In Brazil, some judges have highly ambitious political goals and make decisions accordingly.
The current presiding justice at the nation’s Supreme Electoral Court is Alexandre de Moraes. He was elected as the presiding electoral officer in August, in a public ceremony with 2,000 guests at the court auditorium. He was a member of the Brazilian Social Democratic Party before being nominated justice of the nation’s Federal Supreme Court on Feb. 22, 2017.
Before being nominated to the nation’s highest court, as reported by the French daily Le Monde, he was at the centre of a controversy when the daily Estadão published an investigation showing that he had intervened as a lawyer in at least 123 legal cases to defend a corporation that some have argued is suspected of being linked to Brazil’s main drug trafficking group, the First Command of the Capital.
Moraes, who is now the nation’s top electoral officer in Brazil and responsible for overseeing the presidential elections, has issued numerous “monocratic decisions” against “misinformation,” in addition to sending some of President Jair Bolsonaro’s friends and supporters to jail, confiscating their electronic devices, and freezing their bank accounts.
On March 18, for example, Moraes ordered the nationwide suspension of the messaging app Telegram. The ruling came after Telegram ignored an earlier order to block the account of Allan dos Santos, a supporter of Bolsonaro accused of spreading “misinformation.” He had previously issued a warrant for the arrest of Santos in October.
In his ruling suspending Telegram nationwide, Moraes mentions its failing to remove “misleading” content from Bolsonaro’s own Telegram page. As reported, not only did he order the shutdown of the message app nationwide but also ordered Apple and Google to introduce “technological obstacles” to block Telegram on their operating systems and withdraw it from their digital stores in Brazil.
Bolsonaro, who seeks reelection in October, relies on Telegram to reach his voter base. He has more than a million followers on the platform and this could prove crucial to his electoral campaign.
On March 19, during the popular television program “Os Pingos nos Is” from Jovem Pam, journalist Augusto Nunes accused Moraes of committing several illegalities, including the abuse of authority and the violation of a cláusula pétrea (“stone clause”) in the Brazilian Constitution that makes freedom of expression an inalienable right of the citizen.
Nunes also criticized the silence of politicians about Moraes’s “decisions,” including the banning of Telegram nationwide.
“It’s time to demand senators and judges handcuffed for their cowardice. And those appointed by President Jair Bolsonaro have to explain how long this cowardly silence they have maintained in the face of arrogance will last,” he said.
On May 27, 2020, Justice Moraes, who had become the nation’s top electoral officer, ordered the federal police to launch an operation probing businessmen, bloggers, and politicians allied to Bolsonaro. In the decision that authorised the operation, he also determined the blocking of all their accounts on social media outlets such as Facebook, Twitter, and Instagram. According to him, the monocratic decision is necessary for the interruption of “misinformation” and “fake news.”
The investigation on “misinformation” conducted by Moraes concerns more generally the dissemination of information regarding the transparency of electronic voting machines and the credibility of the Brazilian electoral commission, which is actually headed by Moraes himself.
Filipe Martins, the special advisor to the presidency of the Republic for international affairs, commented that “journalists, humorists, and ordinary citizens who act spontaneously are being treated as bandits for daring to express opinions that displease the establishment.”
Bolsanaro Not the Only Target
Among the targets of police actions ordered by Moraes are the national president of the Brazilian Workers’ Party Roberto Jefferson, businessman Luciano Hang, and congresspersons Douglas Garcia, Gil Diniz, Carla Zambelli, Bia Kicis, Junio Amaral, Filipe Barros, Luiz Phillipe Orleans e Bragança, and Daniel Silveira.
One of these parliamentarians, Zambelli, said that “every person who respects the law has the obligation to repudiate these searches within the scope of an illegal and unconstitutional investigation.”
By the same token, another congresswoman, Kicis, stated: “We are living in dark times of brazen attack on democracy. Don’t forget the people who are celebrating the abuses of authority and undemocratic acts by Justice Alexandre de Moraes against journalists, comedians, businessmen and any other common people. They are accomplices of the dictatorship. I have never been silent against tyranny or opponents.”
On Aug. 23, Moraes directed the federal police to execute search warrants in five states targeting at least eight businessmen. He ordered police to raid their homes, to access their bank accounts, and suspend their social media accounts. These citizens are being investigated over a couple of messages posted in their WhatsApp group whereby some allegedly dared to say they would prefer another military regime to the return of the far-left candidate Lula da Silva to the presidency.
Moraes also ordered their bank accounts blocked. One of those targeted by the operation was Luciano Hang, the founder of retail chain Havan and a Bolsonaro supporter with millions of followers on social media. Although Hang says he has “never spoken of a coup” and he has “always defended democracy and freedom of expression,” Moraes ordered the blocking of all his social media accounts, including Twitter, Instagram, Facebook, YouTube, WhatsApp, and TikTok.
“They can take away my social networks, but they’ll never shut me up!” said Hang, who built a department store chain known for displaying replicas of the Statute of Liberty out front. “Say no to censorship! You could be next,” he posted on his Twitter account before it was closed by the court order issued by Moraes.
Other businessmen who reportedly had their social media and bank accounts blocked include Meyer Joseph Nigri, chairman and former CEO of property developer Tecnisa, Jose Isaac Peres, founder of shopping mall company Multiplan, and Afranio Barreira Filho, owner of the restaurant chain Coco Bambu.
Brazil’s Democracy Under Threat
Bolsonaro says democracy is now under serious attack in the country. He has accused these unelected judges of practising political interference and trying to deploy a judicial dictatorship.
“Brazil is on the road to dictatorship. This is how dictatorships start now. You lose your freedom little by little, then one day you look, and you are completely tied up,” he told network Jovem Pan.
After knowing all these extraordinary things, who would disagree? The democratic system is clearly being undermined by the replacement of the rule of law with the rule of judges. In fact, the premise that unelected judges know better what is best for the nation is elitist and utterly undemocratic.
It is ironic to see that now the major threat to democracy in Brazil now comes not from elected politicians but from a highly anachronistic judicial oligarchy.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association, editor-in-chief of The Western Australian Jurist, and served as a member of WA’s law reform commission from 2012 to 2017. Zimmermann has authored numerous books, including “Direito Constitucional Brasileiro,” “Western Legal Theory,” and “Christian Foundations of the Common Law.”