Judicial Tyranny in Brazil

Judicial Tyranny in Brazil

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Commentary

Indigenous people have special protection under Brazilian law. This was so at least until Dec. 12, when an indigenous leader was arrested by order of Justice Alexandre de Moraes of the Supreme Court of Brazil.

Cacique Serere (“Chief Tserere”) of the Xavante Tribe dared to criticise the behaviour of top electoral judges during the recent presidential election in Brazil, so he suffered aggression and was arrested by a new kind of communist-style police operation ordered by Moraes.

On the night of Dec. 13, Moraes was denounced before the Inter-American Court of Human Rights for violating several articles of the Pact of San José of Costa Rica, with the arrest of Cacique Serere.

The complaint, signed by the Latin American Journalism Council, requests, as a matter of urgency, a precautionary measure for the International Court to make a recommendation for the immediate release of the indigenous leader because, according to Law 6001/73, Brazilian Indians are considered unimputable.

“The arrest of an indigenous person without due process of law and without respecting the status of indigenous peoples constitutes a crime against indigenous peoples,” states the complaint.

There are numerous other arbitrary arrests happening across the country. The Brazilian judiciary has now moved on to a new phase, and the federal police keep carrying out the arrest of people on political grounds.

In many cases, stated two U.S. journalists for The New York Times: “Justice Moraes has acted unilaterally, emboldened by new powers the court granted itself in 2019 that allows it to, in effect, act as an investigator, prosecutor and judge all at once.”

Epoch Times Photo
Brazilian presidential candidate for the leftist Workers Party (PT) and former President (2003-2010), Luiz Inacio Lula da Silva (R), greets Brazilian judge Alexandre de Moraes after he took over as head of the Superior Electoral Tribunal, at the TSE headquarters in Brasilia, on Aug. 16, 2022. (Evaristo Sa/AFP via Getty Images)

Rights Guaranteed by Law

Freedom of speech is protected by Article 5, IV, of the Brazilian Constitution, which provides that “the manifestation of thought is free and protected.”

This right is further guaranteed under Article 5, IX, according to which every expression of intellectual, artistic, scientific communication is “free and immune to censorship or license.”

What is more, free speech is also guaranteed through Article 13 of the American Convention on Human Rights, which has been turned into Brazilian law through Federal Decree No. 678 of 1992.

Apparently, however, nobody in Brazil has been allowed to question the result of the recent presidential election. Whoever dares to do so runs the risk of being immediately arrested and prosecuted.

Indeed, Moraes says that anyone who shares any shred of doubt about these electoral results, according to him, “will be treated like criminals.”

Amid allegations of massive electoral fraud, Brazilians have been protesting in their millions over hundreds of cities nationwide. These apparently are the biggest mass protests ever in human history.

“The problem is that millions of Brazilians do not believe or trust the [top electoral court] and say the electoral high court is part of the electoral fraud scheme in this presidential election,” says Iolanda Fonseca, a journalist for The Rio Times.

Judicial Overreach

Moraes was appointed as president of the nation’s top electoral court in August 2022. Prior to this, in April 2005, he was appointed by then President Lula da Silva to join the first composition (biennium 2005-2007) of the National Council of Justice (CNJ).

From 2002 to 2005, he served as the Secretary of Justice and Defense of Citizenship of São Paulo state under the then Governor Geraldo Alckmin, the candidate for vice president on Lula’s presidential ticket.

Epoch Times Photo
Brazilian Supreme Court judge Alexandre de Moraes is pictured during a session to rule on whether former president Luiz Inacio Lula da Silva should start a 12 year prison sentence for corruption, potentially upending this year’s presidential election, at the Supreme Court in Brasilia, Brazil, on April 4, 2018.
(Victoria Silva/AFP via Getty Images)

During this year’s presidential election, Moraes issued numerous orders against alleged “fake news.” He ordered social networks to remove thousands of posts and arrested numerous supporters of the president without a trial for posts on social media that he claims “attacked Brazil’s institutions,” namely his own court.

In addition to sending some of Bolsonaro’s supporters to jail, Moraes also ordered the confiscation of their electronic devices and the freezing of their personal bank accounts.

Another example, on March 18, Moraes ordered the nationwide suspension of Telegram.

President Jair Bolsonaro, who sought re-election, relied on this messaging app to reach his voter base. He has more than a million followers on the platform, and this proved crucial to his electoral campaign.

The ruling came after Telegram ignored an earlier order to block the account of Allan dos Santos, a supporter of Bolsonaro accused of spreading “misinformation.”

Not only did he order the shutdown of the messaging app nationwide, but he also ordered Apple and Google to introduce “technological obstacles” to block Telegram on their operating systems and withdraw it from their digital stores in Brazil.

After knowing all these extraordinary things, who would dare say that these presidential elections in Brazil were fair or transparent? Certainly not the millions of Brazilians turning out to protest against the lack of transparency in this electoral process.

Curiously, writing for The New York Times on Sept. 26, U.S. journalists Jack Nicas and André Spigariol argued that these arbitrary rulings of activist judges like Alexandre de Moraes “could have major implications for the winner of the presidential vote.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Augusto Zimmermann

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Augusto Zimmermann was born in Brazil and emigrated to Australia in 2002. He is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association and served as a member of WA’s law reform commission from 2012 to 2017. Zimmermann has authored numerous books, including “Direito Constitucional Brasileiro,” “Western Legal Theory,” and “Christian Foundations of the Common Law.”

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