Brazil’s top judges take stand against Bolsonaro

For one of Brazil’s top judges, a wave of increasingly aggressive rallies by supporters of President Jair Bolsonaro demanding that the military shut down congress were the last straw. The country risked becoming an “abject dictatorship” under the rightwing populist’s leadership, he warned.

“We must resist the destruction of the democratic order to avoid what happened in the Weimar Republic when Hitler, after he was elected by popular vote, did not hesitate to annul the constitution and impose a totalitarian system in 1933,” Justice Celso de Mello said late last week, in a WhatsApp message leaked to the media.

The stark warning from the supreme court judge of the perceived threat posed by Mr Bolsonaro underscores not only the challenges facing Brazilian politics under the president — a former army captain who has expressed fondness for the 1964-85 era of military rule — but also the growing role of the top court in pushing back against the excesses of the government.

Since his inauguration in January last year, Mr Bolsonaro has stoked fears over the future of democracy with constant attacks on congress, the courts, the press and civil society.

He is also facing judicial probes after the supreme court began parallel investigations into the president and some of his closest allies.

The most prominent, launched in April, is probing allegations that Mr Bolsonaro interfered with federal police operations to protect his family’s personal interests. The other, which started in March, is examining claims that some of his allies, including prominent businessmen, ran a fake news operation to ensure his election in 2018. Both investigations could result in his removal from office.

The probes have triggered a sharp backlash from Mr Bolsonaro, who denies any wrongdoing. On Sunday he appeared on horseback at a rally held by supporters calling for military intervention to shut down the 11-person court and the congress. 

Weekly marches by the president’s far-right backers have become more aggressive, with some appearing to be forming militias. Late last month one group donned face masks and held flaming torches in a nocturnal protest that observers say evoked the white supremacist movement in the US. Brazil’s education minister, Abraham Weintraub, was caught on video late last month saying the supreme court justices should be thrown into jail.

Some observers warn Brazil risks going the way of Peru in 1992, when Alberto Fujimori, also a rightwing populist, sent tanks and troops to dissolve congress and the judiciary in an “autocoup” known as the Fujimorazo.

“We are getting very close to a dilemma: either the president becomes a dictator or he is removed from office. This will have to happen sometime very soon,” said Davi Tangerino, a criminal lawyer. 

Brazil’s top court has long held a position of prominence, partly owing to the vast scope of the constitution, which offers the justices ample opportunities for legal interpretation.

Following corruption scandals in recent years, including the sprawling Lava Jato probe that implicated scores of businessmen and politicians, the judges began to take a more activist approach. Today, the justices — appointed by the president and serving until age 75 — are celebrity figures, appearing regularly on their own television channel, Justice TV.

“The scandals brought new responsibilities. They no longer only rule on big constitutional cases, they now also act in the first instance of criminal [allegations against] politicians,” said Raquel Pimenta, a researcher at the law school of the Getúlio Vargas Foundation in São Paulo.

The failure of congress to hold the government to account, for example by launching impeachment proceedings against the president, has also reinforced the standing of the court as the last bastion of democracy, say analysts.

For his part, Mr Bolsonaro has sought to shore up support from lawmakers by doling out plum government jobs to figures in the Centrão, a bloc willing to do deals in return for their backing.

The activism of the justices evolved out of a “generalised feeling that both the executive and legislative branches are corrupt, broken and untrustworthy”, said Mr Tangerino.

“We took 30 years to build institutions that promote accountability. Now we are seeing efforts to loosen or change the system in a way that is more favourable to the personal interests of the president,” said Ms Pimenta.

Oscar Vilhena, dean of law at the Getúlio Vargas Foundation, added: “The constitution works only if public figures have a strong commitment to it. Brazil now has a problem because it has a president who is hostile to the constitution.”

As tensions rise between Mr Bolsonaro and the supreme court, focus is shifting to the military and how it will respond.

Hamilton Mourão, the vice-president and an army general, said this week a military coup was “totally out of the question”. However, Augusto Heleno, the national security adviser and also a general, warned late last month of the “unpredictable consequences” of attempts to investigate Mr Bolsonaro.

“The armed forces are not a monopoly of the president,” said Diego Werneck, a professor of constitutional law at the Insper Business School in São Paulo. “If the president refuses to obey a decision from the supreme court, it would be time for the armed forces to rise up to their role of defending the constitutional order.”

Additional reporting by Carolina Pulice