After reading the news that Jair Bolsonaro, former Brazilian president, had been convicted of attempting a coup after he lost the last election in the country, I debated with myself weather this trial had been conducted with democratic legitimacy.
As a Brazilian who lived in the country for 30 years, I remember the dictatorship of President João Figueiredo. I also recall how we celebrated as citizens when we were finally able to vote. I am therefore entitled to express my opinion in the Bolsonaro case. But it’s important to stress that I am neither a fan of Bolsonaro nor of President Luiz Inacio Lula da Silva. Both have policies that I disagree with and I don’t agree with how Bolsonaro conducted himself as president.
In my opinion, one of the problems Brazil faces is the lack of a ‘real’ politician who will put aside self-interest. However, this is something that seems to be becoming the norm around the world.
Issues with Bolsonaro’s trial
There are several reasons for raising concerns about the conduct of Bolsonaro’s trial, including various inconsistencies. Before examining these, it’s important to touch on the fundamentals of the Brazilian constitution itself.
The Brazilian constitution embraces the values of sovereignty, citizenship, dignity and political pluralism. The social value of work is important, as is freedom of thought and initiative. Anonymity is prohibited, in order to prevent defamation or abuse.
Significantly, judges are forbidden from engaging in political or party activities, which ensures their impartiality and independence. They are also prohibited from expressing their opinion, via any media, in relation to any pending trial. And they are not permitted to express disagreement or a negative opinion of other judicial decisions.
Who were the ministers involved in Bolsonaro’s trial?
Alexandre de Moraes, Minister of the Supreme Court (STF), demanded the closure of X (formerly Twitter) because some right-wing account profiles, weren’t blocked as ordered. By doing so, he seems to have gone against one of the fundamental principles of the constitution – freedom of expression. One jurist said it was a monocratic decision, while another mentioned that blocking social media accounts can only occur with a specific court order, which guarantees consequently, the rights of defence.
Moraes was appointed during Michel Temer‘s presidency after the sudden death of his predecessor. During the Operation Car Wash (Lava Jato) process, Moraes and 10 other ministers annulled the criminal actions against Lula. They argued that the judge from the magistrates’ court had not been impartial, and there had been procedural failures. It is worth mentioning that Lula wasn’t acquitted in any of the other courts before reaching the Supreme Court.
Carmen Lucia is the president of STF. She voted in favour of Bolsonaro’s conviction on the basis that he had infringed the Brazilian democratic process. She first got a seat in the court in 2006 after Lula, in his first presidency term, appointed her for the post as minister. She also voted in favour of annulling Lula’s criminal actions in 2021.
Cristiano Zanin, another minister from the STF, was also appointed by Lula in 2023 and voted in favour of Bolsonaro’s conviction. He has worked alongside Lula since 2013 and led the president’s defence in the Lava Jato’s processes.
Flavio Dino was also appointed to the STF by Lula in 2023 and voted in favour of Bolsonaro’s conviction. He was Minister of Justice and Public Safety during Lula’s first government. He had previously been a judge, but moved into politics for 20 years before being nominated to the STF.
Luiz Fux was the only minister who voted against Bolsonaro’s conviction. He was appointed by Dilma Rousseff in 2011. He had a respectful working relationship with Bolsonaro, however he criticised Bolsonaro’s position on the Covid-19 pandemic when he was the president of the STF in 2022.
Controversies and inconsistencies – selective justice in Brazil?
During Bolsonaro’s trial, Fux raised the fact that none of the defendants had the privilege of forum (jurisdictional immunity), as none held office at the time of the trial. Bolsonaro had finished his term in the previous year. As Fux said: “Either the case must go to the plenary, or it has to be sent down to the magistrates’ court” [translated into English]. He also noted the lack of evidence to back up charges.
In the Lava Jato’s case, Lula was judged in the magistrates’ court and went through all the stages of appeal: Federal Regional Court, Superior Court of Justice and Federal Supreme Court. Bolsonaro’s trial, by contrast, was taken directly to the Supreme Court, without going through all the hierarchy of the judiciary to review the decision.
While Lula was in jail, he was still able to keep social networks active and even participated in political activities. Bolsonaro was not allowed the same privileges during his trial.
What are the reasons for these differences? One could say that Bolsonaro was accused of more serious crimes – an attempted coup and the abolition of the rule of law. But these crimes require proof of violent conduct. Were they sufficiently proved? It looks as though they haven’t been.
Is it fair that a defendant can’t defend himself publicly and be listened to before being judged? Is it correct that Moraes presided over the investigation and then voted in Bolsonaro’s trial?
A red mark in Brazilian’s ‘democratic’ justice system?
Something extraordinarily out of proportion is the length of the sentence – 27 years and a few months. Some cases of murder result in sentences of only 19 years. Bolsonaro might be guilty of insurrection, but this sentence clearly shows how the STF is trying to remove him completely from politics.
Is this really a fair judgement? Is it democratic? Does it go with what is written in the constitution: “All power emanates from the people, who exercise it through elected representatives or directly” [translated into English]?
The irony is, by accident, the STF has transformed Bolsonaro into a political martyr.
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