Moderating Powers? Military and Judges in Brazilian Undemocratic Revival

Even though a lot has changed since 1891, it is still a regular invocation in political debates to treat the military and the courts as moderating powers. This proposal intends to recover and criticize such ideas. Going back to the Brazilian dictatorship of 1964-1985, it will explore how militaries interfered with judiciary power in order to avoid any kind of rebellion. Under the Brazilian Constitution, the tense line between civilian and military will show that to restrict political activities from such branches is a difficult task. Back to now, the proposal will unravel how both militarization and judicialization of politics will overlap in Bolsonaro’s term. This work will analyze signs of the “weak democracy syndrome” in Brazil, considering its middle income status, and focusing on a critical approach on courts and the military as actors that can work to destabilize, rather than consolidate, new democracies and their endeavor to overcome an authoritarian past and avoid its return.

The Italian Constitutional Court in-politics

The Italian Constitutional Court (ICC) presides over vital ganglia of democracy: the admissibility of abrogative referenda; the validity of electoral law; the resolution of conflicts among State’s powers. On the second point, in 2014 the ICC took arguably the most controversial decision of its recent history, inducing a shift from a majority-assuring system to an almost purely proportional one, which is the background of the current political situation. Concerning referenda, a long-standing case-law gives the ICC wide discretion in allowing popular consultations, often with powerful political effects. While most of these decisions are matter of a sharp debate, the general perception is that the ICC is an authoritative and not-politicized body. Nevertheless, Italy is a case in point that, however independent and well-meaning a constitutional tribunal may be, its action is not sufficient to guarantee a well-functioning democracy and insulate it against the risks of populism.

The Mutation of Juristocracy in the Context of Global Democratic Decay

When Ran Hirschl decried ‘juristocracy’ in the mid-2000s the transfer of power worldwide from representative institutions to judiciaries seemed unstoppable. Today, that global trend appears to have hit a wall: courts have been delegitimised or diminished by governments from the USA to Israel to Poland – even worse, they are viewed as having aided the deterioration of democratic rule. However, look more closely and expansive judicial power has simply mutated in the face of perceived threats to liberal democracy. The Indian Supreme Court has sought to build institutional capital against the Modi government through its rights jurisprudence. The gaze has shifted to lower courts as democracy defenders in Poland and the USA. In Europe, courts are at the centre of pushback against the Polish government. This talk will analyse these recent developments and discuss how they fundamentally alter longstanding debates on judicial power.

Judicial collaborationism in the guise of “classic separation of powers”

The Brazilian Supreme Court faces the starkest challenge to its authority since the country's transition. The challenge is manifold and includes: traditional court-domesticating package of authoritarian regimes (flooding the court with apologists of the regime, either by expanding the number of seats or by retirement measures); threats of non-compliance; threats of reactions by the legislative body through constitutional amendments; aggressive public speeches against the court's decisions. The corrosion of the court's authority, however, does not spring only from exogenous forces and ideological disagreement, but also from endogenous fractures of ethics and procedures, which are arbitrarily manipulable by individualist actors. The current president of the court has announced that the institution has to rescue the classical separation of powers and help finding agreements. This paper intends to reconstruct these moves and interpret it in light of an idea of judicial collaborationism.

Barroso’s Theory of Constitutional Legitimacy: A Critical Approach

Justice Roberto Barroso is one of the most influential judges in Latin America. In this paper, we challenge his theory of constitutional legitimacy. Barroso believes that the legitimacy of constitutional adjudication stems from three different functions performed by courts. First, courts play a counter-majoritarian role; second, a representative role. Although judges lack votes, they are better positioned than legislatures to interpret the will of the people because they are motivated by reason, rather than interests. Third, courts can break the political inertia and lead society. Although these powers should be used sparingly, courts can act as an “enlightened vanguard” and push history forward. We argue that none of these claims is justified and that Barroso’s own reasoning is no different in quality from the ordinary practice of elected politicians. Barroso’s theory of judicial legitimacy has facilitated an unprecedented politicization of adjudication and a serious threat.

The Brazilian Judiciary Under Attack

In the last elections an openly authoritarian President was elected. As a candidate, he already presented all the evidence of an autocratic behavior, and after elected, in his first months of government, Bolsonaro is presenting a series of measures that show the establishment of a “democratorship” in Brazil. This work will analyze several evidences that demonstrate the risk that Brazil can also become another dictatorship of the XXIst century, that is using an autocratic legislation and constitutional amendments to cover an authoritarian government. The process of defeating democracy and spoiling its institutions is gentle and gradual, masked by legal-constitutional instruments. In this context of crisis, the Judiciary can be a containment dam of conservative confrontations against fundamental rights. But do the Brazilian Constitutional Democracy have emergency clauses to protect this branch? Or the Judiciary without unwritten guardrails for its protection will be defeated?