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Constitutional Erosion in Brazil

By: Emilio Peluso Neder Meyer
Media of Constitutional Erosion in Brazil
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Published: 15-07-2021
Format: EPUB eBook (?)
Edition: 1st
Extent: 320
ISBN: 9781509941964
Imprint: Hart Publishing
Series: Constitutionalism in Latin America and the Caribbean
RRP: £58.50
Online price : £46.80
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About Constitutional Erosion in Brazil

This book provides a fascinating analysis of a single jurisdiction, Brazil, and accounts for both the successes and the failures of its most recent constitutional project, inaugurated by the Constitution of 1988.

It sets out the following aspects of the constitutional development and erosion:
- the different phases of the promised transition from military rule to a 'social-democratic constitutionalism';
- the obstacles to democratisation derived from the absence of true institutional reforms in the judicial branch and in the civil-military relationship;
- the legal and social practices which maintained a structure that obstructed the emergence of an effective social-democracy, such as the neoliberal pattern, the acceptance in the political field of unlawful organisations, such as the milícias, and the way the digital revolution has been harming the formation of democratic sovereignty.

Situating Brazil in the global context of the revival of authoritarianism, it details the factors which are common to the third wave of democratisation reflux. Accounting for those aspects, particular to the Brazilian jurisdiction, it shows that there is a tension in the Brazilian constitution.

On the one hand, such constitutionalism was renewed by democratic pressure on governments to undertake social politics since 1988. On the other hand, it retained authoritarian practices through the hands of diverse institutions and political actors.

By exploring the ideas of constitutional erosion and collapse, as well as democratic, social and digital constitutionalism, the book presents a comparative analysis of Brazil and other jurisdictions, including the United States, South Africa, and Peru.

Table Of Contents

Introduction: Defining Brazil's Constitutional Erosion
1. What is a Constitutional Crisis?
2. Constitutional Erosion
3. Constitutional Crisis and Constitutional Erosion: A Comparative Assessment
4. Brazil Under Bolsonaro: Soldiers as Politicians
5. Armed Forces and Politics: Brazil and Beyond
6. The Structure of this Book

1. Transitional Constitutionalism: Judicial and Military Attempts at Controlling a Transition
1. The Brazilian Dictatorship of 1964–1985 Juridical Apparatus
2. Transitional Justice Processes Shaping Constitutionalism
3. Amnesty and the Federal Supreme Court
4. The Dictatorship of 1964-1985 On Trial
5. Brazilian Institutions Coping with the Inter-American Court of Human Rights
6. The Military in Brazil: From Impunity to Politics

2. Social-Democratic Constitutionalism: Neoliberal Unconstitutional Politics and Socio-Economic Rights
1. Authoritarianism and Neoliberalism
2. Constitutions and Economic Power
3. Transformative Constitutionalism and Transformative Justice
4. Socioeconomic Rights, Constitutionalism and Transition in South Africa
5. Socioeconomic Rights, Constitutionalism and Transition in Brazil
6. Neoliberalism and Transitional Constitutionalism

3. Institutional and Personal Guarantees: Judges, Inequality and Politics
1. Against the Transition: The Lack of Efficient Judicial Institutional Reforms
2. Corporativist Guarantees
3. Operation Carwash: Taming Politics Through Judicial Discourse
4. Operation Carwash Personification
5. From the Bench to Mega-Politics
6. Individualities vs Institutional Behaviour

4. Judges and Courts Destabilising Constitutionalism
1. Deputies and Senators in the Federal Supreme Court
2. The Judicial Oversight of an Impeachment
3. Ruling on Presumption of Innocence: Balancing and Unbalancing Constitutional Rights
4. Imprisoning the Ex-President
5. Constitutional Courts and Political Instability
6. Unstable Constitutionalism in Brazil

5. Subverting the Rule of Law: The Military vs the Milícias Disputing the Constitutional Erosion
1. The Military in Brazilian Post-1988 Democracy
2. Soldiers Returning to Politics
3. Militarised Public Security
4. Supporting Elections via Milícias
5. Constitutional Erosion or Blatant Coups? A Comparative Assessment
6. Fuelling Attacks on Constitutional Democracy

6. Moderating Powers? Military and Judges in Brazilian Constitutionalism
1. An Overview of the Moderating Power
2. Authoritarianism: A Substitute for the Moderating Power
3. The Ghost of the Moderating Power and the Military Elite
4. 1964-1985: Suspension and Return of the Moderating Model
5. Moderating Power Transfer: From the Military to the Judiciary and Back Again
6. A Case of Weak Democracy Syndrome

7. Digital Constitutionalism: WhatsApp Elections and Fake News
1. Capitalism, New Technologies and Democracy
2. Surveillance Capitalism and Instrumentarian Power
3. Politics and Network Propaganda
4. Fake News, Authoritarianism and Political Choices
5. WhatsApp, Elections and Misinformation
6. Controlling Fake News in Brazil

8. Constitutional Resilience Against Erosion: Responses Provided for by the 1988 Constitution
1. Coalitional Presidentialism and Its Misuse
2. The Constant Threat of Impeachment
3. Capturing State Institutions and Fighting the Media
4. Parliamentary Control and the Abuse of Executive Orders
5. On Federalism: The Governors' Reactions
6. 'I Will Interfere!' The Supreme Federal Tribunal Fights Back

Epilogue

Reviews

“A comprehensive, in-depth account and analysis of the dramatic erosion of constitutional democracy in Brazil – required reading not just for anyone interested in Brazil, but for anyone interested in the spread of illiberal, authoritarian populism across South America and around the world today. Emilio Peluso Neder Meyer identifies brilliantly the causes and manifestations of constitutional crisis presided over by Bolsonaro's government, and traces them, among other things, to tensions between the democratic and authoritarian ingredients of the Brazilian Constitution.” –  Wojciech Sadurski, Challis Professor of Jurisprudence, University of Sydney, Australia

“It is a significant contribution to comparative constitutional studies: not only does it introduce and exhaustively explore the concept of constitutional erosion, but also brings to the international audience one of the best analyses of how courts and the military may contribute to such a phenomenon. Emilio Meyer's impressive capacity of connecting comparative studies and examples to Brazil's fascinating - and sometimes surreal - constitutionalism is to be celebrated, but even more so is his belief in the strength and resilience of Brazilian constitutionalism to combat those who have the power to erode it. This is a must-read book!” –  Juliano Zaiden Benvindo, Associate Professor of Constitutional Law, University of Brasilia, Brazil

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