Autocracy in Brazil: how the trend influenced the imprisionment of a former President and the election of an autocrat one

Ms. Maíra Tito

The purpose of the article is to analyse the current populist trend in brazilian politics, represented by the election of President Jair Bolsonaro and by recent shift in constitutional interpretation by the Constitutional Court (Supremo Tribunal Federal – STF) regarding the possibility of imprisionment before the final appeal to superior courts. Until 2016, jurisprudence at the STF expressed the understanding that the imprisionment before the final appeal to superior courts was a violation of Article 5, LVII, of the Brazilian Constitution of 1988, which contains the guarantee against arbitrary arrestment that is described in Article 9 of the Universal Declaration of Human Rights. From the decision delivered in case Habeas Corpus 126.292/SP, the STF declared that the imprisionment in that case is not a constitutional violation anymore. The new jurisprudence had large support from the mainstream media and some sectors of society, for it was supposedly meant to punish politicians accused of corruption. That discourse was captured by candidate Jair Bolsonaro, who added some classic elements from Fascism and Nazism discourses and ended up winning the elections in 2018. The shift in interpretation was particulary celebrated when it made possible to imprision former President Luis Inácio Lula da Silva. The theory of Integrity in Law, presented by Ronald Dworkin in Law’s Empire was quoted in Minister Rosa Weber to justify the shift in interpretation, when analysing the case Habeas Corpus 152.752/PR, which is historically relevant since it regards the imprisionment of the former President. The article presents a critical view of the current populist trend and of the case Habeas Corpus 152.752/PR, through interdisciplinary research methodology that resembles critical legal studies, but also holds an applied nature, since the conclusion is that the previous interpretation was fairer than the current one, so it should prevail. The article tackles the content of the decision, the signs of indulgence to public opinion by the Ministers, the capture of the populist discourse by the elected President and the transfer of concepts from Dowrkin’s theory, to present the mentioned conclusions.