The Trump Administration has recently imposed tough sanctions under the Magnitsky Act against Brazilian Supreme Court judge Alexandre de Moraes – the main culprit in the witch-hunt against former President Jair Bolsonaro and his conservative allies in Brazil. The sanctions block all assets that Moraes has in the US and prohibit American citizens from transacting with him. According to Press Secretary Scott Bessent:

‘Moraes is responsible for an oppressive campaign of censorship, arbitrary detentions that violate human rights, and politicised prosecutions – including against former President Jair Bolsonaro.’

To understand what is happening in Brazil, what follows is a brief history of the gradual suppression of fundamental human rights by a judicial oligarchy devoid of any accountability and respect for the rule of law.

On March 14, 2019, the then Chief Justice of the Brazilian Supreme Court, José Antonio Dias Toffoli, through Ordinance n. 69, opened police inquiry n. 4.781, whose objective was to investigate crimes related to ‘fake news’ that allegedly affected ‘the security of the Supreme Court, its members and family members’. In the same act, Toffoli appointed one of his colleagues, Justice Alexandre de Moraes, to preside over this entirely inquisitorial procedure, which, in turn, allowed him to appoint the federal agents and police officers who would assist in the conduct of the investigations.

The feat was dubbed the Fake News Inquiry.

Since then, writes state prosecutor Claudia R. de Moraes Piovezan, ‘A sequence of illegal and unconstitutional acts were practiced by public agents, at the order of the president of these investigations, and a sequence of interconnected political facts and events was unleashed, to build a narrative which has resulted in an overwhelming attack on individual freedoms, with an evident political and ideological purpose.’

Marcelo Rocha Monteiro, a state prosecutor in Rio de Janeiro and professor of criminal procedure at the State University of Rio de Janeiro, comments:

‘Inquiry n. 4,781 is a bizarre collection of illegalities: an investigation initiated not by the police or the Department of Public Prosecution, but by the Judiciary – which violates the accusatorial system. The violation of the accusatorial system compromises the neutrality of the judge (who before the process is initiated already investigates the alleged crimes), and who already begins the process with a preconceived view of the facts. As if that were not enough, this judge who accumulates the functions of investigator and magistrate is also, in theory, a victim of the alleged crimes. All this happened, it should be repeated, based on an entirely distorted reading of legal provisions which is incompatible with the Federal Constitution.’

According to Ludmila Lins Grilo, who at the time of the comment was a judge of the Court of Justice of Minas Gerais State:

‘What we have in Brazil is the establishment of an inquiry by the Supreme Court itself – a court constitutionally charged with guaranteeing the Federal Constitution – to investigate, hunt down and punish its own critics. Let’s be patently clear: investigation of ordinary citizens for criticism and jokes.’

Judge Grilo continued:

‘The freedom of our people is being suppressed in broad daylight. There has been a great fear of the population in exercising their basic freedoms, especially freedom of speech. Ordinary citizens, especially social media users, have been searched and seized at 6 am by the Federal Police because they published a joke, a meme, a criticism … it is no longer possible to guarantee, in Brazil, that anyone who speaks, writes or suggests something about the Supreme Court remains unscathed and guaranteed by the [constitutional protection of] freedom of speech that is so dear to us. It is no longer possible to consider writing texts, books, manifestations on social networks, teaching, or expressing any disagreement about the Supreme Court without this meaning a risk to the freedom or privacy of those who once dared to point out their miseries and lay bare the Court’s arbitrary will.’

Somewhat prophetically, this courageous judge concluded:

‘It is not even known if, after the publication of this article, I will remain with my criminal record immaculate – as it has always been until then – or if, since I perform the function of judge on national soil, I will continue to receive from the powerful the kind and gentle consent to remain in my judicial role. In this moment of demeaning legal insecurity and hunting for ‘inconvenient individuals’, the publication of an article with this content can hurt the fragile susceptibilities of those who feel affected by the criticisms they will read here, not being possible to guarantee that this author will not be framed in one of the most odious constructs of human perversity: the crime of opinion.’

Because of expressing these personal opinions, Judge Grilo, indeed, became the target of two lawsuits in the National Council of Justice (CNJ) and subject to investigation in the Supreme Court. As a consequence, she applied for political asylum and living in the United States since August 2022, because of the ‘dictatorship that has been installed in Brazil’. In an interview with Gazeta do Povo newspaper, Grilo explained that she ‘does not intend to return to Brazil’ and regretted ‘the implementation of a dictatorship through the top of the Judiciary’. ‘I am, officially, a Brazilian judge in political asylum in the United States,’ she wrote in her private blog.

Justice Alexandre de Moraes was appointed as the nation’s top electoral officer in August 2022. During the 2022 presidential campaign, he ordered social media outlets to remove thousands of messages and arrested numerous supporters of former President Bolsonaro without a trial. Writing for The New York Times, on 26 September 2022, journalists Jack Nicas and André Spigariol explained that such arbitrary judicial rulings ‘could have major implications for the winner of the presidential vote’.

Justice Moraes regularly issues ‘monocratic decisions’ against ‘misinformation’, sending some of the former president’s friends and supporters to jail, confiscating their electronic devices, and freezing their bank accounts. He also opened an inquiry against Bolsonaro just because he dared to express his concerns regarding the well-documented links between the Pfizer vaccine and risks of contracting myocarditis.

On August 23, 2022, Justice Moraes directed the Federal Police to execute search warrants in several states targeting a number of businessmen who supported the former President. He ordered the Federal Police to raid their homes, to access their bank accounts, and to suspend their social media accounts, after alleging a need to combat ‘fake news’. As a result, numerous journalists, humorists, and ordinary citizens have been treated like criminals for simply daring to express opinions that might displease the status quo.

Unfortunately, however, Moraes is not the only judge who acts arbitrarily. To give just another example, Luís Roberto Barroso, another Supreme Court Justice, is a ‘vociferous opponent of Bolsonaro’ and passionate advocate of electronic voting machines. On August 9, 2021, Justice Barroso tweeted that, in Brazil, ‘[An] election isn’t won if it is not taken.’ This remarkable statement came from a judge of the nation’s highest court who, at the time of such statement, also presided over the Superior Electoral Court.

On February 19, 2022, Justice Barroso spoke at the Texas University Law School on the topic of ‘Ditching a President’. Thirty days earlier, he delivered another talk at the University of Chicago, where he candidly defined the actions of his Electoral Court in terms of ‘warfare operation’.

On June 26, 2019, he ordered that transgender prisoners who were born biologically male should be transferred to women’s prisons, because, according to him, ‘this is the only measure to allow them to have a social environment compatible with their gender identity’. A year later, Barroso decided that ‘homophobia’ and ‘transphobia’ should somehow be now classified as a form of ‘racism’ under the anti-discrimination law.

In one of his academic articles, Barroso excuses his judicial activism by claiming that the Brazilian Supreme Court ‘enjoys a position of supremacy’ over the executive and legislative branches of government. Such ‘supremacy’, he says, requires ‘an exercise of political power by the court with all its implications for democratic legitimacy’.

At the heart of Barroso’s interpretative method is the peculiar notion that, in deciding a case, an unelected judge should ‘improve the law’. Accordingly, writes Brazilian journalist J.R. Guzzo:

‘The eleven members of the Supreme Court seriously believe that they can do whatever they want.’

During his talk at the 9th Lisbon Legal Forum in Portugal, on November 16, 2021, Supreme Court Justice Dias Toffoli candidly confessed that ‘presiding over Brazil is not easy’ for these unelected judges. ‘We already have a semi-presidentialism with a moderating power control that is currently exercised by the Supreme Court,’ Justice Toffoli declared.

Of course, the system of government in Brazil is presidential. This supposed ‘moderating power’ by the judiciary is found only in the creative minds of activist judges. It amounts, in practice, to the usurpation of executive (and legislative) powers by an unelected judicial oligarchy devoid of any accountability.

Marcio L.C. Freyesleben, a state attorney at the Department of Public Prosecution in Minas Gerais State, argues that the Supreme Court, on its own, has already broken with the nation’s constitutional order and doctrine of separation of powers. To ensure further concentration of powers, he explains that the Court has assured its own supremacy over the executive and legislative branches of government. According to him, ‘At the heart of the Supreme Court is an ideological movement that, under the pretext of fighting the “dictatorship of the majority”, implements a “dictatorship of the minority” based on the counter-majoritarian opinions of the Court.’

That being so, Freyesleben comments:

‘The Fake News Inquiry came as the crowning achievement of an ongoing project of suppressing individual freedoms, especially freedom of speech, and imposing the supremacy of the Judiciary over the Executive and Legislative branches, with the constitutional rupture of the doctrine of separation of powers. These are the necessary expedients for the subsequent suppression of the democratic regime.’

Freyesleben has paid a very heavy price for exposing this truth. The plenary of the National Council of the Public Prosecutor’s Office (CNMP) has decided, by majority, to apply two penalties of censure against this state prosecutor. The penalty of censure harms the prosecutor’s career progression and, in case of recidivism, can lead to a dismissal.

According to Sandres Sponholz, public prosecutor of the State of Paraná, the Supreme Court has taken upon itself ‘the centralisation of Brazil’s destiny in relation to more relevant issues’. In this context, he continues, ‘It is astonishing that a small group of only eleven unelected individuals (therefore, who did not pass through the scrutiny of electoral suffrage) starts fabricating rights, duties and obligations that were not previously recognised by the law.’

According to Ran Hirschl, Distinguished Professor of Law and Politics at the University of Toronto, the ultimate purpose of this form of ‘juristocracy’ is the concentration of powers in the hands of an unelected judicial elite so as to serve the best interests of the ruling political, economic, and legal elites:

‘The most plausible explanation for the voluntary self-imposition of a strengthened judiciary is that the holders of political, economic and judicial powers … consider that the limits imposed by the Judiciary in their political sphere actually benefit their own vested interests. In other words, those who are willing to pay the price of strengthening the judiciary can only consider that their position (absolute or relative) would be improved under a juristocracy.’

The Brazilian legal-political scenario is therefore deeply frightening. The communistic oligarchy that controls the country has developed a rather sinister agenda to acquire total power and control over society. Hence the judicial mechanism to ensure ad infinitum permanence in power. As a result, fundamental human rights are regularly undermined in favour of authoritarian judicial rule, with the inevitable consequence that the nation’s democratic system has basically been destroyed. Brazilians are effectively under the yoke of a judicial tyranny.

Augusto Zimmermann is the Foundation Dean and Professor of Law at Alphacrucis University College. He also served as Associate Dean at Murdoch University School of Law and as a Commissioner with the Law Reform Commission of Western Australia.