Cláudio Gonçalves Couto and Vanessa Elias de Oliveira
The principle of separation of powers, which dates back to Montesquieu’s classic The Spirit of the Laws, is not anchored in the idea of completely independent coexistence between the Executive, Legislative, and Judiciary branches, as if each of them functioned in parallel to the others in the fulfillment of their functions. On the contrary, it presupposes a system of checks and balances in which the powers operate in areas of intersection, in such a way that one power controls the excesses of the others, thus maintaining the autonomy of all, but without any power exceeding its attributions, prevailing over the others, and violating constitutional rules.
In times of normal functioning of democratic regimes, interactions between the powers are constant and sometimes tense. However, direct attacks are not a routine part of these interactions, nor is the need to daily and repeatedly curb authoritarian outbursts by members of the other branches of the State.
However, this is the scenario of relations between the Executive and the Judiciary during the Bolsonaro government, which is far from having normal functioning and, consequently, harmonious coexistence with the other branches, other levels of government, and civil society.
On the contrary, as we will argue here, during the Bolsonaro administration, Brazil is experiencing a turbulent period of Judicial-Executive relations, marked by two antagonistic movements. On the one hand, the Executive branch constantly attacks constitutional and legal norms, as well as the Judiciary, which is responsible for enforcing them. The Executive’s invectives mainly target the Supreme Federal Court and the Superior Electoral Court – as well as its individual members. Not only is the role of the courts and judges in the democratic rule of law being questioned, but there are also repeated threats to institutional stability.
On the other hand, the judiciary acts to prevent the advance of anti-democratic agendas in the field of politics and setbacks in the guarantee of rights in the field of public policies, as well as violations of the constitutional order, in both cases. It can be affirmed that a movement reinforces that with which it antagonizes: the Executive overreacts, the Judiciary puts the brakes on and, therefore, the Executive attacks the Judiciary, which needs to put new brakes on it.
Considering such antagonism during the Bolsonaro government, we will discuss below the actions of the two powers. On the one hand, we will deal with the president’s attacks on the legal system and public policies, as well as the attacks perpetrated by him and his constituency on the judiciary, especially the electoral justice system, the STF and its members. On the other hand, we will analyze the reaction of the courts and judges in the sense of providing a dam both to the government’s authoritarian attacks against Brazilian political institutions and to the dismantling of public policies that have been built over a long period of time, have already been consolidated and are indispensable for guaranteeing the social and political rights that have been established or strengthened since 1988. We will conclude with final considerations on this scenario and its consequences for Brazilian democracy.
The President Attacks, the Judiciary Reacts
Invested with his mandate, President Jair Bolsonaro’s attacks against the institutional order started early. For this very reason, judicial reactions also began early. And, in this dispute, there is a third important actor, or to be more exact, a third set of actors: the state governors. A considerable part of the conflict between the president and the judiciary stemmed from the contention also established by him with the heads of state governments.
In early May 2019, with only four full months in office, Bolsonaro issued a decree that made it significantly easier to obtain gun ownership in Brazil. At the end of that month, 14 governors signed a manifesto opposing the measure. Among them, all those from the Northeast (with whom the president would establish an especially hostile relationship) and five more from other regions. In addition, as could be expected, opposition parties filed actions with the STF asking for the measure’s annulment.
The government frenzy in issuing decrees and provisional measures (PMs), as well as the highly debatable and controversial nature of both, led to an avalanche of actions in the Supreme Court. By mid-May 2019 there were already 30 government measures targeted for challenge at the STF, compared to only two under Dilma Rousseff and six under Michel Temer in the same period of their terms.
That same month the Bolsonarist grassroots took to the streets in demonstrations against the STF and the then-president of the Chamber of Deputies, Rodrigo Maia. Demonstrators were already calling at that time for the deposition of Supreme Court justices.
The reason for Bolsonarist rage against the Supreme Court was the court’s decisions against measures adopted by the government, such as decree 9,759, which abolished and modified several councils of federal bodies, reducing social participation within the Executive branch. As these bodies were established by law, they could not be extinguished or transformed by presidential decree. After an injunction decision by Minister Marco Aurélio Melo, a majority was formed in the body and the measure was suspended.
This position of the court was just one more in a whirlwind of presidential defeats in the Legislative and Judiciary arenas. The setbacks in Congress (such as the expired Provisional Measures) fueled the animosity of Bolsonaro and his followers against the President of the House, Rodrigo Maia; the judicial defeats (overturning decrees and Provisional Measures) produced a similar effect against the Supreme Court.
This difficult relationship of the Executive with the other two powers remained until the end of 2020, when Bolsonaro finally gave up the idea of governing without a coalition and joined the Centrão to protect himself and prevent decisions contrary to his will from being made in Congress. However, although the relationship with the Legislature improved significantly, mainly because the disaffected Maia was replaced by the ally, Arthur Lira, the problems with the high ranks of the Judiciary remained.
The conflict with the governors also remained, particularly those in whom the president saw as potential electoral adversaries in his bid for reelection. This was the case with Wilson Witzel, from Rio de Janeiro, and João Dória, from São Paulo. Both supported Bolsonaro’s election, but became his enemies by making their ambitions clear.
If potential electoral adversaries became targets, also governors perceived as not aligned with the presidential project became disaffected. This was the case of the nine governors of the Northeastern states, whom Bolsonaro pejoratively referred to as “Paraibas” (a derogative and prejudicial term used by some southern Brazilians against their northeastern compatriots). The relationship worsened when the Northeast Consortium was created, an initiative resulting in good measure from the perception that the federal government could not be counted on for much. Dissatisfied with the rebellion, which would later manifest itself even more intensely during the Covid-19 pandemic, the president accused them of wanting “the division of the Northeast against the rest of Brazil”. With so many differences in relation to the state governments, it is not surprising that the initiative to transform the “federative pact”, made through a proposal for a constitutional amendment by the Executive, failed.
This clash with subnational governments continued over the following years and escalated, especially after the beginning of the Covid-19 pandemic, also resulting in an escalation of the conflict with the STF. Faced with the health emergency, states and municipalities began to take restrictive measures, aiming to stop the contagion. The president opposed them, because, according to him, the economy could not stop. To avoid such actions, he issued a provisional measure that prevented state and municipal governments from creating restrictions on the normal functioning of several types of activities.
This PM was questioned by the Democratic Labor Party (PDT), which argued that it was unconstitutional. Reporting on the case, Justice Marco Aurélio Melo partially granted the challenge, in an injunction: he kept the provisional measure in force, but upheld the autonomy of states and municipalities to determine restrictive measures in the exercise of their constitutional powers. In a decision by a large majority (nine votes to zero, of all those present at the session) the court ruled in favor of the decision-making autonomy of subnational governments, inflicting another defeat on the federal executive branch.
Dissatisfied with the STF decision, a month later Bolsonaro issued a decree that considered beauty salons, barbershops, and gyms to be essential activities that, therefore, should remain open. Governors and mayors chose to simply ignore the presidential determination, based on the understanding signed by the Supreme Court. Although the president has declared through social networks that “the governors who do not agree with the decree can file lawsuits in court or, via the congressman, enter a legislative decree bill,” they did not even bother.
The president’s non-conformism with such a situation led him to state several times that his hands were tied, prevented from acting on the pandemic by a determination of the Supreme Court, which would have transferred all decision-making power to governors and mayors. “I remind the nation that, by decision of the STF, the actions to combat the pandemic (closure of trade and quarantine, for example) were under the full responsibility of the Governors and Mayors,” he said in a social network post.
In parallel to this arm wrestling at the federative level, mediated by the STF, other fronts of action of the Supreme Court tormented the president: investigations led by Minister Alexandre de Moraes on the organization of anti-democratic acts by Bolsonarist groups, as well as the dissemination of fake news. As these investigations affected people very close to the president, including his family members, Bolsonaro considered that he was personally persecuted some judges, especially Moraes himself.
This tension culminated in two major presidential rallies on September 7, 2021 – one in Brasília, and the other in São Paulo – when Bolsonaro said that Moraes was exceeding his powers and should ask to be removed from office, and that he would not abide by any decisions made by the magistrate.
This episode produced a major crisis, leading several relevant actors to seriously discuss the need to impeach the president, since he was announcing an institutional break and seemed to believe he had no limits. The reaction disseminated by the political class scared Bolsonaro, who two days later retracted his statement, through a note written at his request by former president Michel Temer. The crisis cooled down, but not for long: already in the first months of 2022 the president went back on the offensive against the STF.
Finally, another front in the clash between the Executive and the Judiciary is in the electoral sphere. Since his presidential campaign, Jair Bolsonaro has cast doubts on the reliability of the Brazilian electoral process – in this case, the electronic ballot box vote and its counting.
He claims that such a vote would not be auditable (which is false) and that various flaws and manipulations occur in the ballot boxes (which is also false). For this reason, he defends that the vote should be printed, so that one can compare the results of the electronic ballots with ballots deposited in physical ballot boxes. Appealing to the Superior Electoral Court (TSE), in which ministers of the STF have a preponderant participation, he was defeated in his attempt to institute printed ballots. His bid to approve such a measure by constitutional amendment also failed, since the necessary votes were not achieved in the House of Representatives and the proposal died there, without even being considered by the Senate.
As a result of the ardent defense of the electronic voting system, made by the then president of the TSE, the minister of the STF Luís Roberto Barroso, Bolsonaro directed his batteries against him. He attacked him, claiming that he was playing politics, because his pressure on Congress would have led to the defeat of the amendment that would institute the printed ballot. Moreover, he went on to claim without any evidence that the electronic ballot box was subject to fraud. The result was a public clash between Barroso and Bolsonaro, with the minister explicitly stating that the president of the Republic was lying. The tension reached the point where the head of government refused to attend the inauguration of Luiz Edson Fachin as Barroso’s successor as president of the electoral court. And even greater tensions were predicted, in view of the imminence of Bolsonaro’s biggest challenger on the court, Alexandre de Moraes, occupying the presidency of the TSE during the 2022 elections.
Final considerations
Jair Bolsonaro’s political strategy is to attack political and social institutions and actors. His attitude towards the Judiciary and its members has not been any different. Whether in the relationship with the Supreme Court or the electoral judiciary, they are constantly attacked, and especially when the judicial decisions are contrary to the president’s wishes.
After a clash, Bolsonaro tactically retreats. He retreats in a moment of greater difficulty or risk, only to resume his attack on the institutions and political actors shortly afterwards. This bite-blow dynamic characterizes the President of the Republic’s way of acting and has guided the relationship between the Judiciary and the Executive in Brazil during the Bolsonaro administration. With each new tactical retreat, he gains more time. And as time passes, more effective measures that could be taken against him – such as impeachment proceedings – become more unlikely.
Although the Judiciary and its members have been facing the attacks in a resilient manner, the fact is that the institutional wear is great for both sides and will certainly have implications for the next governments.
On the Executive side, it will be necessary to deal with a more active and combative Supreme Court, since it has assumed an important role in the defense of politics and public policies during the Bolsonaro presidency. On the Judiciary side, it will be necessary to reduce distrust in relation to probable proposals for changes in the rules of the game, institutions or policies. In short, the attrition promoted by the head of the executive branch for the relations between powers is given; it remains to be seen how they will be rebuilt in the future.
