INTRODUCTION: THE JUDICIARY IN A COUNTRY IN CRISIS

It would not be an overstatement to argue that the Brazilian judiciary is behind the most recent critical events in Brazil’s political landscape, interfering directly in the pace and intensity of the crisis that led to the impeachment of a President (Dilma Rousseff), the imprisonment of a former President (Lula da Silva) and the rise of a far-right President (Jair Bolsonaro), severely undermining the political electoral stability that had prevailed in the country for over 25 years.^[670] It is also the judiciary that possibly provided one of the world’s most impactful cases of lawfare^[671] in the so-called �Operation Car Wash’ that implicated former President Lula da Silva, who was not only arrested but also banned from running in the 2018 presidential elections.^[672] This event ended up significantly contributing to Jair Bolsonaro’s victory.^[673] �Operation Car Wash’, presumably the most impactful and overarching case of white-collar crime in Latin America’s history, was nothing short of a cataclysm: the effects on the political, economic, and legal realm were staggering and incalculable.^[674] It revealed how corruption operates through various strategies to defraud pub­lic contracts, and important figures in the political and business sectors were

114 The Rule of Law and Brazil’s Politicised Judicial System incriminated and arrested.

These recent events are the culmination of years in which the Brazilian judi­ciary has become much stronger but still features low levels of transparency and accountability. They are evidence of how unchecked powers and political calculations can severely undermine political institutions which, despite their ups and downs, had until then functioned with relative stability.^[676] History may take time to shrug off the variables that led to the political crisis that resulted in the election of the far-right President Jair Bolsonaro in 2018, but it is very likely that, were it not for �Operation Car Wash’, the current political landscape would look less gloomy. Such a judicial impact on the political landscape is nowhere to be found in Brazilian history, but it is striking that it took place exactly when Brazil was going through its longest and most fruitful experience of democratic life. There is no other institution that represents the paradoxical nature of the democratisation process in Brazil: the judiciary is the branch of power that more visibly merges the country’s past with its future in the development of the rule of law.

The rising of the Brazilian judiciary, and particularly the Brazilian Federal Supreme Court (henceforth STF), in the democratisation process is nothing short of impressive. It was a very restrained judiciary during the civilian-mili­tary dictatorship (1964-85), when the STF was �threatened, diluted, and, five years after having legitimised the coup, violated by the expulsion of three of its members’.^[677] The judiciary also validated a series of human rights violations and did not directly challenge many of the authoritarian acts^[678] despite some judicial resistance.^[679] There was some autonomy, but, paradoxically, such autonomy also translated itself into complacent behaviour toward the dictatorship,^[680] as if not challenging it was the best strategy to avoid attacks on its status quo.

During the democratic transition, notably during the Constituent Assembly (1987-88), the judiciary was one of the major beneficiaries by expand­ing its powers through enhanced administrative, functional and budgetary autonomy,¹2 and it has been since qualified as one of the most autonomous in Latin America.^[681] [682] The judiciary has undergone an intense transformation in its institutional capacities and become a key player in the Brazilian legal and politi­cal landscapes. Most strikingly, the STF has transitioned from a very restrained, bureaucratic and formalistic court in the beginning of the new democratic order - a legacy of the authoritarian years^[683] - into possibly one of the world’s most intervenient courts in political affairs, with a significant impact on Brazilian democracy.

Strong and independent courts in a democracy tend, at least in theory, to imply a more robust system of checks and balances and a more consistent web of protection of constitutional rights. In Brazil, the judiciary has surely improved its capacities of constraining the other branches of power, and the STF has been empirically portrayed as one of Latin America’s most effective courts in settling interbranch disputes^[686] and possibly �one of the most powerful courts in the world’.^[687] It has also been amongst the most stable courts in the region over history, which helps explain its resilience against executive control and its higher autonomy.^[688] However, it lags behind some of its Latin American counterparts when it comes to enforcing social and economic rights, and even individual rights only began to gain some importance by the mid-2000s.^[689] Overall, the judi­ciary has been a major player in Brazil’s democracy, and its increased capacities have been portrayed as one of the most significant improvements in Brazil’s web of accountability. However, this is only one side of the story.

A democratic environment provides courts with the tools to more consist­ently check the other branches of power and to enforce constitutional rights. The Brazilian judiciary thus has the potential to more seriously engage in fostering the rule of law, but, for this purpose, it needs to attack some of its cross-institu­tional deficiencies, legal design flaws and longstanding and entrenched practices.

This chapter explores the rising influence of the judiciary and the Supreme Court over political life and how such an influence has affected its role of protecting constitutionalism and fostering the rule of law. The first section is aimed at examining the judiciary’s structure and discussing its independence and increasing �symbiosis’^[690] with the political system. The second section is aimed at stressing how it has behaved as a powerful corporation with its privileges and benefits virtually untouched. The chapter ends by analysing the judicial criminal system, which has proven very inefficient and indeed strength­ened violence (eg, the shocking levels of police killings) amid the still high rates of social inequality in the country.

II.