Constitutional Erosion in Brazil

251 Pages·2021·3.699 MB·English

by  Emilio Peluso Neder Meyer

CONSTITUTIONAL EROSION IN BRAZIL
This book provides a fascinating analysis of a single jurisdiction, Brazil, and
accounts for both the successes and the failures of its most recent constitutional
project, inaugurated by the 1988 Constitution.
It sets out the following aspects of constitutional identity and erosion:
– the different phases of the promised transition from military rule to a social-
democratic constitutionalism;
– the obstacles to democratisation derived from the absence of true institutional
reforms in the judicial branch and in the civil–military relationship;
– the legal and social practices which maintained a structure that obstructed the
emergence of an effective social democracy, such as the neoliberal pattern, the
entrance in the political field of unlawful organisations, such as the milícias,
and the way the digital revolution has been harming democratic sovereignty.
Situating Brazil in the global context of the revival of authoritarianism, it details
the factors which are common to the third wave of democratisation reflux.
Accounting for those aspects, particular to the Brazilian jurisdiction, it shows
that there is a tension in the Brazilian constitution.
On the one hand, such constitutionalism was renewed by democratic pres-
sure on governments to undertake social politics since 1988. On the other hand,
it retained authoritarian practices through the hands of diverse institutions and
political actors.
By exploring the ideas of constitutional erosion and collapse, as well as
democratic, social and digital constitutionalism, the book presents a compara-
tive analysis of Brazil and other jurisdictions, including the United States, South
Africa and Peru.
Volume 1 in the Constitutionalism in Latin America and the Caribbean series
Constitutionalism in Latin America and the Caribbean
Series editors:
Richard Albert
Carlos Bernal
Catarina Santos Botelho
The Constitutionalism in Latin America and the Caribbean series publishes
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Constitutional Erosion
in Brazil
Emilio Peluso Neder Meyer
HART PUBLISHING
Bloomsbury Publishing Plc
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First published in Great Britain 2021
Copyright © Emilio Peluso Neder Meyer, 2021
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Library of Congress Cataloging-in-Publication data
Names: Meyer, Emilio Peluso Neder, author.
Title: Constitutional erosion in Brazil / Emilio Peluso Neder Meyer.
Description: Oxford ; New York : Hart, 2021. | Series: Constitutionalism in Latin America and the
Caribbean ; volume 1 | Includes bibliographical references and index.
Identifiers: LCCN 2021017088 (print) | LCCN 2021017089 (ebook) |
ISBN 9781509941957 (hardback) | ISBN 9781509950508 (paperback) |
ISBN 9781509942602 (pdf) | ISBN 9781509941964 (Epub)
Subjects: LCSH: Constitutional history—Brazil. | Brazil—Politics and
government—1985–2002. | Brazil—Politics and government—2003–
Classification: LCC KHD2919 .M49 2021 (print) | LCC KHD2919 (ebook) | DDC 342.8102/9—dc23
LC record available at https://lccn.loc.gov/2021017088
LC ebook record available at https://lccn.loc.gov/2021017089
ISBN: HB: 978-1-50994-195-7
ePDF: 978-1-50994-260-2
ePub: 978-1-50994-196-4
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For Renata, Isabela and Guido.

Acknowledgements
T
his book is partially a product of the COVID-19 pandemic. A few
months after I got the news that my proposal for it was to be included
in Hart Publishing’s Constitutionalism in Latin America and the
Caribbean series, my family and I were struck by the sudden death of my
younger brother, Guido. I must dedicate this book to so many people, but he
certainly deserves a central place in the project for all that he represented in my
life. If one also considers the context of the pandemic – this was at the start of
May 2020 – it is possible to understand that I was faced with both favourable
and adverse conditions. It was probably the challenge to work while mourn-
ing and the pandemic itself (with the adaption of classes for both me and my
daughter, Isabela, new working conditions, social distancing, and so on) that
pushed me hard to write this book. Under those circumstances, the support
of Renata, my wife, and Isabela, as well as my father (Tufi), mother (Maria
Elisabeth) and sister (Lorenza) was crucial. I must also dedicate this book to
Gabriela and João, Guido’s family, for showing me the strength to go on in dif-
ficult times. Friends that always supported both my academic and personal life
also – although at distance – played an important role. I know that it might be
unjust to name some of them and not others, but I must, at least, not forget my
undergraduate and faithful friend Cirilo.
All the madness that accompanied the rise of Jair Bolsonaro to the presidency
led me to revise the text several times. The erratic behaviour of the President of
the Republic was an extra factor to consider and directly affected the whole text.
Although the reader will find that constitutional erosion in Brazil started long
before his rise to power, it can also be seen that Bolsonaro and his aides have
contributed enormously to the current situation.
Bolsonaro also directly affected (and attacked) the environment of the
Brazilian universities that was so energetic and productive. Nonetheless, I
remain grateful to share a communicative space that is so fruitful. This book is
also, as I see it, the result of a work in progress and of a process of accumula-
tion and renovation. In this sense, I must thank all of those that surround me at
the Federal University of Minas Gerais (Universidade Federal de Minas Gerais,
UFMG), especially Marcelo Cattoni (who was supervisor of my masters and
doctoral degrees and is now a gentle colleague and friend), Renato Cardoso
and Misabel Derzi. By the same token, Thomas Bustamante has become a
partner in various projects that have influenced several parts of the book.
Fabrício Polido assisted my understanding of the controversies between law
and digital innovations, and influenced in writing chapter seven. Colleagues
from UFMG’s Institute of Advanced Transdisciplinary Studies (IEAT) helped
viii Acknowledgements
me to go beyond the borders of law, which impacted some of the chapters of
this book.
I must show all my gratitude to the team of researchers that has accompanied
me through the years at UFMG’s Study Centre on Transitional Justice –
even if some of them are formally no longer there. Felipe Tirado was extremely
generous and sharp (in a good way) in pushing me to review some parts of
the text. Mariana Rezende shared several of the arguments that appear in
chapter six and contributed a lot to improve it. Several other researchers read
the manuscript and provided important critical assessments: Mariana Tormin,
Ana Luiza Marques, Nathalia Brito, Natasha Burrell, Raquel Possolo, Ulisses
Reis, Ana Carolina Rezende and Bruno Castro.
Some debates outside UFMG helped give the book its final shape. Juliano
Benvindo always showed me the flipside of my arguments so I could improve
them. Jane Reis, Cristiano Paixão, Conrado Mendes, Rafael Mafei, and others,
exchanged with me their thoughts throughout the process and allowed me to
reach what I thought was a plausible reading of contemporary Brazil. Abroad,
Tom Daly, Anthony Pereira, Octávio Ferraz and Par Engstrom are some of
the people I thank for their influence. ICON-S became an excellent space of
discussion and innovation – the same goes for ICON-S Brazilian Chapter and
the Brazilian Association of Political Philosophy and Constitutional Law.
Publishing in blogs such as I-Connect and Verfassungsblog was important to
make the process more public.
Richard Albert, Catarina Botelho and Carlos Bernal Pulido, organisers of
the Constitutionalism in Latin America and the Caribbean series, were real
enthusiasts of the publication. I must especially thank Richard, who became a
true supporter and was always available to push the project forward. The entire
Hart Publishing team was fantastic in reviewing the manuscript and preparing
it for publication.
I shall thank the Brazilian National Council for Scientific and Technological
Development for providing me with a scholarship that was important for the
development of the whole project (CNPq, 304158/2018-6).
I must also thank to the German Law Journal, which authorised my use of
previously published material in chapters three and four.1
Emilio Peluso Neder Meyer
Belo Horizonte, March 2021
1 E Meyer, ‘Judges and Courts Destabilizing Constitutionalism: The Brazilian Judiciary Branch’s
Political and Authoritarian Character’, 19 German Law Journal 4, 727–768.
Table of Contents
Acknowledgements ......................................................................................vii
Introduction: Defining Brazil’s Constitutional Erosion ....................................1
I. What is a Constitutional Crisis? .......................................................3
II. Constitutional Erosion ....................................................................7
III. Constitutional Crisis and Constitutional Erosion:
A Comparative Assessment ............................................................10
IV. Brazil under Bolsonaro: Soldiers as Politicians ................................13
V. Armed Forces and Politics: Brazil and Beyond .................................17
VI. The Structure of this Book .............................................................19
1. Transitional Constitutionalism: Judicial and Military
Attempts at Controlling a Transition......................................................24
I. The Brazilian Dictatorship of 1964–1985 Juridical Apparatus .........28
II. Transitional Justice Processes Shaping Constitutionalism ...............34
III. Amnesty and the Federal Supreme Court ........................................40
IV. The 1964–1985 Dictatorship on Trial .............................................45
V. Interactions between Brazilian Institutions
and the Inter-American Court of Human Rights ............................48
VI. The Military in Brazil: From Impunity to Politics ...........................50
2. Social-Democratic Constitutionalism: Neoliberal
Unconstitutional Politics and Socio-Economic Rights .............................52
I. Authoritarianism and Neoliberalism ..............................................55
II. Constitutions and Economic Power ................................................58
III. Transformative Constitutionalism
and Transformative Justice .............................................................60
IV. Socio-economic Rights, Constitutionalism
and Transition in South Africa .......................................................66
V. Socio-economic Rights, Constitutionalism
and Transition in Brazil .................................................................71
VI. Neoliberalism and Transitional Constitutionalism .........................75
3. Institutional and Personal Judicial Guarantees: Judges,
Inequality and Politics............................................................................79
I. Against the Transition: The Lack of Efficient
Judicial Institutional Reforms ........................................................82
II. Corporativist Guarantees...............................................................84