Mendonça points out unconstitutionality in resolution that gives “superpowers” ​​to the TSE

Minister André Mendonça, of the Federal Supreme Court (STF), was the only one of the ten ministers to disagree with Minister Edson Fachin in the process that judged the merits of an action by the former attorney general of the Republic, Augusto Aras, who challenged a resolution which gave “superpowers” ​​to the Superior Electoral Court (TSE).

The STF concluded this Monday (18) the trial that ended in 9 to 1 to reject Aras’ appeal. The resolution allowed Minister Alexandre de Moraes, who presides over the TSE, to determine the removal of content from social networks unilaterally without being provoked by the Public Ministry during last year’s elections and which will be used in the 2024 election.

Mendonça claimed that the TSE, although it has the best of intentions, does not have the “prerogative to innovate in the legal system” even with the aim of “perfecting mechanisms for controlling unwanted abuses of the right to expression and the dissemination of misinformation”.

“Obviously, there is no discussion or divergence from the essential need to combat misinformation, the proliferation of so-called ‘fake news’, or the absolute fundamentality of such combat to guarantee the health of the electoral process, and, to that extent, to preserve the democratic regime itself. At this point, there is uniformity of purpose. The divergence is limited to form, and it is worth remembering, at this point, what was stated by my predecessor at the Federal Supreme Court, the eminent Minister Marco Aurélio: ‘in law, the means justify the ends, but the ends do not justify the means’” , wrote André Mendonça in the decision.

The judge stated that the Constitution is clear in defining a norm, “even if implicit”, that reflects legal certainty in relation to changes in the TSE’s jurisprudence. “Thus, the decisions of the Superior Electoral Court that, during the course of the electoral election (or shortly after its conclusion), imply a change in jurisprudence (and thus have repercussions on legal security), do not have immediate applicability to the specific case and will only have effectiveness over other cases in the subsequent electoral election”, he added in reference to the rule applied in last year’s election and questioned by Augusto Aras.

Minister Edson Fachin, rapporteur of the action, voted against the former prosecutor’s arguments, an understanding followed by other ministers. According to him, the right to freedom of expression “can be compromised, specifically, in the case in which it is used to erode trust and the legitimacy of political-electoral fairness. This is a specific concession, analyzed in light of the concrete violation of electoral rules and not prior and previous censorship,” he wrote.

He states that freedom of expression cannot be used to attack democracy, and that the resolution seeks to “curb the use of virtual persona, concealment through social networks, so that this locus serves to disseminate false information that can impact elections and the integrity of the electoral process.”

At the time of the challenge, Aras also presented a request for an injunction to suspend the resolution, but the majority of ministers maintained its validity.