Bolsonaro’s victory would jeopardize the independence of Brazil’s Supreme Court

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President Jair Bolsonaro is raising fears for Brazil’s democratic system by threatening to appoint new judges to the Supreme Court, the central institution of the country’s young democracy. Between the two presidential rounds, Bolsonaro blows hot and cold on the issue, issuing threats to galvanize his base, then backing down to reassure undecided voters. If re-elected, however, the far-right president could well find the numbers to make changes to the court.

The outcome of the bitter competition between Bolsonaro and former Social Democratic President Lula Inacio de Silva is difficult to predict, before the second round of the Brazilian presidential election on October 30.

After winning 48% of the vote in the first round on October 2, Lula began trying to reach out to evangelical Christians and centrists in a bid to defeat his far-right rival. Bolsonaro did much better than expected with 43% and is more confident than ever that he will be re-elected.

Bolsonaro has alternated between presidential posturing and well-calculated outbursts since the first round — a strategy that has played well among his anti-system far-right base. This includes fierce rhetoric about Brazil’s Supreme Court.

Surrounded by journalists in the reception room of the presidential palace in Brasilia, Bolsonaro launches October 7 in invective. He accuses the press of supporting Lula, then rants against the judges of the Supreme Court, calling one of them, Alexandre de Moraes, a “dictator”.

>> Against all odds: in a blow to the Brazilian left, Bolsonaro forces Lula to run in the second round of the presidential election

The dispute between Bolsonaro and de Moraes dates back to 2021, when the judge ordered an investigation into the president for “disinformation”, after Bolsonaro questioned the integrity of the electronic voting system used by Brazil since the 1990s.

Meanwhile, Bolsonaro told reporters he had been “suggested” to increase the number of Supreme Court justices. “There are people who say to me, ‘You just have to name five more,'” he said. “I can’t name five more. We need to talk to Parliament about it first. We will see after the elections.

Following Bolsonaro’s comments, his Vice President Hamilton Mourao also said changes should be made to the Supreme Court, both in terms of composition and mandate – alleging that it is a “system of taking autocratic decision.

Guardian of the Constitution

Supreme Court of Brazil, the Supreme Court is the guardian of the country’s constitution and its decisions are not subject to appeal. The court’s 11 judges are appointed for life by the Brazilian president and are due to retire at the age of 75.

Currently, the court has seven judges appointed by Lula and his leftist successor Dilma Rousseff, two appointed by center-right presidents and two appointed by Bolsonaro during his tenure. Whoever wins the presidential election will appoint at least two judges.

In saying he wants to change the composition of the Supreme Court, Bolsonaro is following in the footsteps of the military dictatorship that ruled Brazil from 1964 to 1985. The generals have appointed five additional judges to the Court – making it more docile without going so far as to abolish she, thus maintaining a veneer of democratic institutions at work.

After Bolsonaro’s inflammatory statements caused an uproar, he tried to strike a more subdued tone on Oct. 9. During a four-hour chat with a YouTuber, Bolsonaro looked relaxed and often smiled while wearing the shirt of Brazil’s beloved national soccer team. He said if the Supreme Court “cooled down” its attacks on him, he could drop plans to appoint new justices, which would allow him to secure a majority on the bench to back him in a possible second term.

A well-honed tactic

Bolsonaro uses one of his trademark tactics, noted Armelle Enders, a historian of contemporary Brazil at Paris 8 University: “Part of his modus operandi is to issue threats and then back down. First he threatens to agitate his base – his core supporters – then he backs off because he knows making remarks suggesting he wants a coup is bad for his polls. Stepping back, Bolsonaro is normalizing again, reassuring those with reservations about him.

The far-right president played a dangerous game along these lines in September 2021. He called on his supporters to rally inside Brasilia’s Supreme Court, before asking them to remain calm as they responded to his call. en masse.

“Bolsonaro’s practice is to threaten institutions and ignore them. For him, there are no institutions, only friends and enemies,” Enders said. “That said, the Supreme Court didn’t bother Bolsonaro much. [during his time in office]. That didn’t stop him from doing anything substantial that he wanted to do. But the way Bolsonaro and his supporters view the world is politicized because he doesn’t support Bolsonaro’s agenda – making him one of their enemies.

A majority to change courts?

The current episode with the Supreme Court once again demonstrates Bolsonaro’s ability to flirt with criticism of Brazil’s democratic system without tending to cross a line. During his four years in office, Bolsonaro indulged in threats, invectives and outrages, then (at times) backed down. The far-right Brazilian president has shown himself to be a master of this tactic, no doubt inspired by former US President Donald Trump.

Bolsonaro-backed candidates fared very well in Brazil’s legislative elections, which were held on the same day as the first round of presidential elections. This could give Bolsonaro the majority he needs to change the constitution and therefore the composition of the Supreme Court.

The Liberal Party to which Bolsonaro is affiliated won 99 seats out of 513 – the best result for a single Brazilian party since 1998. Adding the seats won by the Progressive Party and the Republicans – two other parties that unconditionally support Bolsonaro – definitely brings the number in his camp up to 190, more than a third of the total number of deputies. In the Senate, right-wing parties hold 53% of the seats; Bolsonaro’s party holds 13 of the 81 seats.

So, based on those numbers, it’s possible Bolsonaro will find enough votes to follow through on his threats. “The biggest risk to democracy in a second Bolsonaro term is that he puts more pressure on the judiciary,” said Oliver Stuenkel, professor of international relations at the Getulio Vargas Foundation in Sao Paulo.

This article has been translated from the original in French.

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