CNJ punished judges for lighter speeches than Barroso’s against Bolsonaro

Minister Luís Roberto Barroso’s statements that he has already faced and defeated “Bolsonarism” could be punished by the National Council of Justice (CNJ) if the body, which oversees the conduct of magistrates in the country, also judged members of the Federal Supreme Court and applied the same understanding that has been adopted against ordinary judges.

Survey made by People’s Gazette in the CNJ archives shows that, due to milder political manifestations, several magistrates have been prosecuted, removed from office and silenced on social networks. There were at least seven such decisions since October last year.

The most notorious case occurred in February of this year, when the agency dismissed federal judge Marcelo Bretas, who was conducting Lava Jato processes in Rio de Janeiro. One of the accusations of the Order of Lawyers of Brazil (OAB) is that he had participated, in 2020, in a religious event alongside the then president Jair Bolsonaro (PL) and the then mayor of Rio de Janeiro, Marcelo Crivella. Evangelical, Bretas went up on the platform, but did not speak.

In January, the national justice inspector, Luis Felipe Salomão, filed a disciplinary complaint against Amazonas judge Luis Carlos Valois and suspended his social media accounts. In posts, he had said that Lava Jato is “inseparable from the rise of the right and political violence”. He also posted that former president Dilma Rousseff did not commit a crime of responsibility, concluding that the impeachment had no “legal assumption”.

In December of last year, Salomão blocked the networks of the federal judge of Brasília Maria do Carmo Cardoso for having praised the demonstrations that took place in front of the barracks after the electoral victory of President Luiz Inácio Lula da Silva (PT). “We’ll see the World Cup later, 99% of Brazil’s players live in Europe, the coach is from the PT and Globolixo is from the left, our real team is in front of the barracks”, wrote the magistrate.

In November 2022, the CNJ applied the penalty of censorship to Paraná judge Regiane Tonet dos Santos, for posts made in 2017 and 2018, with criticism of the STF, the PT president, Gleisi Hoffmann, and the former president of the party Jose Dirceu. “He had a duty to maintain impartiality. When he manifests himself against a political party that was part of that year’s election, he breaks impartiality. And before society, she is an opinion maker”, said councilor Salise Sanchotene, noting that Santos was also an electoral judge.

In the same month, the CNJ opened disciplinary proceedings against labor judge Luiz Alberto de Vargas for having posted, in 2021, “fire on the Nazis” by publishing a photo of Bolsonaro, also called by him “genocidal”. “I think that the magistrate exceeded the limits of his freedom of expression to violate the provisions of the Code of Ethics”, said Salomão.

In October, Salomão suspended the accounts of the judge of Rio de Janeiro, Marcelo Buhatem, for having posted, on the networks, that “Lula is a guest of honor of the Comando Vermelho” – a “fake news”, according to the CNJ. In the same session, he also banned Amazon judge Rosália Sarmento from Twitter for publishing dozens of messages declaring and asking for a vote for Lula and criticizing Bolsonaro.

“The magistrate’s individual conduct with party-political content ruins society’s confidence in relation to the credibility, legitimacy and respectability of the Justice’s performance, affecting the very Rule of Law that the Constitution aims to safeguard”, argued Salomão.

Constitution says judges cannot engage in party-political activities

In all these decisions, the CNJ cited several norms that impede the political-partisan performance of judges. He therefore understood that verbal manifestations at public events or on social networks characterize the offense.

Article 95 of the 1988 Constitution states that judges are prohibited from engaging in party-political activity. The Code of Ethics for the Judiciary, approved by the CNJ itself in 2008, says that “judicial independence implies that the magistrate is forbidden to participate in party-political activity”. Another CNJ resolution, from 2019, prohibits judges from, on social networks, “issue an opinion that demonstrates performance in party-political activity or manifest in public support or criticism of a candidate, political leaders or political parties”.

It was based on this last norm that the CNJ intensified cases against judges who publicly expressed political positions.

Jurists disagree on the possibility of impeachment of Barroso

Like Barroso, several other STF ministers have already criticized parties and politicians, but have never been inspected by the CNJ. This is because they are not subject to the body, as they can judge their actions. In theory, it would be up to the ministers themselves to supervise each other’s conduct, following what the legislation says, but this never happened in the Court.

Another more drastic measure, already announced by parliamentarians allied with Bolsonaro, is the presentation, in the Senate, of an impeachment request against Barroso. The basis is Article 39 of the Impeachment Law, which lists as crimes under the responsibility of STF ministers “exercise party-political activity” and “act in a manner incompatible with the honor, dignity and decorum of their duties”.

Some lawyers consulted by the report believe that would not be the case.

André Marsigilia, a specialist in freedom of expression, understands that the Constitution and other rules prohibit formal activities within a party or political association, but not verbal manifestations in favor or against a politician, movement or ideology. “Because this is protected by the Constitution for magistrates or any public agent, for the freedom of expression guaranteed by the Constitution”, he says, in reference to the fundamental right of article 5, item IV, according to which “the expression of thought is free”.

Therefore, for him, Barroso has the right to demonstrate against Bolsonaro. As he occupies a position of judge, however, the lawyer considers that the minister, because of demonstrations like this, could not judge the former president, nor people connected to him.

In any case, he says he disagrees with the understanding that prevails today in the CNJ, which punishes judges for their political opinions. “I disagree, but for the CNJ, if he is consistent, Barroso’s attitude would be punishable. It is not my vision, but it has been that of the advisors.”

Law professor Janaina Paschoal also considers that this is not a case of impeachment.

“When I graduated, there was an absolute ban on any kind of manifestation by the magistrates. I’m from that more conservative era. However, over time, due to the profile of STF ministers, this reality has changed. I understand the indignation with the minister’s speech, I think he should have avoided it, but I don’t see enough elements for impeachment. What bothers me is not the minister saying what he feels and not being punished. What bothers me is knowing that judges on the right have been compulsorily retired for expressing their opinions. I stand for freedom of expression and demonstration, including for magistrates, right and left,” he said.

On the other hand, former judge Ludmila Lins Grilo, who was permanently removed from office for criticizing the STF’s fake news inquiry, understands that Barroso’s statement violates the Constitution and the Impeachment Law.

“By saying that ‘we defeated censorship, torture and Bolsonarism to allow democracy and the free manifestation of all people’, Barroso is associating a party-political preference (which he called “Bolsonarism”) to iniquities such as the censorship and torture, which means exercising a derogatory judgment on the merits of a party-political leadership. This constitutes a political-party manifestation prohibited by the Constitution to magistrates”, he argues.

“In the case of a member of the STF, this also means, in addition to a functional violation, a crime of responsibility, in the form of Law 1.079/50, to be judged by the Senate, the consequence of which is the loss of office (impeachment)”, adds the former judge.

The president of the Senate, Rodrigo Pacheco, who is responsible for opening requests for the impeachment of ministers, said that Barroso’s speech “was very inappropriate, inopportune and unfortunate” and that he should ask for a retraction. Anyway, he didn’t talk about impeachment.

“The political arena is resolved with political manifestations and with the political action of political subjects. A minister of the Federal Supreme Court, evidently, must stick to his constitutional fulfillment of judging what is demanded. The minister’s presence, at an event of a political nature, with a speech of a political nature, is something that I consider unfortunate, inappropriate and inopportune. And what I hope is that there is, on the part of Minister Luís Roberto Barroso, a reflection in relation to this and eventually a retraction”.

Other analysts expressed themselves on the networks considering that, at the very least, Barroso’s phrase is inappropriate.

On Twitter, judge Marcelo Bretas said that a football competition in which a judge said “we defeated Corinthians” would not be fair.

Gustavo de Almeida Ribeiro, federal public defender and who advocates for several of those arrested for the invasion of the headquarters of the Powers on January 8 next to the STF, also made a parallel with the world of football. “’We defeated’. Is he a player or a fan of the team that won? And then judge the opponents who participated in the acts on the 08/01th?

Adriano Soares da Costa, lawyer and author of the book “Institutions of Electoral Law”, stated that “an overtly partisan and political Federal Supreme Court is the destruction of the Democratic State of Law and of democracy itself”. “The political bias boldly declared by a Minister of the Constitutional Court has never been so evident. Worse: expressing that the STF (‘us’) defeated the President of the Republic, candidate for re-election.”

STF and Barroso try to explain statement

After the negative repercussions of Barroso’s statements, the STF released, this Thursday morning, a note stating that the minister did not refer to the performance of any institution. “As is clearly extracted from the context of Minister Barroso’s speech, the phrase ‘We defeat the dictatorship and Bolsonarism’ referred to the popular vote and not to the performance of any institution”, says the STF note.

In fact, the exact phrase of the minister, during the UNE Congress, in Brasilia, was: “We defeated censorship, we defeated torture, we defeated Bolsonarism, to allow democracy and the free manifestation of all people”. At this time, he did not speak of a “popular vote”.

In the afternoon, Barroso himself officially manifested. He stated, in a new note, that when using the expression “we defeat Bolsonarism”, he was referring to “the coup-mongering and violent extremism that manifested itself on January 8 and that corresponds to a minority”.

“I never intended to offend the former President’s 58 million voters or to criticize a conservative and democratic worldview, which is perfectly legitimate. I have the utmost respect for all voters and for all Democratic politicians, whether they are conservative, liberal or progressive,” said the magistrate.