Despite Barroso’s speech, jurists differ on impeachment

Like Luís Roberto Barroso, several other ministers of the Federal Supreme Court (STF) have already criticized parties and politicians, but have never been supervised by the National Council of Justice (CNJ). Barroso said this Wednesday night (12) that he faced and defeated “Bolsonarism”. The statement was given after he was booed by a group of students at the opening of the 59th Congress of the National Union of Students (UNE).

This is because the STF ministers are not subject to the CNJ, 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 of an impeachment request against Barroso in the Senate. The basis is Article 39 of the Impeachment Law, which lists as crimes under the responsibility of STF justices “exercise party-political activity” and “act in a manner incompatible with the honor, dignity and decorum of their functions”.

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,” she said.

On the other hand, retired 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 retired 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 on 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 “Electoral Law Institutions”, stated that “an unapologetically 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 (‘we’) defeated the President of the Republic, candidate for re-election”.