As Brazil becomes one important example of democratic decay, this paper explores the maintenance of an authoritarian mindset in some crucial moments of Brazilian recent history. It shows how this authoritarian mindset has had a vigorous capacity of reinventing itself as democratic in both explicitly authoritarian and democratic moments. Brazil has a fascinating history of transition to democracy and improvement of the rule of law. However, some impactful authoritarian legacies have not been overcome and have impaired the development of the country. This is the paradox many of the Brazil’s recent developments reveal: on one hand, there is visibly an institutional improvement, so the obedience to the “rule of law” has indeed become a more serious concern; on the other hand, that authoritarian mindset is also gaining momentum, as currently observed with the rise of Jair Bolsonaro as President. The future of Brazilian democracy depends on which side of this paradox will prevail.
Because of decades under authoritarian regimes, Latin American countries – such as Brazil – experienced longstanding periods of political instability and human rights violation. Dissolution of Parliaments, Court-packing and hegemonic Executive were part of this scenario. We assume that the pursuit of a limited government and protection of human rights, which are the very core of the constitutional democracy, shall not be understood separately from the system of checks and balances. For this matter, in the midst of a political crisis, the Brazilian case displays important challenges to Public Law due to the rise of a populist agenda recently. We claim that the new threats to democracy are related to an autocratic legalism, which means that political actors have been using legal devices in order to achieve illegal or unconstitutional aims. In this sense, it´s a more subtle, gradual and yet dangerous move that, in the end, might undermine constitutional values via democratic procedures.
In a 2017 landmark case, the Brazilian National Justice Council decided to take disciplinary action against four judges who had participated in a political demonstration in opposition to the impeachment of former President Dilma Rousseff. The decision was later invalidated by the Supreme Court, but the incident shed light on the burning question of judicial freedom of political speech. This paper examines the arguments brought up before the Council and the Court, with the purpose of drawing a comparison with the Interamerican Court of Human Rights’ ruling in the López Lone et al. versus Honduras case. Premised on the idea that the way the judiciary deals with politics and media visibility is a key factor for/against the development of the Brazilian and Latin American democratic rule of law, the article advances that judges ought to be free to express political views and defend political positions as long as the exercise of such freedom does not jeopardize the independence and the integrity of the special contribution the judicial apparatus has to offer to the practices of the state.
All around the world (e.g. United Kingdom, Spain, etc.) mechanisms for participatory democracy (e.g. referendum, plebiscite, popular consultation, citizen law proposal, etc.) have emerged, mainly as a result of the failure of the representative democracy model to capture society´s needs, socioeconomic inequality, the increase of corruption and the lack of rule of law. This has generated both anger and the rise of social movements demanding justice and the recovery of all sort of rights. Latin America and, particularly Mexico, have not been the exception. However, considering the Latin American history with repressive governments and the recent popular consultations that have been conducted by the Mexican government, under no compliance with constitutional and legal procedural rules, this type of mechanisms can open the door for authoritarian governments. Should this type of mechanisms be restricted to certain matters or should the representative democracy model renovate itself?
The paper will describe and analyze how, in the thirty years of the Brazilian Constitution of 1988, military and judges have acted as political elites who have pressured, advised, and interfered in political issues in order to change the social-democratic landscape. It will approach the parallel empowerment of the judiciary, detailing how it has contributed to the constitutional crises surrounding Brazil. Considering the return of the military to Brazilian politics, this work will present the different positions and prominent government posts that were allocated to the military during the Temer administration. It will cover the strong participation of military in the 2018 elections for the executive and legislative branches, including Bolsonaro’s presidential victory and the formation of the cabinet. Finally, it will establish the different relationships that can be described between the courts and the military.
Since the campaign, then presidential candidate Jair Bolsonaro showed signs of authoritarianism. To list a few, he vowed to shoot opponents, praised dictatorship-era military officials who committed torture, attacked media outlets, etc. Under the criteria proposed by Steven Levitsky and Daniel Ziblatt in How Democracies Die, he averaged high in all “Four Key Indicators of Authoritarian Behavior.” Nothing has changed since he took the oath of office. He insists on assailing independent coverage (even threatening some media outlets with cuts of official funds), portraits adversaries as enemies, and achieved zero practical results so far. Nevertheless, some are noticing that different actors and institutions started to react forcefully to tentative encroachment on democracy. The paper aims to examine whether the “guardrails of democracy” (unwritten rules of “mutual toleration” and “institutional forbearance”) can survive and what constitutional strategies are available.
Liberal and democratic constitutionalism is usually taken for granted. Nevertheless, the “constitutional mold” can be kept untouched while “liberal constitutional content” is drained out to make room for authoritarian rule. This process is known as democratic backsliding. But how can a constitutional court respond to an undemocratic agenda? The answer may rely upon one of the functions of judicial deferral: to avoid a head-on collision between the court and other political actors while the judiciary entrenches itself as an institution. Because constitutional retrogression presents itself as a steady corrosion of the main pillars of liberal democracy, courts must fine-tune their judicial responses to the pace of events that can lead to democratic backsliding. When it comes to the Brazilian Supreme Court two obstacles emerge: the Court lacks an institutional identity and still needs to learn how to embrace its political duties through a pragmatic approach to constitutional law