Courts and Democratic Preservation in Brazil: Legal Accountability for Anti-democratic Attacks and Judicial Resistance Post-elections

• In Event: Politics

Abstract

This paper addresses the role of courts after leaders responsible for democratic backsliding actions are ousted by electoral results. How should legal institutions address anti-democratic actions that drove backsliding processes by leaders ousted by the vote? How should courts behave to foster democratic resilience? What are the criminal and electoral constraints that should be imposed? To answer these questions, I assess the recent Brazilian political landscape. I provide evidence of two decisive legal cases in which courts are engaged in addressing Bolsonaro’s coalition actions to attack the democratic regime from both electoral law and criminal law perspectives. First, the Electoral Superior Court blocked Bolsonaro from running for office for eight years. Second, the Supreme Court is trialing a criminal case against Bolsonaro, cabinet members, military personnel and close allies from crimes against democracy. I argue that judicial resistance mechanisms to hold anti-democratic leaders accountable might extend beyond their terms. Thus, the article derives from the Brazilian case an argument for legal accountability as a mechanism to foster democratic resilience and prevent further erosion.

Author

• Daniel Bogéa, UNSW Sydney