Analysis: Brazil’s Supreme Court is setting precedents potentially dangerous to democracy

RIO DE JANEIRO, BRAZIL – The Federal Supreme Court (STF) rulings have helped curb the spread of fake news and attacks on democracy on social networks, and culminated in the request for Ricardo Salles’ resignation, because of his anti-environmental agenda as Minister of Environment, writes Matheus Teixeira in Folha newspaper’s edition today.

On the other hand, he points out, specialists fear that actions taken by the Supreme Court outside the usual rules could create a dangerous precedent for democracy. One of the risks is the consequences that clashes with the office of the Federal Prosecutor General (PGR) may trigger.

Recently,according to Teixeira, the Court authorized a police operation against Minister Salles without first hearing the PGR, and also bypassed that body entirely when dismissing the investigation of antidemocratic rallies, despite case law determining that the PGR office should be heard in this type of decision.

Many recognize the need for the STF to counter the excesses of Bolsonarism, but say that sidestepping due process, regardless of the intended purpose, could lead to the creation of dangerous precedents that, in the future, could be used arbitrarily by the Judiciary in general.

In addition to judicial rulings, the body has also begun an out-of-court initiative to impede some of the president’s proposed institutional changes.

Such is the case of the implementation of printed ballots. The head of the Executive branch has campaigned for the measure and has the support of Chamber president Arthur Lira (PP-AL), who has great influence over his peers in the legislature.

However, some STF Justices have organized, alongside 11 political parties, a campaign against the change from electronic ballot boxes, thus putting in check the legislative majority Bolsonaro thought he had on the question.

One of the first indications that the STF was inclined to create a kind of crisis case law that encroaches on established rules, in order to counter Bolsonaro, occurred in March 2019, with the opening of the fake news inquiry, Teixeira continues.

The investigation was opened ex officio, that is, without a petition from the PGR Office, which, under Brazil’s system of prosecutions, is always responsible for bringing criminal charges.

STF Chief Justice Dias Toffoli’s individual decision caused a stir because, according to the Constitution, the judiciary can only act if prompted by prosecutors, and the body in charge of calling for the opening of a criminal investigation at the STF should always be the PGR.

Moreover, the appointment by Toffoli of Justice Alexandre de Moraes as rapporteur for the case was also criticized, because the standard practice for investigations started at the STF level is to choose the rapporteur by lot.

Initially, the investigation was the target of criticism within the Court, with some members resisting approving the measure. Evidence of this is that Toffoli did not immediately refer his individual decision to the full court for ratification.

As time went by, the growing spread of fake news and threats to Justices by Bolsonarist militants changed the Justices’ position on the question. After more than a year of delay, the full court upheld the decision to open the fake news inquiry by a 10-1 vote (Justice Marco Aurélio dissented).

This case also made it clear how the STF serves as an example and influence on the decisions of other branches of the judiciary. This is because, after the Justices confirmed the possibility of opening an ex officio investigation, the STJ (Superior Court of Justice), Brazil’s second highest court, did likewise.

After the leak of messages between Lava Jato prosecutors containing conversations that raised the suspicion that the task force tried to investigate STJ judges without judicial authorization, the Chief Judge of that Court, Humberto Martins, also ordered the opening of an investigation, bypassing the PGR.

Soon thereafter, however, STF Justice Rosa Weber suspended the investigation until the First Panel of the Supreme Court could decide on the validity of the investigation; the panel has no set date to hear the case.

Another strategy used by the STF that could set a dangerous precedent concerns the recurrent use of the National Security Law, a measure enacted by the military dictatorship in 1983, now heavily criticized as authoritarian.

After Justice Moraes began using the law to authorize police operations against Bolsonaro’s allies, several cases of police investigations against critics of the government, based on the same law, began to appear.

Many of the investigations were launched by order of Justice Minister André Mendonça, who is now about to fill retiring Justice Marco Aurélio’s seat on the Supreme Court.

In the case of the STF, the National Security Law also served as grounds for the arrest of Federal deputy Daniel Silveira (PSL-RJ), ordered by Moraes and later approved by the full court.

The deputy was arrested for having attacked and threatened STF members in a video. However, in this case, the use of a video as justification in flagrante delicto (the only statutory grounds for arresting a member of Congress) has been criticized.

USP Law School professor Rafael Mafei compares the relationship between the Planalto Palace and the STF to a soccer match in which tempers flare and fouls become increasingly harsher. “In these cases, there are only two possible outcomes: either the opposing party is intimidated and retreats, or it escalates into a generalized clash and the game stops.”

“Today it’s very difficult to say what the outcome will be, whether it will be positive or negative in the end. It largely depends on who wins the 2022 elections,” the professor says.

Mafei says that the Justices recognize that some of the Court’s recent rulings stray from its established case law precedents.

“I think it is very clear that the Supreme Court sees that it must implement measures that the Justices themselves know to be unorthodox, especially in relation to the PGR, because the Prosecutor’s Office was not designed by the Constitution to be ignored or sidelined.”

In Mafei’s opinion, the greatest risk would be Bolsonaro’s reelection and the “increase of players aligned to the current government occupying the judicial system.”

“The problem is that these players may in the future use this exceptional case law as valid precedent for their own practices: if it was applicable before, why shouldn’t it be applicable now?” he says.

Mafei also states that the risk of adopting unorthodox decisions is much greater for the Judiciary than for the Executive branch. “Bolsonaro’s legitimacy comes from the elections, and the STF’s comes mainly from people’s certainty that judges are technically very well-trained people and apply the law rigorously.”

“The reputational burden is greater for the Supreme Court because its authority stems from the perception that it is a technical and rigorous body, while for Bolsonaro the weight of behaving outside the limits of the Constitution is much lower,” he analyzes.

Diego Werneck Arguelhes, a constitutional law professor at INSPER, says it is important for unorthodox [individual] Supreme Court decisions to be referred to the full court.

“Irrespective of the rulings’ outcome, I think it is per se dangerous that they are left hanging in the wind, along with the questions: Is this the position of one member, or the position of the Court henceforth? What are the limits of this decision, how does the STF justify it?”

Arguelhes also credits the repeated inaction of PGR head Augusto Aras as a reason for the STF having adopted previously uncommon measures.

In his view, the situation should prompt a deeper debate: “When there are problems of this kind, how do we solve them: By changing the rules or by the Supreme Court interpreting the current rules in a whole new way?”

“We should not be happy with the solutions the Court is creating now; this is an opportunity to consider whether or not they work for the future from an institutional standpoint,” Arguelhes says.

However, he also speaks about the extent of the risk that Bolsonaro represents to the country’s institutions and reflects: “Democracy can live with judicial decisions that I consider mistaken, but it cannot live with players who directly attack institutional foundations and public trust.”

When questioned by the reporter, the STF said it “does not comment on cases currently under consideration by the Court.”

Source: Matheus Teixeira, in Folha de S. Paulo (July 11)