Transitional Justice Symposium: Tracing the Experience of Brazilian Transitional Justice and Its Discontents

[Tatiana Waisberg is an international  Law  lecturer, researcher and author of books and articles focusing on International Law, Transitional Justice, Latin America Studies, Terrorism and Human Rights, and a ZviMeitar Center for Legal Advanced Studies Research Fellow (20050-8).]

This symposium offers an excellent opportunity to reflect on the transitional justice phenomenology over the two decades that followed the launch of Transitional Justice by Professor Ruti Teitel. The book unveiled a groundbreaking insight into a very distinctive concept of justice associated with extraordinary and radical legal and political shifts towards democratization. The success of transitional justice responses to the predecessor military regime and its past atrocities in the newborn democracies of East and Central Europe, South Africa, and South America could not be forecasted at the time. How each society would continue to advance towards the consolidation of a democratic rule of law, and if there would be setbacks or violent retaliation to legal and political responses to evil past in each context was still unclear. Over the years, the rise of transitional justice responses associated with reparation and retribution in conflict management relegated the legacy of South America transitional justice jurisprudence to a marginal place in the big picture.

The transitional justice debate in Brazil occupies an even smaller place considered an exception in its own region for the lack of any criminal transitional justice response to condemn the dictatorship atrocities. Yet, Brazil is nowadays recognized as one of the biggest democracies in the global south, even though ruled by the populist right. In this symposium participation, I would like to share my thoughts to explore the ongoing nature of Brazil’s transitional justice jurisprudence. First, pointing out contradictory narratives regarding the dictatorship legacy in Brazilian politics. Second, I would propose to turn the debate to assess some possible limits of the criminal transitional justice to advance the end of impunity. Further, the problem of corruption in domestic politics undermines not only the democratic rule of law in Brazil but seems to be a common feature that threatens the democratic institutions in other South America countries as well as in South Africa’s post-transitional experience.

By exploring the phenomenology of transitional justice in Brazil over the years, it is interesting to note that the origin of the concept of transitional justice might be traced first outside the corrective or distributive justice paradigm. The 1979 Amnesty Law heralded the end of official political persecution, opening the doors for the Brazilian left to return to participate in the democratization process. It paved the way for the rise of the first civil and social movements during the 80s, enabling a more open legal landscape to promote the debate in favor of a new constitution.  Officially, the military regime that ruled Brazil since 1964, insisted it was not exactly a transition from dictatorship, and that the two-party system was similar to the United States’ bipartisan system, in order to prevent its characterization as part of the communist model of political repression. In practice, the political and legal changes follow the pattern of other examples that highlight the transitional justice phenomenology. In other words, this was a radical political and legal transition, starting a long process of transformative continuum long before the concept that was coined by Professor Teitel in Transitional Justice started to be part of the academic debate in Brazil. While the constitutional and administrative transitional justice mechanisms were already in motion, other more celebrated modalities, such as criminal and reparatory transitional justice features were totally absent.  Transitional constitutionalism, a starting point to the political transition continued to transform the legal order as a result of the gradual ratification of international and regional human rights conventions. On one hand, the need to advance human rights instruments was understood as an imperative to advance in the democratization process to fulfill the 1988 Federal Constitution promises. On the other hand, the state later recognized the need to pay reparations and establish a Truth Commission, but when these measures were put in place it was already part of a more specific agenda, dislocated and politicized due to the contrasting ways Brazilians perceive their authoritarian past.  

From the Interamerican Court of Human Rights standpoint, Brazil has failed to respond adequately to its evil past. Both Araguaia (2010) and Herzog (2018) condemn the Brazilian state for not pursuing criminal persecution to condemn torture and extrajudicial executions, including the practice of disappearances. While the state recognizes the need to repair and find the remaining of former political opponents, the Brazilian Supreme Court rejected all claims against the validity of its 1979 Amnesty Law.

 In which way this consistent refusal to adopt a retributive response to atrocities attributed to the previous military regime may overshadow the success of the Brazilian transition to the democratic rule of law? To which extent is it contradictory that the same legal statute that initiated the political and legal transition turned into a major constraint to advance in the liberalizing direction? As Professor Teitel suggests, the conception of justice that emerges in extraordinary times is contextualized and partial. Law is not a mere byproduct of change, but it also structures the transition when what is just is contingent and law operates to enable also the emergence of political opposition within the democratic order. This paradox explains why the role performed by transitional justice responses differs according to very distinctive societal contexts with contrasting outcomes. Yet, the criminal transitional justice emblematic target to end impunity seems to be a far more complex issue to be implemented, especially in third world states. The risk of selectivity in punishment regarding political persecutions overshadows other obstacles not directly associated with the previous military rule.  Widespread corruption scandals continue to threaten the democratic institutions not only Brazil, but also other democracies, such as Argentina, Chile, and South Africa, that have undergone radical legal and political shifts towards a democratic rule of law in the post cold war era. In Brazil, the fact the rise of left-wing governments, led by the Labor party during the Lula and Dilma Rousself presidency was shaken by two major corruption schemes, culminated in the polarization of the ways Brazilians look at their undemocratic past.   Moreover, the impeachment of former President Dilma Roussef in 2016 brought back the only party that survived the transition from the military regime to power again, under the leadership of former President Michel Temer. 

The impeachment process paved the way for the revival of an idealized and nostalgic image of the military rule as a part of order and stability. President Bolsonaro, then a member of the Congress, during the impeachment voting in 2016 even praised former general Ustra, well known for its torture practices during the dictatorship, claiming that he was a national hero. Among the heated impeachment debate, Brazilian society was already too much divided to give too much attention to apology to torture perpetrated by the predecessor regime. The impeachment took place after the Brazilian society embraced since 2013 almost routine protests, bringing masses of Brazilians to the streets to show their rage against local, regional and federal governments. By the election of Bolsonaro in 2018, the judiciary was not only a center for disagreement but also some of its members, as for example former federal judge Sergio Moro, the head of the CarWash investigations turned into a symbol in the so-called war against corruption, joining later the Bolsonaro government as a Justice and Public Security minister. During election year, the political atmosphere was engulfed in a somber mode following a number of violent events, including a mysterious plane accident that killed the Supreme Court justice in charge of the CarWash trial, the political assassination of Marielle Franco, a Rio de Janeiro city councilor and human rights defender, and the stabbing of Bolsonaro in the middle of a rally. The fear that the military regime could be back seemed to be a minor issue for most Brazilians obsessed with the blaming game between left and right. Even though the populist right embodied by Bolsonaro leadership enjoyed the support of former military elite, including the vice president Mourao, his electoral support relied on a broader base, especially the evangelical base. But his election could not be envisaged without the previous corruption scandals, identified by a substantial part of the Brazilian population as a legacy of the left-wing governments.  Despite evident similarities to the image of Brazilian authoritarian past, the setbacks to the democratic rule of law seems to be more symbolic than concrete.  

While the Brazilian society’s perception of the former dictatorship remains divided, it’s not clear whether this may be attributed to the failure of historic and criminal transitional justice in this societal context. Yet, this singular experience highlights a less visible role performed by constitutional and administrative law in the long term process. Ongoing democratization continues to challenge views on justice, but its transition from dictatorship towards a liberal rule of law constitutes itself a sui generis paradigm within transitional justice jurisprudence. The Brazilian post-transitional experience, despite its exceptional instance on the region regarding the necessity to promote criminal transitional justice still offers an interesting insight on the tortuous road towards democracy in this western side of the global south.