Brazil’s Supreme Court and the Defense of Democracy – by Alexandre de Moraes
Why has Brazil suffered such a succession of attacks on democracy in recent years, culminating in the pro-coup acts of January 8? That was one of the questions that Alexandre de Moraes, Justice of the Brazilian Federal Supreme Court, asked and sought to answer in a lecture at the FHC Foundation on March 31, which marked our post-pandemic reopening to the public.
“Far-right movements have been taking over social networks worldwide with a clear purpose: breaking democratic rules. In an exceptionally effective way, the far right was able to use social platforms to attack the three pillars of Constitutional Democracy systematically: freedom of the press, voting, and the rule of law,” said the Supreme Court Justice and Chief Justice of the Superior Electoral Court.
“We cannot underestimate the power of social networks again. It is necessary to create control mechanisms and hold companies accountable so that this does not happen again. In my view, all regulation has to be based on a simple rule: what is true in the real world is true in the online world. Freedom with responsibility,” he explained.
Read below the initial excerpt of his speech.
Alexandre de Moraes, Justice of Brazil’s Federal Supreme Court and Chief Justice of the Superior Electoral Court:
“What we have experienced, in practice, in recent years seems to have endorsed the choice our legislators made in 1988. In writing the new Constitution, the members of the 1988 constitutional convention were simultaneously wise and humble. They looked back and asked themselves, ‘Why did Brazil, which in the Republican period adopted the tripartite model of powers with presidentialism and federalism, that is, models of limited power similar to those set in the Constitution of the United States of America of 1787, not succeed from the point of view of democratic stability?’
In asking this question, the 1988 constitutional conventioneers found—and that’s why I say they were humble—that the Legislative Branch failed, for historical, cultural, and political reasons, to contain the advances and dictatorial raptures of the Executive Branch. Based on this conclusion, they adopted what Federalist John Jay, the first Chief Justice of the U.S. Supreme Court, said about the Constitution back in his time. According to Jay, the first Constitution elevated the Judicial Branch to the same level of dignity as the other powers. That is, the Judiciary equals the Executive and the Legislative branches to maintain a balance between powers. In 1988, our constitutional conventioneers significantly strengthened the Judiciary, particularly the Federal Supreme Court.
They quite clearly opted for concentrated control of constitutionality in the Supreme Court; they chose to have the Supreme Court as a moderator between the powers, and it went beyond that because the constitutional conventioneers empowered all those who could bring matters to the Judiciary since the Judiciary does not act ex officio. There is no Public Prosecutor’s Office in the world with the same degree of autonomy, independence, and constitutional competencies as the Brazilian one. The Public Defender’s Office was created and strengthened. Public law practice and private law practice were also strengthened.
It was through the strengthening of all those who have access to the Judiciary that, consequently, the Judiciary also became stronger because everything, absolutely everything, reaches the Judiciary and the Supreme Court. No other country in the world has such an encompassing legitimacy to access a Supreme Court as there is in Brazil. Everything gets there, such as the backlog of Congress. When the voting session of a new law comes to an end, the losing side always takes the matter to the Supreme Court, hence the judicialization of politics. But that was a choice made by our constitutional conventioneers. And I can safely say it was the right one. Because since 1988, Brazil is experiencing the longest period of democratic stability of the republican period. The Constitution of 1988, which is 35 years old this year, is not in effect for the longest time in the Republic yet. Still, it is the one that has been securing the longest period of democratic stability, more than that of the 1891 Constitution—our first republican Constitution.
With its mistakes and successes, this new balance established by the Federal Constitution of 1988 has been working. We went through two impeachments—one of a right-wing president and another of a left-wing president—and all parties played the game by the rules. The vice presidents took over, we had subsequent elections, and whoever was elected took office. This structure set up by the 1988 constitutional conventioneers secured democratic stability, which does not always mean without turbulence. The Constitution provides mechanisms so we can deal with the issues and ensure that democracy is maintained.
Why is it, then, that Brazil has suffered such a succession of attacks on democracy in recent years, culminating in the pro-coup acts of January 8? It wasn’t just Brazil. Far-right movements have been taking over social networks worldwide with a clear purpose: breaking democratic rules. In an exceptionally effective way, we must recognize that the far right first diagnosed the impactful emergence of social networks and then monopolized their use. During the Arab Spring (2010-2012), social networks emerged as an instrument of democracy against authoritarian States that did not have freedom of the press and expression or didn’t guarantee the right to assembly. People communicated and organized great democratic demonstrations of that historical moment through those platforms.
After that, the far right, especially in the United States, which had been hiding in a corner somewhere, but has always had a lot of money, started to study this phenomenon and to take over these mechanisms with the purpose of breaking democracy, attacking the three pillars of Constitutional Democracy. This started in the United States and was tested in other countries, such as Poland, Hungary, Italy, and Brazil. How can democracy be eroded from within? The difference with what happened is that the far right did not seek to attack democracy from outside, like traditional coups, but to wear it down, attacking the freedom of the press, free and fair elections, and the independent and autonomous Judiciary.
Since then, the far right has dominated social networks. The inability of the rest of society to at least balance the game is just amazing. The first step of the far right was to discredit the press, equating their so-called ‘news’— the fraudulent, lying news, also known as fake news—to the information conveyed by the traditional media. The advantage being that they could not be held accountable for ‘their information.’ The press is responsible for what it discloses; the social networks have no responsibility. And much of the population, unfortunately, places the same value on information produced by a serious journalist and a digital influencer. This was not without purpose; it had a method to it. That’s where we made a big mistake. We underestimated the process; we did not foresee the need for effective self-regulation or regulation at all. This whole thing took massive proportions, and the truth is that today disinformation has the same value and, for some bubbles, even greater value, than information.
All you have to do is notice how all candidates for dictator attack the press, calling it a ‘sell-out press,’ ‘communist,’ or the ‘lamestream media.’ The goal is to discredit a fundamental power control mechanism—the free press—and with that, create their fake news machine. With this network of disinformation and misinformation available, they set the conditions for the second attack, that is, on free, independent and fair elections. There’s something subtle here that the far right planned that we must notice: ‘Let’s not attack democracy; let’s not say democracy is bad. Let’s attack the main instrument of democracy, which is voting.’ It doesn’t matter how you vote. In the United States, voting by mail was attacked. In Brazil, the attacks focused on the electronic voting machine. If paper ballots made a comeback in Brazil, they would also be attacked. What matters is to attack the mechanism, whatever it may be, because the narrative would already be in place in case of defeat. This happened not only in Brazil but in many parts of the world.
Finally, it was necessary to attack who secures elections and democracy: the Judiciary. Why was it more intense in Brazil? Because the Judiciary also takes care of the elections. In the United States, there is no Electoral Justice. And as the Superior Electoral Court has, in its composition, three Supreme Court justices, the Supreme Court has become the perfect enemy. It all added up. The attack on the Judiciary had three possibilities: co-optation, dominance, increasing, for example, the number of members of the Supreme Court and appointing judges aligned to the regime in office, or annihilation. A far-right leader would say, ‘If the judiciary wants to defend the Constitution and I want to remain independent and autonomous, we must annihilate it.’ And in Brazil, it was this third option that was tried.
There was no possibility of co-optation or dominance, as the Federal Senate and the House of Representatives barred any attempt to do so, so they said, ‘Let’s mobilize our digital militias to massacre the Supreme Court.’ Because the fall of the Supreme Court would be the fall of the Judiciary Power throughout the country and the end of the Constitutional Democracy. Let us remember when rockets and aerial shells were launched against the headquarters of the Supreme Court in Brasilia. It sounds ridiculous, and it was, but today it’s rockets and aerial shells, tomorrow it’s gunshots, and the day after tomorrow, it’s going to be bazooka blasts.
It’s a scary business what this brainwashing of digital militias is doing to countless people nationwide. That means we cannot underestimate the power of social networks again. Mechanisms must be implemented to prevent this from continuing and happening again. We need to hold social media companies accountable. What is their degree of responsibility? For me, all regulations must be based on a simple and easy-to-understand rule. What is true in the real world is true in the online world. Freedom with responsibility.
We cannot fall into the trap of the far right of thinking we are regulating freedom of speech. This is the great trap, the great speech, and the narrative that the far right around the world has managed to build. It’s all about ‘my freedom of speech.’ That caught on; people felt comfortable again being racist, homophobic, and Nazi. Can you do it in the real world? If you can do it in the real world, you can do it in the online world. You can’t do it in the real world? Is that a crime? So it’s a crime on social media, too.
With all the mistakes and normal successes in an institution formed by human beings, the Supreme Court has been and will continue to be a barrier to the attempt to break Constitutional Democracy, but we have to learn from what we have experienced recently and improve the mechanisms for Brazilian democracy to remain alive forever.”
Otávio Dias is the content editor at Fundação FHC. He is a political and international affairs journalist, a former correspondent for Folha de São Paulo in London, and former editor of the estadao.com.br website. Portuguese to English translation by Melissa Harkin, CT and Todd Harkin – Harkin Translations.