Justice is blind (and modernist).

Photographer: PEDRO LADEIRA/AFP/Getty Images

Brazil's Post-Dilma Peril: Judicial Overreach

Mac Margolis writes about Latin America for Bloomberg View. He was a reporter for Newsweek and is the author of “The Last New World: The Conquest of the Amazon Frontier.”
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Well before the Brazilian Senate threw Dilma Rousseff out of office on Wednesday, by a commanding 61 votes to 20, even her most fervent supporters sensed her days as head of state were numbered. Yet to judge by the commotion from her loyalist rearguard, you’d think a political comeback were underway. The suspended president took the stand at her impeachment trial on Monday with protesters in the street, an impressive entourage in tow, and blessings from Bernie Sanders all the way to Hollywood. “Impeachment is a political death penalty,” Rousseff said, adding that her ouster amounted to “a coup.”

For all the drama of her trial -- the partisan bombast, Rousseff’s 14-hour grilling in the Senate, the tear gas in the streets -- political apostates were already negotiating the day-after. Sitting President Michel Temer was waiting for word of the proceedings with his bags packed for an official visit to China as Brazil’s new head of state. By early afternoon Wednesday, Rousseff’s mandate was finished, making her the second Brazilian leader to fall to impeachment since the return to democracy 31 years ago.

But there is logic to Rousseff’s obstinacy. By insisting that her ouster is illegitimate and the charges of her fiddling the federal budget a flimsy cover for a political putsch, Rousseff is no longer playing to the Senate but to public opinion, and to courts of law in Brazil and beyond. She has vowed to appeal to the Brazilian Supreme Court. And at her urging, the human rights commission of the Organization of American States recently pressed Temer’s government for explanations (and was quickly rebuffed).  

Such maneuvers are part of a compelling political endgame: Cast Rousseff as the victim of a Latin Thermidor, and blame Brazilian “elites” plotting to sweep away social gains of the last decade. Never mind that those gains are already under assault by the fiscal profligacy of the Lula-Rousseff years, which sent the Brazilian economy tumbling into severe recession, erased jobs and gutted the country’s standing among creditors. By spinning the political contest of impeachment as a travesty of justice, Rousseff may be hoping to build a narrative for an eventual comeback.

Or she may be angling for something more expedient and far more troubling -- turning politics over to the courts. Forget the cant about right-wing “usurpers” and a “parliamentary coup”; Brazilian democracy will survive impeachment uninterrupted. But far less attention has been paid to another kind of usurpation: judicial overreach. Yes, Brazil’s diligent police and savvy prosecutors are working overtime to bring crooked big shots to justice, and the courts have done their part. But as politicians have fallen into disrepute, judges and prosecutors are leaning in and taking up space that elected officials ought to fill, sometimes encouraged by the very politicians they are upstaging.

This isn’t new. Consider the Supreme Court’s 2006 decision to overturn a congressional bill limiting the ridiculous number of political parties allowed to field candidates. The result: Brazil has 27 parties with representatives in Congress, many of which have no discernible platform other than to hold government ransom for the maximum amount of pork. Rousseff’s ruling coalition was a crab barrel of nine parties before it fell apart.

However, the current political imbroglio has raised interventionism to alarming heights. True, often the Brazilian courts are a last recourse. Thanks to country’s indulgent parliamentary privilege, the Supreme Court is the only body that can judge sitting lawmakers, nearly half of whom are either criminal defendants or have been convicted of a crime. And of course, impeachment naturally pits the executive against its congressional adversaries, a standoff that often demands arbitration.

But recently, the high court has gone beyond safeguarding the Constitution to kibitzing on the arcana of congressional regimen and refereeing points of order. In December, the 11-member high court intervened on the composition of the congressional subcommittee assigned to review the case against Rousseff, and in April the full bench spent hours deliberating over rules for the roll call vote on impeachment in the plenary.

Not surprisingly, such influence can breed swagger. Although home to respected constitutional scholars, the Supreme Court also has become a catwalk of judicial vanity, with bench members even sounding off even on cases that are under adjudication.

However, judges are not only to blame. With 315 articles and some 200 pages, the 1988 constitution is a monster, and holds forth on everything from interest rates to indigenous land rights. “Almost everything in Brazilian life can be interpreted as a constitutional matter" Michael Mohallem, a constitutional law scholar at the Getulio Vargas Foundation, told me.  

The danger of such a sweeping mandate is judicial incontinence; when every quarrel ends up in litigation, clearly, the courts cannot function. Every year, the Brazilian Supreme Court hears an “astronomical” 70,000 cases or more a year, a backlog not even the most illustrious bench could handle. The broader problem is that hyperactive courts diminish the role of elected officials -- often, ironically, with the complicity of politicians themselves. “Over and over, we have seen lawmakers defeated in a legislative vote immediately filing an appeal in court,” Mohallem said.

Which brings us back to impeachment. Rousseff has every right to a full and vigorous defense. That’s what Brazil’s drawn-out, ritualistic and politically agonizing impeachment process was all about. To challenge the Senate’s ruling in the Supreme Court and seek intervention by an international diplomatic court would not just prolong the agony, but second-guess Brazil’s democracy. And that’s the last thing this crisis-roiled country needs.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Mac Margolis at mmargolis14@bloomberg.net