Brazil’s Supreme Court Undermines the Constitution in the Name of Democracy
Supreme Court Justice Alexandre de Moraes (left) and former Brazilian President Jair Bolsonaro (right)
by DavId Agape
The former President of Brazil, Jair Bolsonaro, along with numerous aides and allies, is under investigation for an alleged coup attempt following his election defeat to leftist Lula da Silva. On February 8, the Federal Police (PF) initiated an operation based on judicial orders issued by Justice Alexandre de Moraes of the Supreme Federal Court (STF). This operation entailed 33 search and seizure warrants, 4 preventive arrest warrants, and 48 alternative measures targeting the former president and his supporters. Bolsonaro has been barred from leaving the country.
There are at least nine secret investigations led by De Moraes against Bolsonaro and his allies, with the first one approaching its five-year mark this March. The operation targets 25 of the former president's allies, including high-ranking military officials and the president of the Liberal Party, Bolsonaro's party.
Despite serious indications of election manipulation in Brazil, such as De Moraes' biased handling of the electoral process and the persecution of Bolsonaro and his supporters, the US launched a campaign urging the Brazilian Armed Forces to accept the electoral outcome. An article published in O Estado de São Paulo newspaper by International Relations professor Oliver Stuenkel on the 12th revealed that this campaign involved the State Department, the CIA, the White House, the Senate, and the Pentagon.
The campaign included a visit to Brazil by Lloyd Austin, the US Secretary of Defense, who underscored the importance of civilian control over the military and security forces. In addition to Austin, other high-ranking officials, such as the CIA director and the National Security Advisor, visited Brazil for talks, particularly with the more radicalized military figures, conveying the message that any democratic disruption would lead to significant consequences.
The Supreme Court’s Censorship Crusade
Even though there may have been an attempt at a coup, which remains unproven, there's a significant issue with the conduct of the investigations. Claiming to defend democracy, De Moraes has overridden the Brazilian Constitution. The secrecy of most inquiries – kept off the judicial system's digital platforms – means some subjects don't even know the charges against them.
One flawed decision by De Moraes was to order a search and seizure at the home of Bolsonaro's son, Carlos Bolsonaro, alleging he sought privileged information from Alexandre Ramagem, director of Brazil's Intelligence Agency (Abin). However, evidence from WhatsApp screenshots in the case reveals the alleged discussion occurred months after Ramagem's tenure at Abin ended. Even though the operation was illegal, Carlos' computers and smartphones were collected.
Other cases include a homeless man arrested along with the protesters, but he went to Brasília in search of employment and only went to the barracks' door to get food, and the death of a man, arrested under suspicion related to January 8 activities, after De Moraes refused him adequate medical care.
Recently, De Moraes ruled that attorneys for the accused could not communicate amongst themselves, blurring the lines between lawyers and clients. Though clearly unlawful, this was ratified by the new Attorney General of the Republic (PGR), Paulo Gonet, appointed by President Lula da Silva. Notably, these operations have been initiated precisely with the PGR's change, as previous prosecutors criticized these actions by the STF.
According to André Marsiglia, a constitutional lawyer specializing in freedom of speech, the court has indiscriminately treated all parties involved – defendants, lawyers, and the investigated – as a single group, denying them comprehensive defense and the presumption of innocence, asserting only force is valid. He remarks this confusion represents a basic mistake that should have been evident. Horacio Neiva, a law Ph.D. and professor, also deems the communication ban between lawyers as illegal, noting previous restrictions on lawyers' rights, including accessing case files and making oral arguments in the Supreme Court.
Silvio Kuroda, a public law specialist and former advisor to a high court Justice, notes using illegally obtained information as the basis for police inquiries could render them void. He recounts how in 2018, then-President Michel Temer sought information from the Supreme Court to counter truckers' strikes led by leftist groups, fearing a coup. This information was used not only to manage the strike but also to mobilize the Armed Forces.
This information continued to be questionably utilized until 2022, to direct security actions and clear areas around military barracks against "anti-democratic" protests. Despite the Attorney General's Office's opposition, this information initiated new inquiries from STF.
Another concern is the “cherry-picking” selection of Federal Police’ officers for these operations by De Moraes, creating a "praetorian guard" serving his interests, corrupting their role of taking orders solely from the Executive, not the Judiciary. One PF agent, speaking anonymously, indicated officers outside De Moraes' circle live in fear, feeling under constant surveillance. De Moraes' allies have also conducted biased investigations. They've extensively used "fishing expedition" tactics, seeking evidence indiscriminately to build future cases against Bolsonaro and his supporters.
The persecution has been relentless, with efforts to link Bolsonaro and his allies to criminal acts. The Federal Police and Public Prosecutor's Office have also engaged in this pursuit. Absurdly, Bolsonaro has been accused of disturbing a whale on the sea. This led to growing public mistrust in the judiciary. Recent surveys indicate nearly 50% of Brazilians believe they are living under a judicial dictatorship. The few voices calling for military intervention years ago have swelled into a multitude in 2022, nearly six decades after the Military Regime's inception in Brazil as a "counter-revolution" against communist threats.
Public anger is justified as STF justices have unabashedly made pro-corruption decisions. In December, Justice Dias Toffoli canceled U$ 2 billion in fines against J&F for corruption in the Lava Jato operation, coincidentally benefiting a company which his wife represents as a lawyer. Consequently, Transparency International dropped Brazil ten spots to 104th out of 180 countries in its Corruption Perceptions Index. In retaliation, Toffoli launched an investigation into this organization.
The Inquiry's errors
To counteract the alleged establishment of a dictatorship, De Moraes has been suppressing civil rights in ways similar to various dictatorships around the world, like China and Venezuela. Many legal experts have condemned De Moraes' actions in the STF and have pointed out several issues with the operations:
Overly broad operation
The document penned by De Moraes, spanning 135 pages, discusses the existence of a "criminal organization" and covers not only the coup attempt but also a range of other accusations, such as: online attacks against opponents, attacks on institutions and the electoral system, misappropriation of government jewels, vaccination card fraud, and criticism of pandemic health measures. Beyond this "mix-up," the investigations' vague and broad nature stands out.
According to Marco Aurélio, a retired STF Justice, the operation against Bolsonaro has been "excessive" and is being conducted too broadly. He believes it's time for the STF to "ease off the accelerator."
"In law, there's a maxim: the means justify the end, not the end justifies the means. Acts of constriction [more invasive judicial measures] are not meant to determine whether a crime has occurred. They should start from indications of a crime, vehement indications, which must be indispensable for the investigation," Mello said to Veja magazine.
2. Conflict of Interest
Moraes should not be involved in this "State Coup" case since he appears as a potential victim: investigations revealed a document, supposedly written by individuals close to Bolsonaro, that declared a state of siege and ordered the arrest of De Moraes. The Justice is also involved in the trial of the January 8 attacks on Brazilian government buildings, similar to the Capitol's January 6 incident in the USA. In this case, he is also considered a victim, accusing the activists of planning his hanging after the coup. Although no evidence of this last accusation has been presented, it's already sufficient for De Moraes to be disqualified from judging the case. Recently, De Moraes ruled against a defendant from the 8J who was seeking his disqualification in the case due to bias. He personally rejected the motion for his own recusal.
According to lawyer Paulo Faria, De Moraes should not judge cases involving the former president due to suspicion, implying a personal interest of De Moraes that compromises the impartiality of the judgment. He states this violates Article 102 of the Brazilian Constitution. Faria also highlights that De Moraes' actions violate the prohibition of exceptional courts and disrespect judicial competence established in the Inter-American Convention on Human Rights. He concludes that De Moraes' actions constitute an abuse of authority and persecution, violating constitutional principles and international humanitarian law.
3. Legal basis for State of Siege
The draft found in the home of Bolsonaro's former Ministry of Justice and Public Security, decreeing a state of siege in Brazil, is the main evidence for allegations of an attempted state coup. However, according to lawyer Paulo Faria, Article 136 of the Brazilian Constitution allows the president to decree a state of siege in specific situations, arguing that Bolsonaro's actions were within his constitutional prerogatives.
Moreover, the decree depends on consultation with the republic's councils and security and, more importantly, authorization from the National Congress, which decides its opportunity and necessity. The president has only the initiative and the justifications.
4. Unexecuted Action
Brazilian law regarding state coups, extending to other crimes stipulated in the Penal Code, makes it clear that punishment will only occur in case of an attempted coup. In Bolsonaro's case, this did not happen. Paulo Faria emphasizes that the draft decree did not proceed, only preparatory acts for its decreeing, therefore, not even an attempt can be affirmed.
According to lawyer Hugo Freitas, a master in Law, the Brazilian Penal Code expressly states that preparing or inciting a crime is not punishable if it is not attempted. "The concept of 'attempt' is clear and defined by law: for an action to be considered an attempt at a state coup, it must involve violence or serious threat. Without demonstrating one of these elements, one cannot speak of an attempt," explains the lawyer.
Even Folha de SP, a newspaper opposed to Bolsonaro, recognizes that the criminal definition of Bolsonaro's coup plotting is controversial. And there are legal experts who understand that meetings about the decree were preparatory acts.
5. The Special Jurisdiction
Individuals investigated by order of De Moraes do not possess "Special Jurisdiction," a Brazilian legal mechanism that grants authorities the right to be investigated and judged by higher courts to prevent persecution. Neither Bolsonaro nor the others involved in these inquiries hold public office. Thus, all should be judged by a first-instance judge, allowing them the right to appeal to higher instances.
6. Double Standard and Hypocrisy
The same actions attributed to Bolsonaro and supporters today have been carried out by leftists in the past but did not receive the same legal scrutiny. According to research led by our team on A Investigação, the left has promoted ten times more attacks and vandalism on public buildings in recent years – some even at the same locations of the January 8 acts. These extremely violent attacks resulted in serious injuries and even deaths but had virtually no punishment.
Another curious fact: when Lula was arrested, PT militants claimed they would "take up arms" and put an "army on the streets" to defend the party's politicians from investigations. The current PT president, congresswoman Gleisi Hoffmann, said at the time that to arrest Lula, it would be necessary to "arrest and kill a lot of people." When President Dilma Rousseff, Lula's successor, was impeached, there was a query to the army by Lula's allies about the decree of state of defense to prevent demonstrations against the government. In none of these cases was action taken as is now seen against Bolsonaro.
Why haven't there been investigations and arrests in these cases?
It's interesting to note similarities with the persecution of Trump, who faced intense judicial persecution for possession of official government documents after leaving the presidency. At the same time, Joe Biden had his situation lightened for keeping classified documents in his garage due to being senile.
Unraveling the Operations' Motivations
"Armed Forces commanders cannot remain silent in the face of the arbitrary conduct of illegal processes, which affect their members outside of Military Justice. There are active officers being targeted for alleged offenses, including general officers. There's no justification for the omission of Military Justice," stated Senator Hamilton Mourão, former Bolsonaro’s Vice President, last week in the Senate tribune. He added, "The persecutory measures vary according to circumstances, disenfranchising some, arresting others, but they do not conceal their ultimate goal, the suppression of political opposition in the country."
Behind these operations ordered by De Moraes lies not only the desire to see Bolsonaro incarcerated and disqualified from future electoral races, but also to demobilize his supporters and dissolve his electoral base. In June 2023, the Superior Electoral Court (TSE), the organization that oversees elections in the country and is presided over by Minister De Moraes, declared Bolsonaro ineligible for 8 years.
Today, Bolsonarism represents one of the largest political forces in the country. The latest police operations, in fact, have occurred following Bolsonaro's appearances among crowds, whether on the streets or on social media. Lula, on the other hand, has been struggling with low engagement from his militants and has relied on the forced presence of public servants to carry out events.
In 2022, Bolsonaro was defeated by less than a 2% vote margin. Hence, there is concern that the right-wing movement might strengthen with his imprisonment, turning him into a sort of martyr. Despite this, there are already proposals to criminalize Bolsonarism and calls for his party's registration to be canceled. This, on the eve of this year's municipal elections, where Bolsonaro's party is favored in various capitals across the country, could be the harshest blow yet against the Brazilian right.
And most alarmingly: the actions of the Brazilian judiciary, more specifically by Justice De Moraes of the Supreme Federal Court (STF), are being viewed by other countries as a "test field on how to deal with the far right." And there is already mobilization for its application against Trump's election in the United States.
The similarities between what has been happening in the United States and Brazil are numerous, though each has its particularities. From the allegations of electoral fraud, accusations of genocide against Trump and Bolsonaro for their response to Covid, and the acts of January 6 in the US and January 8 in Brazil. In addition, of course, to attempts to keep Trump and Bolsonaro out of the ballots.
Although it cannot be claimed that there was electoral fraud in Brazil due to problems with electronic voting machines, as the system does not allow for auditing because they are first-generation electronic ballot boxes, it can be said that there was indeed fraud. The electoral process led by the TSE chaired by De Moraes was carried out unfairly. Bolsonaro asserts that the role of the TSE in censoring several individuals was pivotal to Lula's victory. Furthermore, even STF Justices later attributed Bolsonaro's "defeat" to the actions of the TSE.
A complaint made by Bolsonaro's campaign about fraud in the distribution of electoral advertising slots on the radio was completely ignored by De Moraes. Bolsonaro hired an audit that found up to 154,000 Bolsonaro campaign ads not aired in the North and Northeast of Brazil, areas where Lula has historically had an advantage, destabilizing the election. De Moraes not only shelved the complaint but also included Bolsonaro in the infamous Fake News Inquiry. Subsequently, my team and I proved the various errors in De Moraes' decision.
Fighting Back
The situation in Brazil is critical. Censorship and judicial persecution have reached unprecedented levels. The first step in facing this persecution is to make the world aware of what is happening here. Brazil is no longer a full democracy, not even a flawed democracy.
It's imperative for Brazilians to realize that it's not about defending Bolsonaro, who should be held accountable for any potential crimes, but about safeguarding democracy and the people's freedom to elect their representatives.
The possibility of Bolsonaro's imprisonment seems imminent, but at the moment he seeks to highlight one of the few aspects still remaining to him: popular support. To this end, Bolsonaro has orchestrated rallies in his favor slated for the 25th, rallying under the cause of "defending the democratic rule of law." He contends that this demonstration is a response to "all the accusations" he has encountered over recent months, aiming to galvanize support in his defense. According to the São Paulo police, Bolsonaro's event gathered significant support, with an estimated 750,000 attendees. The demonstration also saw the participation of over 100 politicians, including governors, deputies, and senators, strengthening right-wing alliances ahead of the municipal elections in 2024 and the presidential elections in 2026.
In a X, Senator Eduardo Girão — the main advocate for the establishment of the so-called CPI of “Lava Toga,” a parliamentary commission of inquiry aimed at investigating alleged crimes committed by members of the Judiciary — reminded that there are 60 impeachment requests for STF Justices waiting for a vote in the Senate. There are at least 21 petitions against De Moraes and 17 against the current president of the Supreme Court, Luís Roberto Barroso. The President of the Senate, Rodrigo Pacheco, who has the power to initiate the impeachment process, keeps all the requests shelved.
In the face of various illegalities, it's clear that the STF is committed to sending Bolsonaro to prison, also seeking to limit the strength of the right. In this context, it's crucial for Bolsonaro and his supporters to record each irregularity and seek the annulment of the processes, adopting a strategy similar to that used by Lula to reverse his legal situation and get out of prison. Although Bolsonaro likely won't have the same leniency given to Lula.