Transitional Justice Symposium: Tracing the

Experience of Brazilian Transitional Justice and Its

Discontents
opiniojuris.org/2020/09/16/transitional-justice-symposium-tracing-the-experience-of-brazilian-transitional-justice-
and-its-discontents/

September 16, 2020

[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

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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

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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

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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.

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