Chief Justice Dias Toffoli and President Bolsonaro

Hours after one of the most controversial sessions in Brazilian congressional history, the newly elected Senate President Davi Alcolumbre addressed his colleagues in an inaugural speech. Though his words were largely generic, there was one part of his address which was a clear challenge to the Federal Supreme Court (STF), the highest tribunal in the country. Mr. Alcolumbre promised a strong and rehabilitated legislature, one that “will not bend to the petty intrusion of the Judiciary branch.”

Mr. Alcolumbre’s barb was directly targeted at the Supreme Court Chief Justice Dias Toffoli, who had issued an injunction at 4 am that morning ordering the presidential election in the Senate take place by way of a secret ballot. Despite being the highest tribunal in Brazil, tasked with “safeguarding the Constitution,” some Senators discussed the possibility of disobeying the Supreme Court ruling, showing just how fraught the relationship between the two powers has become.

As a knock-on effect of the quarreling between the Senate and Supreme Court, Alessandro Vieira, a first-term senator from the northeastern state of Sergipe, has gathered 27 signatures to launch a Parliamentary Committee of Investigation (CPI) into the activities of Judiciary branch. Intending to probe what Mr. Vieira calls “the black box” of the court system, the CPI would go after the alleged abuse of the powers of Supreme Court justices, and their ability to take cases under advisement to delay or even completely block proceedings.

The final appeals court for all proceedings in the civil and criminal sphere, Brazil’s Supreme Court is a strange beast. STF justices do not need any particular experience as appellate magistrates, and they are directly appointed by the president to what is the highest-paying public service job in the country.

Their ability to speed up and stall proceedings at will, as well as their habit of rendering slews of (often conflicting) individual injunctions, have made something of a mockery of the court.

The first against the wall

Amid Congress’ backlash against the Supreme Court, one justice in particular has been singled out for special attention. Justice Gilmar Mendes, among the most controversial members of the court, has been formally placed under investigation by Brazil’s federal revenue service.

Auditors have reportedly found evidence suggesting the justice and his wife committed crimes of fraud, corruption, influence peddling, and money laundering. A May 2018 report points out a change in net worth of almost BRL 700,000 in 2015, with no substantiating reasons. Moreover, the document explains the influence peddling allegation due to the fact Mr. Mendes “rules on cases represented by firms linked to his [wife],” suggesting that said connection sways Mr. Mendes’ opinion on cases.

supreme court corruption

Supreme Court Justice GIlmar Mendes

In response, Justice Mendes asked Chief Justice Dias Toffoli, Prosecutor General Raquel Dodge, and Minister of the Economy Paulo Guedes to investigate whether the auditors crossed the line when targeting him. In a statement, Justice Mendes compared Brazil’s fiscal authorities to the Gestapo—and his fellow court members expressed concerns that the judicial system was being targeted by the political class—as many high-profile politicians are battling corruption cases of their own.

The Supreme Court and Jair Bolsonaro

During last year’s campaign, it seemed certain that if Jair Bolsonaro were elected president, his relationship with the Supreme Court would be absolutely critical. With Mr. Bolsonaro portrayed by his opponents as a candidate with a desire to tear up the Brazilian Constitution, the STF—tasked with interpreting the country’s magna carta—was seen as the last bastion of democracy by some more hysterical pundits.

Granted, fears for the integrity of Brazilian democracy under President Jair Bolsonaro were not so far-fetched, particularly after comments made by his son, congressman Eduardo Bolsonaro, who mused that in order to close the Supreme Court, “you don’t even need a jeep [of soldiers], just a private and a corporal.”

Jair Bolsonaro’s government program also contained a reference to reorganizing the Supreme Court, increasing its size to 21 members, with the right to appoint new members, of course, being the prerogative of the president.

While this is highly unlikely to occur, Jair Bolsonaro will have the opportunity to leave his mark on the composition of the STF, without having to change the constitution. Supreme Court justices are put into forced retirement as soon as they turn 75. By the end of Mr. Bolsonaro’s term, justices Celso de Mello and Marco Aurélio Mello (appointed to the court by former president Fernando Collor de Mello, his cousin) will be put out to pasture. It will be up to Mr. Bolsonaro to fill the vacancies with members of his choosing.

Until then, the Supreme Court has the potential to greatly affect the current government, and could scupper the administration’s plans. For instance, Jair Bolsonaro’s economic team is hoping to raise tens of billions this year by selling off publicly-owned companies. However, it will first need to wait for the Supreme Court to settle a dispute on privatizations.

There is a case pending in the STF concerning the need for prior authorization from Congress for the privatization of state-owned companies. As things stand, rapporteur justice Ricardo Lewandowski issued an injunction ordering the government to seek approval from the legislature before selling off state-owned companies, a rule which could cause significant headaches for the administration and its extensive privatization plans. In a report, the office of the Federal Attorney General agrees with Justice Lewandowski.

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BY Euan Marshall

Euan Marshall is a Scottish journalist living in São Paulo. He is co-author of A to Zico: An Alphabet of Brazilian Football.