Electoral Judges, Entrusted with Safeguarding the 2022 Elections,are Under Siege in Brazil - 27/05/22
by Estefânia Maria de Queiroz Barboza and Gustavo Buss
There is a global trend of democracies moving towards autocratic forms of governance, in several different ways. In 2021, V-Dem warned that, in the decade of 2010-20, Brazil ranked 4th among the 10 main countries that advanced in this process of democratic erosion. According to IDEA, “Brazil has the highest number of democratic attributes in significant decline in the world and, since 2016, has been suffering an episode of democratic backsliding”. But the already serious challenges faced by democratic institutions in Brazil have significantly increased as the 2022 elections approach.
Since Jair Bolsonaro’s election in 2018, the Executive branch has attacked the Judiciary, the press, universities, non-profit organizations, and social movements, imposing a significant threat to democratic pluralism in Brazil. Bolsonaro’s government publicly encourages attacks on institutions. More recently, with electoral polls pointing to a possible defeat in October to former president Lula, his discourse escalated. As BBC reported, Bolsonaro proudly shouted in a speech that there were “three alternatives for my future: being arrested, killed or victory” and that “only God will oust me”.
Judicial authorities in Brazil, the Supreme Court (STF) and the Superior Electoral Court (TSE) in particular, face an unprecedented campaign of attacks and mounting distrust. On September 7, 2021, before a crowd of dozens of thousands of protesters, Bolsonaro uttered a series of direct threats to the Supreme Court, extolling disobedience to judicial decisions and threatening Justices. Unfortunately, such presidential attacks have become commonplace in Brazil. Moreover, without any evidence, Bolsonaro publicly claims that the national electoral system can be and has been rigged. He has even stated that the TSE judges are behind such alleged frauds.
Bolsonaro’s political allies have heavily relied on disinformation strategies to delegitimize democratic intuitions. A report by Harvard Kennedy School’s Shorenstein Center observed that “since the beginning of his term, Bolsonaro has remained an agent of information disorder, leveraging his massive audience and making recurring use of bots.” By taking advantage of under-regulated or even uncontrolled digital arenas and social media, the President and his close allies have disseminated false and manipulated information regarding the Judiciary.
As the 2022 presidential election approaches, Bolsonaro’s focus shifted towards the Judiciary, and the Supreme Court (STF) in particular, as a newfound enemy. In a way, these attacks are not surprising, considering the Court’s role in judging lawsuits against people in the president’s inner circle, as well its longstanding defense of minorities’ rights. A conservative like Bolsonaro would inevitably disagree with certain decisions issued by the Supreme Court, and such disagreement could, in principle, be part of what is expected in a pluralistic democracy. In this case, however, Bolsonaro’s attitude is part of a broader pattern of denying checks and balances, with recurring demands to shut down the Supreme Court and even demonstrations of hatred towards individual Justices.
In addition, Bolsonaro’s campaign of undermining trust in the Judiciary is geared towards the upcoming elections. Since the 1930s, Brazilian elections have been overseen by an independent Electoral Justice as prescribed by the Constitution. The Electoral Court (TSE) has the authority to organize the elections and safeguard electoral integrity. Consequently, this Court is expected to act as an obstacle to any president’s attempts to resist alternation of power. Bolsonaro’s attacks on individual STF’s Justices, who are also serving on the TSE, is an attempt to delegitimize and intimidate actors who are fundamental to a peaceful change of power in case he is defeated in October. In his view, Judges “Barroso and Alexandre de Moraes want Lula to be president.” Barroso was the former president of the Electoral Court, and Alexandre de Moraes will be the upcoming president during the 2022 presidential election.
Bolsonaro has repeatedly cast doubt on the electronic ballot system, accusing it of being subject to manipulation by political adversaries, and therefore not legitimate. He has also supported disinformation and false claims alleging frauds in the 2018 elections, even though he himself was the winner. These overt attacks on democratic legality curb and undermine the authority of Brazil’s Electoral Justice. Additionally, there is rising concern among Brazilian civil society – those still committed to the democratic values laid down by the Constitution – of future violent attacks on the Judiciary and even an open refusal, on Bolsonaro’s and his allies’ part, to accept unfavorable electoral results..
The Brazilian Judiciary is under siege as the most critical moment of our post-dictatorial democracy draws closer. Judicial independence, particularly regarding the Electoral Court (TSE), has come to the fore of the public debate. The access to an independent judiciary is a human right, and the existence of independent courts is an internationally recognized precondition to exercising other fundamental rights. The international community should closely monitor the democratic commitments of the Brazilian State so that any disrespect for judicial independence and the results of the upcoming elections will be seen as a democratic rupture with diplomatic consequences.
Estefânia Maria de Queiroz Barboza is Constitutional Law Professor at Federal University of Paraná. She is co-chair of the Brazilian Chapter of ICON-S (International Society of Public Law) and Vice-President of the Italo-Brazilian Professors Association of Constitutional law and Administrative Law. She is also part of the Executive Committee of Demos – Observatório para Monitoramento dos Riscos Eleitorais no Brasil. E-mail: estefania.barboza@ufpr.br
Gustavo Buss has concluded his LL.M. at the Federal University of Paraná, where he is currently a Constitutional Law researcher at the Study Center for the Constitution (CCONS-UFPR). His is also the Executive Secretary of Demos – Observatório para Monitoramento dos Riscos Eleitorais no Brasil. E-mail: gustavo@sqbadvogados.com
