Brazil's Supreme Court has launched and presided over investigation procedures on alleged fake news. The so-called “Inquiry of the End of the World” (Inquérito do Fim do Mundo) was initiated by the President of the Court, Justice Toffoli, and overseen by another member of the court, Justice Moraes (also rapporteur). Brazil's Constitution and General Principles of Law regarding investigations and due process require different acts to be performed by different actors. By due process, the police investigate, prosecutors accuse, and judges judge. In the Inquiry of the End of the World, judges investigate, prosecute, and judge. In a surprisingly evident festival of illegal acts, the rapporteur ordered searches and seizures, censorship, and arrests. A series of unlawful infringements of fundamental rights added to alleged political interests behind this investigation led to this research questioning: Is Brazil's Supreme Court stepping out of its constitutional mandate and limits? What impacts can such developments have on Brazilian checks and balances?
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Montesquieu’s theory on separation of powers, which stems from Locke’s concerns regarding the possibility of abuse by the sovereign and thus the need to limit such power, induces a belief that it is from the executive branch that the risk of a tyrant to emerge is greater (Montesquieu, 2004; Locke, 2013; Vasconcelos, 1996; Barbosa & Saracho, 2018; Nuñez & Quintana, 2014; The Debate Over the Judicial Branch, n.d.). The American framers1 as well as the French revolutionaries shared this perception, for tyranny is formed when:
Someone employs the power he has in his hands, not for the good of those who are under it but for his own private individual advantage...a governor, however entitled ·he is to govern·, is guided not by the law but by his own wants, and his commands and actions are directed not to preserving his subjects’ properties but to satisfying his own ambition, revenge, covetousness, or any other irregular passion. (Locke 2013, p. 199)
In this context, in all modern democracies, whose system of checks and balances have been built upon the theoretical notes from those British, American, and French theorists and practitioners, the parliamentarian legislative and especially the Judges have been appointed as the guardians of the balance between the branches in order to avoid the emergence of tyrants:
Of the three branches, the judicial branch was “least dangerous,” because it only had the power of judgment. They denied that jury trials were always necessary or were endangered, either by the silence of the Constitution on civil cases or by the appellate jurisdiction of federal courts in matters of fact. They defended the jurisdiction of the federal courts as the only means to provide justice in foreign and interstate cases and impose uniform obedience to the Constitution and federal law. Federalists viewed the courts as the intermediary between the people and Congress and the Presidency. The courts, through judicial review, would uphold the Constitution against attempts by Congress or the President to enlarge their powers. As such, the judiciary was a protector of the people, not a danger to their liberties. (The Debate Over the Judicial Branch, n.d.)
What do make of it when the Judiciary oversteps its constitutional boundaries, and itself poses a risk to the balance of powers in a democracy? Who controls the controllers? Who watches the watchers?
The purpose of this essay is to examine the risk posed by a Judiciary in a consolidating democracy that employs its checking and controlling competencies to undermine the political and constitutionally set discretion of the Executive, most likely for political reasons.
Brazil, as a consolidating democracy (O’Donnell, 1988; Linz & Stepan, 1996; Vitória, 2021), has struggled with what O’Donnell calls stagnating transition, where political actors, civil society and the political system itself loose the drive or do not control the mechanisms to continue advancing in the consolidation.
The Brazilian democratic transition stagnation can be noticed by a close comparison of O’Donnell’s almost 25 year-old characterization of Brazil’s general political scenario and transition (i-strong presence of the armed forces within the state apparatus and government; ii-they have not yet been institutionally distanced or subordinated form the civilian government; iii-political elitism still works to maintain the strength of patrimonialism, concentrated production and institutional violence against the citizenship). As the Brazilian Armed Forces’ authoritarianism has continuously been associated with their control of the Executive branch, Hamilton’s association of the Executive branch and “the sword” has been confirmed by the Brazilian historical experience.