tag:theconversation.com,2011:/us/topics/judicial-activism-51708/articlesjudicial activism – The Conversation2023-07-19T18:01:24Ztag:theconversation.com,2011:article/2090912023-07-19T18:01:24Z2023-07-19T18:01:24ZJudicial activism has had vastly different impacts in Brazil and the United States<figure><img src="https://images.theconversation.com/files/537835/original/file-20230717-230483-yzjj97.jpg?ixlib=rb-1.1.0&rect=0%2C395%2C4551%2C2629&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump sits next to Jair Bolsonaro at Mar-a-Lago in Palm Beach, Fla., in March 2020, when both men led their countries.</span> <span class="attribution"><span class="source">(AP Photo/Alex Brandon)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/judicial-activism-has-had-vastly-different-impacts-on-jair-bolsonaro-and-donald-trump" width="100%" height="400"></iframe>
<p>Earlier this summer, Brazil’s top electoral court <a href="https://www.bbc.com/news/world-latin-america-66070923">banned former president Jair Bolsonaro from running for office for eight years</a>. Bolsonaro is 68 and will be unable to run for president until he’s 75.</p>
<p>Five of seven electoral court judges supported the ban on Bolsonaro, who, in the lead-up to the 2022 election, spread misinformation about the legitimacy of Brazil’s electronic voting system. </p>
<p><a href="https://www.cbc.ca/news/world/brazil-election-lula-bolsonaro-violence-riot-military-vote-1.6574862">Brazil’s election was marred in violence, with voter suppression tactics occurring before the election</a>. After the vote, thousands of Bolsonaro supporters <a href="https://www.cbc.ca/news/world/bolsonaro-supporters-storm-brazil-congress-1.6707323">stormed the Presidential Palace, congress and the Supreme Court</a>.</p>
<p>“This response will confirm our faith in the democracy,” <a href="https://noticias.uol.com.br/ultimas-noticias/agencia-estado/2023/06/30/bolsonaro-inelegivel-confirma-fe-na-democracia-diz-moraes.htm">said Alexandre de Moraes</a>, a Supreme Court justice and head of the electoral court, as he cast his vote against Bolsonaro.</p>
<p>The former president is expected to appeal the ruling. However, he still faces 15 cases in the electoral court along with several ongoing criminal investigations. They encompass accusations that he improperly used public funds to influence the electoral vote and target his role in <a href="https://www.nytimes.com/2023/01/08/world/americas/brazil-election-protests-bolsonaro.html">provoking his followers to violence</a> on Jan. 8, 2023. </p>
<p>A conviction in these cases may render him ineligible to ever run for office.</p>
<figure class="align-center ">
<img alt="A man in a mask looks out a shattered window." src="https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537855/original/file-20230717-241434-iyqll0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A supporter of Jair Bolsonaro looks out from a shattered window of the Planalto Palace after he and his fellow protesters stormed it in Brasilia, Brazil, in January 2023.</span>
<span class="attribution"><span class="source">(AP Photo/Eraldo Peres)</span></span>
</figcaption>
</figure>
<h2>Lessons for the United States</h2>
<p>The court’s ruling demonstrates an essential milestone in Brazil’s young democracy while offering lessons for other countries. That’s particularly true for the United States, where former president Donald Trump is the frontrunner to be the Republican presidential candidate in 2024 despite being under two indictments.</p>
<p>First, it indicates that Brazil’s institutions tend to respond vigorously when they perceive threats to democracy and prioritize preserving institutional stability. </p>
<p>Second, it highlights the proactive engagement of legal systems in addressing substantial modern risks to democracy, like disinformation, hate speech and attempts to manipulate voters. </p>
<p>Finally, it establishes a precedent to punish leaders, even presidents, who try to manipulate voters and stoke polarization. </p>
<p>But there are also important implications about the role of the courts in elections and the impact of judicial activism.</p>
<p>Bolsonaro — <a href="https://www.nytimes.com/2021/11/11/world/americas/bolsonaro-trump-brazil-election.html">evidently inspired by his close ally, Trump</a> — followed a similar trajectory after losing his re-election campaign. Like Trump, he resorted to casting doubt and spreading misinformation about his country’s electoral system, ultimately leading to the storming of their respective democratic institutions. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1540669147952123904"}"></div></p>
<p>But the aftermath of their actions has unfolded in very different ways.</p>
<p>In Brazil, elections are governed by a federal court, which can determine whether candidates can seek office. The courts reacted swiftly after the Brazilian election, <a href="https://www.npr.org/2023/06/30/1185364211/brazil-bolsonaro-court-banned-election">barring Bolsonaro from re-election,</a> citing a threat to the country’s democracy. </p>
<p>American elections, however, are run by individual states, with different policies determining eligibility. Trump’s fate is therefore left up to the voters and the deliberative U.S. judicial system.</p>
<figure class="align-center ">
<img alt="A man holds up a yellow soccer jersey with a green No. 10 while another man smiles in an armchair beside him." src="https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/538159/original/file-20230719-21-drknta.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Jair Bolsonaro presents Donald Trump with a Brazilian national team soccer jersey in the Oval Office of the White House in March 2019.</span>
<span class="attribution"><span class="source">(AP Photo/Evan Vucci)</span></span>
</figcaption>
</figure>
<h2>Judicial activism</h2>
<p>The striking difference between the two cases is the role of the judiciary in federal elections. In Brazil, the court took on a role as a political regulator, <a href="https://www.theamericanconservative.com/brazils-emerging-judicial-dictatorship/">fuelling a debate about judicial activism.</a></p>
<p>Judicial activism — when the judiciary takes an active role in addressing instability, threats or inequality rather than simply responding to cases brought by third parties — <a href="http://dx.doi.org/10.2139/ssrn.3923921">is attracting growing interest from scholars.</a> </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/confidence-in-the-supreme-court-is-declining-but-there-is-no-easy-way-to-oversee-justices-and-their-politics-187233">Confidence in the Supreme Court is declining – but there is no easy way to oversee justices and their politics</a>
</strong>
</em>
</p>
<hr>
<p>The active role of courts often comes into play when democratic institutions are under threat, slow to act or neglectful in making crucial decisions or passing significant laws, leading to potential instability or dangerous legal loopholes.</p>
<p>Judicial activism has been <a href="https://www.poder360.com.br/eleicoes/em-debate-eleitoral-bolsonaro-critica-stf-e-ativismo-judicial/">particularly evident in the case of Bolsonaro</a>. A culmination of electoral misinformation, violence, threats against the judiciary and political instability resulted in the electoral court’s intervention.</p>
<p>This strong judicial response resulted in the loss of Bolsonaro’s political rights. It raises an important question: how far can a judiciary, intended to be independent and impartial, involve itself in the outcome of democratic proceedings?</p>
<p>Some scholars point out that <a href="https://theconversation.com/drafts/209720/edit">judicial activism can have negative effects on society.</a> </p>
<p>This is especially true when a president appoints court justices based on their political alignment and agenda. Trump did so and the result has been the <a href="https://www.nytimes.com/interactive/2022/06/24/us/politics/supreme-court-dobbs-jackson-analysis-roe-wade.html">endorsement of anti-abortion laws by the U.S. Supreme Court</a>. Another example is in Venezuela, where <a href="https://www.bloomberg.com/news/articles/2022-04-27/venezuela-appoints-new-high-court-packed-with-government-allies?in_source=embedded-checkout-banner">the judiciary has supported President Nicolás Maduro</a>, resulting in the persecution of politicians who oppose his established regime.</p>
<figure class="align-left ">
<img alt="A bald man sips from a white cup." src="https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537831/original/file-20230717-200504-t3lnuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Alexandre de Moraes, head of Brazil’s electoral court, sips coffee during Jair Bolsonaro’s trial at the Supreme Court in Brasilia, Brazil, in June 2023.</span>
<span class="attribution"><span class="source">(AP Photo/Gustavo Moreno)</span></span>
</figcaption>
</figure>
<p><a href="https://exame.com/brasil/bolsonaro-inelegivel-como-ficara-o-cenario-politico-entre-aliados-e-opositores/">The role of the courts in determining Bolsonaro’s fate has fuelled far-right extremism in Brazil</a>. The Supreme Court has become a target, with threats and violence directed at its judges and their families. <a href="https://pledgetimes.com/pgr-says-it-will-take-appropriate-measures-on-attacks-on-moraes/">De Moraes and his son, in fact, were recently attacked at an airport in Italy by three Brazilians</a>.</p>
<h2>Overreach?</h2>
<p>Bolsonaro’s followers believe the judiciary has overstepped its bounds, intruding into the political arena. This sentiment could benefit politicians endorsed by Bolsonaro in upcoming elections. </p>
<p>On the other hand, <a href="https://www.dw.com/pt-br/com-bolsonaro-ineleg%C3%ADvel-a-direita-deve-lucrar-mais-que-a-esquerda/a-66052529">right-wing politicians who employ disinformation and hate speech as tools for electoral manipulation may need to change tactics</a>, prompted by the fear of judicial repercussions for voter incitement. </p>
<p>The actual impacts of the electoral court’s ruling, and the future of the far right in Brazil, will be tested during municipal elections in October 2024.</p><img src="https://counter.theconversation.com/content/209091/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Judicial activism can be a double-edged sword. While it swiftly penalized Brazil’s Jair Bolsonaro for election misinformation that stoked violence, it’s resulted in anti-choice laws in the U.S.Gerson Scheidweiler, Post-Doctoral Research Fellow in Equity Studies and member of the Dahdaleh Institute for Global Health Research, York University, CanadaTyler Valiquette, PhD Candidate, Human Geography, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1030772018-09-12T21:21:37Z2018-09-12T21:21:37ZDoug Ford’s attack on the ‘Court Party’<figure><img src="https://images.theconversation.com/files/235996/original/file-20180912-133877-zu10ms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ontario Premier Doug Ford speaks to reporters in Toronto on Sept. 10, 2018, after announcing he'll invoke the notwithstanding clause in his battle to shrink Toronto city council. Is Ford taking on the "Court Party?"</span> <span class="attribution"><span class="source"> THE CANADIAN PRESS/Christopher Katsarov.</span></span></figcaption></figure><p>Ontario Premier Doug Ford has announced he intends to use the notwithstanding clause of Canada’s Constitution in his battle to shrink Toronto city council and reintroduce his controversial <a href="https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-5"><em>Better Local Government Act</em>.</a> </p>
<p>The unexpected announcement immediately followed a ruling by an Ontario Superior Court justice who ruled that the proposed legislation, <a href="https://news.ontario.ca/opo/en/2018/07/the-better-local-government-act.html">which would reduce the number of wards in the upcoming Toronto municipal election from 47 to 25,</a> violates the Charter rights of municipal candidates and voters. </p>
<p>If Ford follows through, it will be the first time the notwithstanding clause has been invoked in Ontario. The move has sparked outrage from Ford’s political opponents and municipal candidates, who have <a href="https://www.cbc.ca/news/canada/toronto/toronto-city-council-cuts-doug-ford-reaction-1.4817125">decried Ford’s use of the clause as an undemocratic abuse of power. </a></p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/235997/original/file-20180912-133883-jec253.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Brian Mulroney, father of Caroline, is ‘not a fan’ of the notwithstanding clause.</span>
<span class="attribution"><span class="source">(AP Photo/Jacquelyn Martin)</span></span>
</figcaption>
</figure>
<p>Even former prime minister Brian Mulroney, the father of Ford’s attorney general, Caroline Mulroney, <a href="https://ipolitics.ca/2018/09/11/premier-using-notwithstanding-clause-to-override-a-court-a-problem-brian-mulroney-says/">has publicly called the move “a problem.”</a></p>
<p>Ford’s motivation to slash the number of council seats seems clearly motivated by his personal experiences as a Toronto city councillor, where he worked alongside his brother, the late and controversial Toronto mayor Rob Ford, to reduce the size of government programs, limit municipal spending and reduce government waste in Canada’s most populous city.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/who-votes-for-a-mayor-like-rob-ford-20193">Who votes for a mayor like Rob Ford?</a>
</strong>
</em>
</p>
<hr>
<p>But Ford’s wielding of the notwithstanding clause should also be understood as part of a broader opposition to judicial activism that has developed among right-wing politicians and academics in the post-Charter era. </p>
<p>Ford is not merely taking a political shot at Toronto city council, but instead is using Section 33 of the Constitution to reassert the primacy of representative institutions over judicial authority. </p>
<p>Ultimately, this pushback against judicial activism is consistent with Ford’s populist drive to limit the influence of special interests and reinvigorate majority rule in Ontario. </p>
<h2>The Charter revolution</h2>
<p>The adoption of the Charter of Rights and Freedoms in 1982 had a transformative impact on Canadian politics. Charter cases have been used to resolve disputes and chart new policy direction over some of Canada’s most divisive political issues. Issues such as <a href="http://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/cases.html">same-sex marriage, abortion, assisted dying, Indigenous rights and religious freedom</a> have all been subject to Charter jurisprudence. </p>
<p>While the Charter has served as an important tool for the recognition of minority rights, it’s also invited a great deal of debate and criticism.
In their widely influential book, <em><a href="https://books.google.ca/books/about/The_Charter_Revolution_and_the_Court_Par.html?id=QD-TG9jic9EC&redir_esc=y">The Charter Revolution and the Court Party</a></em>, political scientists F.L. Morton and Rainer Knopff have argued that the Charter has undemocratically empowered the judiciary at the expense of elected bodies and the bureaucracy. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=518&fit=crop&dpr=1 754w, https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=518&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/235999/original/file-20180912-133880-xzhy2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=518&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Leader of the ‘Court Party?’ Richard Wagner, Supreme Court of Canada chief justice, is seen in this March 2018 photo.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Justin Tang</span></span>
</figcaption>
</figure>
<p>Morton and Knopff argue that in empowering the judiciary and allowing for the adjudication of important public policy decisions and social issues, the Charter has helped to create what they refer to as the “Court Party.”</p>
<p>Comprised of a cadre of left-wing groups and social movements, the “Court Party” concerns itself with causes like feminism, gay rights, multiculturalism and environmentalism, relying on the Charter as a strategic tool to pursue their political agendas in the legal arena. </p>
<p>The influence of these views on the Charter has extended well beyond the walls of academia to inform the opinions of political leaders. Stephen Harper was one such disciple of this view of judicial activism <a href="http://www.leaf.ca/elimination-of-the-court-challenges-program-ccp/">who, when in power, took steps to eliminate support for the funding of Charter challenges</a>. </p>
<p>It is within this broader intellectual tradition of opposition to judicial activism that we can understand Doug Ford’s decision to invoke the notwithstanding clause. </p>
<h2>A populist declaration against the courts</h2>
<p>In responding to the Superior Court judge’s ruling, Ford offered a response that harkened back to the notion of the “Court Party” while also offering opposition to judicial activism on democratic grounds. </p>
<p>Ford argued that the only opposition to his proposed legislation are <a href="https://www.youtube.com/watch?v=HChEDG8n4a0">“a small group of left-wing councillors” and “a network of activist groups who have entrenched themselves under the power of the status quo.”</a> </p>
<p>This framing of his opponents as institutionally entrenched, left-wing social activists evokes many of the defining characteristics of the “Court Party.” The response to the judge’s ruling is also consistent with what has become Ford’s governing mantra focused on limiting the influence and privilege of special interests while promoting the interests of “the people.”</p>
<p>It’s along these lines that Ford has also voiced his opposition to judicial activism. Ford concluded his bombshell news conference by stating that “if you want to make new laws in Ontario or in Canada, you first must seek a mandate from the people and you have to be elected.” </p>
<h2>Challenged courts’ legitimacy</h2>
<p>In this statement and others, Ford did not challenge the legal reasoning behind the judge’s decision. Instead he chose to attack the democratic legitimacy of the courts to make a ruling that overrides elected decision-makers. </p>
<p>Ford’s opposition to judicial activism on the grounds that it threatens the power and jurisdiction of elected institutions and representatives is clearly linked to his populist world view and vision of government.</p>
<p>However, it’s important to recognize that Ford’s framing of his opponents and the role of the courts is not of his own invention. It’s part of a longer intellectual tradition among right-wing thinkers in Canada.</p><img src="https://counter.theconversation.com/content/103077/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Budd receives funding from the Social Sciences and Humanities Research Council of Canada</span></em></p>Doug Ford’s wielding of the notwithstanding clause is part of a broader opposition to judicial activism that has developed among right-wing politicians and academics in the post-Charter era.Brian Budd, Ph.D Candidate, University of GuelphLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/918962018-03-28T10:41:44Z2018-03-28T10:41:44ZPakistan’s activist Supreme Court endangers a fragile democracy<p>Pakistanis head to the polls to elect their next prime minister in July. Until then, though, the Supreme Court seems to be in charge of the country.</p>
<p>In July 2017, revelations from the <a href="https://www.icij.org/investigations/panama-papers/">Panama Papers</a> leak spurred Pakistan’s high court to rule that then-Prime Minister Nawaz Sharif <a href="https://www.dawn.com/news/1348191">had lied to the public</a> about his <a href="https://www.dawn.com/news/1348211">family finances</a>. Sharif, who maintained his innocence, was forced to resign as prime minister. </p>
<p>However, he continued to lead his Pakistan Muslim League-Nawaz party, or PML-N, effectively controlling Pakistan’s government. Then, in February 2018, the <a href="https://www.theguardian.com/world/2018/feb/21/pakistan-court-bans-nawaz-sharif-from-leading-his-party">Supreme Court also removed him as party chairman</a>. </p>
<p>Because Sharif was not “honest” or “righteous,” Chief Justice of Pakistan Saqib Nisar additionally ruled, all “orders passed, directions given and documents issued” under his leadership were officially declared null.</p>
<p>Sharif and his supporters accuse Pakistan’s chief justice of <a href="https://www.geo.tv/latest/182030-nawaz-questions-morality-of-pco-judges">interfering in politics and swaying the upcoming election</a>. As a Pakistani political scientist, I fear they may be right. </p>
<h2>Judicial overreach</h2>
<p>Military coups used to be the biggest <a href="https://www.thequint.com/explainers/why-the-pakistan-army-enjoys-so-much-power-in-a-democracy-nawaz-sharif-jawaharlal-nehru-raheel-shareef-narendra-modi">risk to Pakistani democracy</a>. Thanks to coup d'etats in 1958, 1977 and 1999, my country has spent 33 years of its 71-year history under military rule. </p>
<p>To a people rightfully fearful of interference in their political system, then, the Supreme Court’s recent actions are alarming. By <a href="https://www.dawn.com/news/1390519">discrediting some politicians while seemingly overlooking corrupt public officials from other parties</a>, the judiciary is effectively influencing the outcome of July’s election.</p>
<p>How do a nation’s top judges – people sworn to defend the Constitution – become a threat to democracy? That’s the focus of my <a href="https://adnankrasool.files.wordpress.com/2017/02/rasoolfairbanks-working-paper-version-2.pdf">research on judicial independence in Pakistan</a>.</p>
<p>In Pakistan, as in other former British colonies, the Supreme Court has the power to take what’s called “suo motu” action. That means judges can rule on issues of their own volition, without any motion or complaint filed in court. </p>
<p>For instance, Chief Justice Nisar recently <a href="https://www.geo.tv/latest/181268-cjp-wraps-up-suo-motu-notice-on-zainabs-murder">ordered a hearing on the rape and murder of a young child in Lahore</a>, because closing that case quickly was deemed to be in the public interest.</p>
<p>As it happens, in recent years he has also removed the prime minister from public office <a href="https://www.reuters.com/article/us-pakistan-politics/pakistan-supreme-court-rules-ousted-pm-sharif-cannot-lead-his-party-idUSKCN1G51NX">twice</a>, <a href="https://tribune.com.pk/story/1588013/1-cjp-pays-surprise-visit-mayo-hospital/">conducted surprise inspections at government hospitals</a>, <a href="https://www.dawn.com/news/1385810">lambasted the media for commenting on open cases</a> and <a href="https://www.thenews.com.pk/latest/270481-cj-takes-suo-motu-notice-of-extra-judicial-murder-of-naqeebullah-mehsud">ordered investigations into police violence</a>. </p>
<p>Such sweeping authority creates a clash of institutions between the judiciary and other branches of government. Such competition can be detrimental to democracy. My research in several countries has found that when supreme court justices venture into political affairs, they create conflict with lawmakers and heads of state. </p>
<p>It is unsurprising, then, that Chief Justice Nisar’s suo motu cases over the past few months <a href="https://www.ndtv.com/india-news/nawaz-sharif-criticises-judiciary-says-pak-may-face-another-1971-1742159">have outraged many Pakistani politicians</a>, who say the justice is guilty of judicial overreach. </p>
<p>Nisar responds that he is simply following the law, adding that the “<a href="https://dailytimes.com.pk/220232/courts-are-not-enemies-but-friends-of-govt-cjp/">courts are not the enemies of the government</a>.”</p>
<h2>Sharif takes his case to the ‘people’s court’</h2>
<p>But to some, Nisar’s timing – the lead-up to a big national election – is suspicious. So, too, is <a href="https://www.nytimes.com/2018/02/11/world/asia/pakistan-military-supreme-court-mian-saqib-nisar.html">his selection of suo motu hearings</a>: The overwhelming majority of political cases added to the Supreme Court’s docket since 2015 have focused on Sharif’s party. </p>
<p>The <a href="https://www.rferl.org/a/pakistan-sharif-march-lahore-supreme-court/28669614.html">toppled prime minister</a>, for his part, claims that he is the victim of a “<a href="https://www.nytimes.com/2018/02/11/world/asia/pakistan-military-supreme-court-mian-saqib-nisar.html">judicial coup</a>.” At rallies <a href="https://www.geo.tv/latest/178919-nawaz-sharif-to-address-pml-n-rally-in-jaranwala-today">across Pakistan</a>, Sharif tells his supporters that since he cannot run for re-election this fall, he must ask them, the “people’s court,” to vote for his PML-N party.</p>
<p>The Supreme Court has already removed <a href="https://www.dawn.com/news/1386609">one PML-N senator, and two of its ministers are under investigation</a> for alleged contempt of court. Sharif and the PLM-N leadership cite these cases as evidence that the party is under judicial attack. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=514&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=514&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212025/original/file-20180326-188610-utz70u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=514&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pakistani opposition leader Imran has praised the Supreme Court’s ouster of Prime Minister Nawaz Sharif at campaign events.</span>
<span class="attribution"><span class="source">AP Photo/K.M. ChaudaryI</span></span>
</figcaption>
</figure>
<p>In targeting Sharif and his party, Justice Nisar has allowed the ousted prime minister to paint themselves as the underdogs, even though the party is still in power. This has <a href="https://tribune.com.pk/story/1608937/1-pml-n-sweep-2018-elections-report/">strengthened the PML-N’s position ahead of the upcoming election</a>. Currently, it is polling above its <a href="https://www.geo.tv/latest/169121-pml-n-retains-spot-as-most-popular-party-nawaz-as-most-favourite-leader">closest rivals by about eight points</a>. </p>
<p>Sharif also remains the most popular leader in the country, according to <a href="https://www.pakistantoday.com.pk/2017/11/24/pml-n-nawaz-sharif-most-popular-party-politician-gallup-pulse-surveys/">recent surveys</a>.</p>
<h2>Chief justice or general?</h2>
<p>Suggestions that the Pakistani military <a href="http://www.business-standard.com/article/news-ani/military-judiciary-nexus-behind-crippling-of-pakistan-s-democracy-say-experts-117090800195_1.html">was behind Sharif’s 2017 ouster</a> have bolstered <a href="https://timesofindia.indiatimes.com/world/pakistan/judicial-coup-ousts-nawaz-sharif-future-pms-at-court-mercy/articleshow/59816971.cms">the former prime minister’s claim of victimhood</a>. </p>
<p><a href="https://www.independent.co.uk/voices/nawaz-sharif-pakistan-prime-minister-imran-khan-disqualified-supreme-court-a7865171.html">Credible analysts</a> assert that the prime minister challenged Pakistan’s generals’ authority when he was in power by taking <a href="https://www.nytimes.com/2017/07/28/opinion/why-ousting-nawaz-sharif-sets-a-dangerous-precedent-for-pakistan.html">relatively noncombative approach to neighboring India and Afghanistan</a>. Normally, the Pakistani military – whose power is so enduring that Pakistanis often call it simply the “establishment” – directs regional security. </p>
<p>Sharif also butted heads with Pakistan’s armed forces during his 1997-1999 administration, ultimately leading to <a href="https://www.nytimes.com/1999/10/13/world/coup-pakistan-overview-pakistan-army-seizes-power-hours-after-prime-minister.html">his overthrow by the military in 1999</a>. </p>
<p>Since coups are no longer acceptable in Pakistan, the logic goes, this time the generals used <a href="http://foreignpolicy.com/2017/08/03/the-downfall-of-nawaz-sharif-pakistan-military-democracy/">legal action</a> to remove Sharif. </p>
<h2>Judicial overreach abroad</h2>
<p>Pakistan is not the only place questioning the limits of judicial intervention in the democratic process. </p>
<p>Bangladeshi courts used their suo motu powers to prosecute and <a href="https://www.economist.com/node/8560006">sideline a main opposition leader prior to elections in both 2008 and 2009</a>. </p>
<p>In Brazil, Judge Sergio Moro faced accusations of <a href="https://theconversation.com/presidential-corruption-verdict-shows-just-how-flawed-brazils-justice-system-is-90794">staging a judicial coup in January</a> when he convicted former President Luiz Inácio Lula da Silva of corruption, likely disqualifying him from this year’s presidential election. </p>
<p>Brazilian courts don’t have suo motu power. But judges there have used the judicial discretion of their civil law system to dramatically expand the scope of a nationwide bribery inquiry. <a href="https://www.cbsnews.com/news/brazil-operation-car-wash-involves-billions-in-bribes-scores-of-politicians/">Upwards of 100 congressmen and senators are now under judicial investigation</a>.</p>
<p>Judges in the United States, too, have the power expand the scope of a petition to the court. A classic example is the 2010 Supreme Court case <a href="http://www.scotusblog.com/2010/01/citizens-united-v-fec-in-plain-english/">Citizens United</a>. Nominally, the nine justices were supposed to rule on <a href="http://www.latimes.com/opinion/op-ed/la-oe-0301-bossie-citizens-united-20160226-story.html">what constituted political advertising</a>. Instead, they issued a much broader verdict on free speech and corporate money in elections. </p>
<p>In those countries, <a href="https://www.geo.tv/latest/176621-cjp-top-high-court-judges-to-attend-judicial-reforms-meeting-today">as in Pakistan</a>, judges contend they are simply doing their jobs, acting as a critical constitutional check on the political system.</p>
<p>But in a young democracy like Pakistan’s, the standoff between judges and the ruling party is fueling an unhealthy level of uncertainty during a campaign season. If the chief justice is not in fact staging a coup, I’m alarmed to say, it sure feels like he is.</p><img src="https://counter.theconversation.com/content/91896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adnan Rasool has previously worked as a political consultant in Pakistan. </span></em></p>It’s election season in Pakistan, and the Supreme Court is at war with the ruling party. Many Pakistanis wonder whether the nation’s top judge is cleaning up government or staging a judicial coup.Adnan Rasool, Ph.D. Candidate/ Student Innovation Fellow, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/907942018-01-29T11:30:42Z2018-01-29T11:30:42ZPresidential corruption verdict shows just how flawed Brazil’s justice system is<p>On Jan. 24, a Brazilian appeals court <a href="https://www.washingtonpost.com/world/brazil-on-edge-as-appeals-decision-nears-in-ex-president-lula-corruption-case/2018/01/24/e34ecccc-ff9b-11e7-86b9-8908743c79dd_story.html">upheld a criminal conviction against former President Luiz Inácio Lula da Silva</a>, rocking Brazil’s already <a href="https://theconversation.com/brazils-crisis-is-a-graduation-dilemma-and-theres-no-easy-way-out-77849">turbulent</a> political scene. The verdict, which <a href="https://www.theguardian.com/world/2017/jul/12/brazil-president-lula-convicted-corruption">confirms a 2017 ruling</a> against the wildly popular Workers’ Party leader on corruption charges, could carry a prison sentence of up to 10 years. </p>
<p>It may also make Lula <a href="https://www.as-coa.org/articles/explainer-brazils-clean-record-law">ineligible to run</a> in Brazil’s October presidential election. The 72-year-old is currently his party’s nominee and a <a href="https://www.bloomberg.com/news/articles/2018-01-22/it-s-jail-or-the-presidency-for-lula-as-key-brazil-ruling-looms">favorite to win the race</a>.</p>
<p>Lula’s lawyer has <a href="http://www.latimes.com/world/la-fg-brazil-lula-sentence-20180124-htmlstory.html">deemed</a> the appeals court verdict “a legal farce masquerading as justice.” Many Lula supporters agree, saying the ruling amounts to a preemptive presidential coup by the right wing.</p>
<p>His opponents, on the other hand, call the ruling a major victory against political corruption.</p>
<p>It’s a complicated case, but in my analysis, neither side has it quite right. As a Brazilian constitutional law professor and <a href="http://direitosp.fgv.br/supremoempauta">Supreme Court researcher</a>, I see Lula’s trials as a marquee example of Brazil’s flawed and inconsistent justice system. It confirms that Brazilian judges are on a moral quest to “cleanse” politics – and they’re willing to bend the law to do it. </p>
<h2>Brazil behind Lula</h2>
<p>The Jan. 24 verdict has upended Brazilian politics. That’s because Lula is not simply a former president convicted of corruption. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=704&fit=crop&dpr=1 600w, https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=704&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=704&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=885&fit=crop&dpr=1 754w, https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=885&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/203589/original/file-20180126-100902-17ti9q1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=885&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lula for president?</span>
<span class="attribution"><a class="source" href="https://flic.kr/p/Gbhkk3">Agência Brasil Fotografias/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Lula left office in 2010 after two four-year terms with <a href="https://www.reuters.com/article/us-brazil-lula-poll/brazils-lula-to-leave-with-record-high-popularity-idUSTRE6BF4O620101216">an 80-percent approval rating</a>. In 2009, Barack Obama called him “<a href="http://www.newsweek.com/brazils-lula-most-popular-politician-earth-79355">the most popular politician on Earth</a>. </p>
<p>Eight years later, <a href="https://www.bloomberg.com/news/articles/2018-01-22/it-s-jail-or-the-presidency-for-lula-as-key-brazil-ruling-looms">polls show Lula leading by 18 points over his closest rival</a> in the 2018 presidential race, despite <a href="https://www.reuters.com/article/us-brazil-corruption-lula-idUSKBN14421S">multiple recent indictments on graft charges</a>.</p>
<p>The loyalty derives largely from the Lula administration’s <a href="https://www.theguardian.com/global-development/2013/dec/17/brazil-bolsa-familia-decade-anniversary-poverty-relief">success in markedly decreasing hunger and poverty in Brazil</a>. As president Lula launched the Bolsa Família program, which gave cash to millions of poor families. He also created tuition incentives helped working-class students go to college and improved access to electricity. </p>
<p>Recently, though, reputation has been tarnished somewhat. Since 2012, the Supreme Court has convicted <a href="https://www.reuters.com/article/us-brazil-lula/brazils-supreme-court-convicts-lula-aides-of-corruption-idUSBRE8981ID20121010">four Lula allies</a> for orchestrating a sustained bribery scheme called ”<a href="https://www.economist.com/blogs/economist-explains/2013/11/economist-explains-14">Mensalão</a>.“ The cabinet members and ministers paid members of congress 30,000 reais – roughly US$10,000 – each month in exchange for legislative support on key issues. </p>
<p>Lula was never charged in the Mensalão, and he claims <a href="https://www.economist.com/news/americas/21568722-historic-trial-those-guilty-legislative-votes-cash-scheme-draws-close">he knew nothing</a> about it. </p>
<h2>The justice system against Lula?</h2>
<p>He was not able to escape <a href="https://theconversation.com/how-the-massive-petrobras-corruption-scandal-is-upending-brazilian-politics-43939">Operation Car Wash</a>, a massive corruption investigation lead by the popular judge <a href="https://www.nytimes.com/2017/08/25/world/americas/judge-sergio-moro-brazil-anti-corruption.html">Sérgio Moro</a>. Indeed, it was Moro who in 2017 convicted Lula of graft for receiving a free penthouse apartment from a construction company, OAS, which had benefited from <a href="http://www.bbc.com/news/business-39194395">illegal government contracts during Lula’s administration</a>.</p>
<p>The Jan. 24 appeals court ruling upheld that conviction unanimously. A three-judge panel found the former president guilty <a href="https://theintercept.com/2018/01/24/lula-brazil-corruption-conviction-car-wash/">on several grounds</a>, and bolstered some charges largely unsubstantiated in the original ruling. </p>
<p>Mainly, they found that early in his administration Lula had used his political power to influence the board and leadership of Petrobras, Brazil’s state oil company. In 2003 and 2004, Petrobras went on to make <a href="https://www.vox.com/2016/3/18/11260924/petrobras-brazil">numerous illegal infrastructure development</a> contracts, with OAS and other firms. </p>
<p>The appellate judges determined that there was no need to prove how, specifically, Lula helped OAS, since it’s reasonable to believe that a sitting president would have known about and endorsed his subordinates’ illegal contracts scheme. </p>
<p>The judges also agreed that Lula and his wife, Marisa Letícia Lula da Silva, had shown suspicious interest in an apartment owned by OAS. Though they never purchased it or even lived there, the couple suggested specific renovations to the space. Those projects were completed. </p>
<p>Essentially, Brazilian courts have now twice found Lula guilty of corrupt dealings with OAS beyond any reasonable doubt. In legal terms, though, the shaky evidence shows only that something fishy was going on with that OAS apartment. For many Brazilians, "fishy” seems insufficient to disqualify a presidential front-runner. </p>
<p>The decision looks more dubious considering that Brazil’s current president, Michel Temer, dodged criminal prosecution for <a href="https://www.nytimes.com/2017/10/25/world/americas/brazil-michel-temer-corruption.html">a September 2017 indictment</a> after his chief of staff was caught leaving a business lunch <a href="http://en.mercopress.com/2017/05/24/temer-running-out-of-special-aides-to-corruption-arrests-one-even-returned-a-bag-with-hush-money">with a briefcase full of hush money</a> allegedly meant for Temer. </p>
<h2>Brazil’s flawed judiciary</h2>
<p>That still doesn’t prove that Lula’s prosecution is political. Frankly, the Brazilian judiciary is prone to inconsistencies and to ignoring the due process of law. </p>
<p>Brazil has the world’s <a href="http://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All">third highest prison population</a>, with some 660,000 incarcerated people. Around <a href="http://www.prisonstudies.org/country/brazil">35 percent of them have not yet been tried</a>, and the vast majority of prisoners are poor, young black men facing lengthy sentences for charges that <a href="http://www.aljazeera.com/indepth/opinion/2017/05/justice-poor-brazil-170511102159339.html">white defendants almost never see</a>.</p>
<p>In other words, there is a punitive streak among Brazilian prosecutors and judges. Historically, though, <a href="http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1806-64452007000100003&lng=en&nrm=iso&tlng=en">the judiciary has gone easy</a> on rich defendants with the best defense attorneys money could buy. </p>
<p>In a way, what Lula’s verdict shows is that the judiciary’s instinct to punish – normally reserved for pickpocketers and low-level drug dealers – has now been unleashed on some of Brazil’s most powerful people. The contrast with Temer’s lack of prosecution is another example of unequal treatment under the law. </p>
<h2>Moralizing judges</h2>
<p>When the Mensalão scandal exposed Brazil’s pervasive corruption, many citizens came to see the judiciary as the last democratic bastion in a mostly rotten republic. In doing so, they ignored its many flaws. </p>
<p>Worse still, it seems that judges like Moro and others, too, believe the idea that the criminal justice system alone can clean up politics. </p>
<p>And since the wheels of <a href="https://www.npr.org/sections/parallels/2014/11/05/359830235/brazil-the-land-of-many-lawyers-and-very-slow-justice">justice turn slowly in Brazil</a> – where cases can take up to 12 years to conclude – judges as high as the Supreme Court have found ad hoc, unprecedented ways to rebuke politicians they believe to be corrupt. </p>
<p>They have <a href="https://www.reuters.com/article/us-brazil-politics-lula/brazil-supreme-court-justice-upholds-barring-of-lula-from-post-idUSKCN0WO2MH">barred ministers</a> <a href="https://www.telesurtv.net/english/news/Brazil-New-Labor-Minister-Banned-For-Not-Paying-Chauffeurs-20180110-0035.html">from taking office</a>, <a href="https://www.theguardian.com/world/2016/may/05/speaker-of-brazils-lower-house-eduardo-cunha-suspended">suspended congressmen</a>, <a href="http://www.bbc.com/news/world-latin-america-36211526">imprisoned senators</a> and <a href="http://www1.folha.uol.com.br/internacional/en/brazil/2017/09/1922148-brazils-supreme-court-suspends-aecio-neves-from-senate-and-orders-house-arrest-at-night.shtml">even put legislators under house arrest</a> – often without clear constitutional grounds or legal precedent for doing so. At bottom, the work of a judge is to apply established law or, when creating a new precedent, to do so with clear new rules.</p>
<p>These judicial interventions have unduly influenced Brazilian politics. So far, the Workers’ Party has seen more prosecution than other major parties, though <a href="https://www.theguardian.com/world/2017/mar/15/brazil-corruption-investigation-list-politicians-michel-temer">that seems to be changing</a>.</p>
<p>All of this has increased the popular perception that Brazil’s court system is just as politicized as politics itself. As a result, confidence in the judiciary has been <a href="https://portal.fgv.br/en/news/2017-confidence-brazilian-justice-index-public-confidence-institutions-drops">dropping steadily for years</a>. </p>
<p>Lula’s lost appeal is the perfect distillation of what ails the Brazilian legal system. It is one part judicial activism in the name of anti-corruption, one part judicial disregard for legal precedents and due process. With the good intention of “fixing” politics, Brazil’s judges may be breaking the rule of law. </p>
<p>What they are not doing, I would argue, is staging a partisan judicial coup against the Workers’ Party.</p>
<p>Ultimately, Lula’s case will be again appealed and eventually decided by a higher court. That process could take many months. In the meantime, an electoral court must determine whether to let Lula run for president in October. </p>
<p>To do so, Brazilian judges will again find themselves deciding a profoundly political question: Would Lula’s candidacy strengthen or <a href="https://www.nytimes.com/2018/01/24/world/americas/brazil-presidential-electionluiz-inacio-lula-da-silva.html">subvert Brazilian democracy</a>?</p><img src="https://counter.theconversation.com/content/90794/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rubens Glezer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An appeals court ruling against popular Brazilian ex-president Lula has hotly divided Brazil. A legal scholar argues that this is a case of activist judges taking their anti-graft crusade too far.Rubens Glezer, Constitutional Law Professor, Fundação Getulio VargasLicensed as Creative Commons – attribution, no derivatives.