understood, the counter-majoritarian function of constitutional courts performs an anticyclical function. In the face of governments that do not show commitment to democratic institutions, there must be a “situational reduction of deference” for executive orders and politics, resulting in the adoption of rigorous parameters for the control of state acts. Thus, constitutional courts cooperate with other institutions to mitigate the extremism of political cycles. The countercyclical function provides balance to the system, preserving what cannot be under the discretion of majorities: fundamental rights and democratic procedures. To deal with the current process of democratic erosion in Brazil, the anticyclical function applies the instruments of militant democracy. The study examines the exercise of the anticyclical function by the Brazilian Supreme Court.
This paper discusses the democratic backslide in Brazil, connecting the process with deep deficits in the Brazilian constitutional culture. First, it discusses the mistakes in the narrative adopted by some Brazilian legal scholars and political scientists, according to which the country is not facing a democratic backslide, because “the institutions are working”. The paper shows that there are serious and growing failures in the operation of Brazilian institutions in current times. Then, the paper argues that, in order to ensure the strength and resilience of a constitutional democracy, a constitutional culture embedded in society is extremely important. Nevertheless, Brazilian constitutional culture is still very fragile, as shown by the election of President Jair Bolsonaro and the continuous support for his government by a large portion of the electorate, in spite of his continuous and radical attacks against democracy and the most basic tenets of the Brazilian constitution.