STF normalizes messages via the press and loses fear of appearing biased

Ministers of the Federal Supreme Court (STF) are normalizing the process of sending messages via the press that interfere in the political game. Anonymously or in interviews, some judges have left aside the modesty of indicating partiality, showing how they should vote and even threatening anyone who opposes their decisions.

Anonymous messages from ministers have become commonplace in recent months in major press outlets. In February, an unidentified minister said, according to a columnist, that if former president Jair Bolsonaro said “woe” about the STF at the February 25 demonstration, he would be arrested.

The same anonymous message resource was used at the end of last year during the discussion on the vote on the PEC against monocratic decisions, approved in November 2023 in the Senate. The magistrate in question allegedly sent a WhatsApp message to a journalist stating: “The honeymoon with the government is over.”

The Constitution prohibits anonymity, however, in journalism, the possibility of source secrecy is recognized. The main objective of this exception is to protect sources of important information against potential retaliation, in the name of the public interest; but, in the cases in question, the secrecy of the source has often served the interests of the ministers themselves.

In an unusual trend in democracies, magistrates created a direct line with famous figures from the television and written press in Brazil. On Monday (25), this hotline surprisingly brought good news for former president Jair Bolsonaro: a columnist from a major newspaper published that minister Alexandre de Moraes “informed his peers in the Supreme Court that he doesn’t care for Jair Bolsonaro’s two-night ‘asylum’ at the Hungarian embassy.”

The Code of Ethics for the Judiciary is explicit regarding the magistrate’s duty to preserve secrecy not only regarding their own votes, but also regarding the votes of other members of the collegial body. “Judges who are members of collegiate bodies are required to preserve the secrecy of votes that have not yet been pronounced and of those whose content they become aware of, eventually, before the trial”, states article 28 of the document.

For Alessandro Chiarottino, PhD in Constitutional Law from USP, the new trend is a subversion of the Code of Ethics for the Judiciary, which imposes, among other things, the duty of impartiality, transparency, professional secrecy, prudence and decorum in the exercise of the role of judge. .

“It is not up to the STF minister to contact journalists, whether identifying themselves or not, to spread news to the press with the intention of threatening anyone. The judge, whether he is the STF minister or the judge of first instance , must appear in the records. Period”, he states.

Regarding the case in which an unidentified minister threatened Bolsonaro if he said something against the STF, Chiarottino remembers that there is an even more serious element than anonymity: the content of the message. “How can a STF minister say a priori What guy, beltrano, can’t say such a thing in a public demonstration? Are we sacrificing the complete end of freedom of expression in Brazil?” he asks. “These threats, not only in the way they are made, but also in their content, which is a content limiting freedom of expression, are absolutely unacceptable in a State right.”

Ministers trivialize appearances on TV and even anticipate votes in interviews

In interviews with newspapers and appearances on TV programs, ministers have also left aside the discretion inherent to their role, going so far as to anticipate votes.

There are already, for example, two ministers who, in interviews, made clear their position on a possible amnesty trial for January 8 prisoners or Bolsonaro. “Amnesty is an institute that comes to give a humanitarian character to certain situations, in which penalties are considered undue, inhumane, or have already ceased to be law. No, it does not seem to be the case”, stated Cármen Lúcia in an interview on the day 13 to Globo News.

Three days later, his colleague Gilmar Mendes told the far-left outlet Brazil 247 that the amnesty in relation to the defendants of January 8 is “unthinkable” and also made clear his vote in a possible trial of Bolsonaro: for him, testimonies from former commanders of the Armed Forces reveal “coup intentions” of the former president after the 2022 elections.

“The entire Brazilian society that shares the feeling of democracy expected and expects accountability not only from the material authors, which is already happening – I think that in this sense Brazilian institutions have given even more effective responses than, for example, the Americans to the 6th of January of the previous year – but it also has the answer, above all, for those who conceived this whole plot and, obviously, it makes no sense whatsoever from a legal perspective, from a political perspective, to talk about amnesty. This has to be clearly repudiated”, said the minister. “It is unthinkable to talk about amnesty for these crimes,” he added.

Rodrigo Marinho, master in Constitutional Law from the University of Fortaleza (Unifor), recalls that the Organic Law of the National Judiciary, in its article 36, prohibits the judge from “expressing, through any means of communication, an opinion on proceedings pending trial, his or of another, or derogatory judgment on orders, votes or sentences, from judicial bodies”, and says that Gilmar’s speech could justify his impeachment.

“It is possible for him to lose his mandate, because he would be pre-judging the case outside of the records. And there is an unwritten principle in Law, which says: ‘what is not in the records is not in the world'”, says Marinho. “The judge must strive for discretion. The pre-judgment brought to light in this case is absurd. It should not happen. In reality, several of the things that happen in the Federal Supreme Court should not happen.”

In a period of about a month, Gilmar gave interviews to five different media outlets – in addition to Brazil 247The CNN, Globo News, Brazil Agency It is Capital Charter. Since 2016, the minister has participated three times in the “Roda Viva” program, from TV Culturawho usually repeats the interviewees a little.

The verbiage, in some cases, leads the judge to spill the beans. After Gilmar highlighted the coup’s nature on January 8, social media users retrieved an interview with the minister from a year earlier, in which he contradicted his current opinion. “Certainly there was not a very clear way, one cannot say [que houve] a coup attempt, there was no one who wanted to take power. They occupied the Federal Supreme Court, occupied the Planalto Palace and occupied part of the Legislature. Then, the police forces acted and these Palaces were emptied, but in any case they caused immense turmoil as we are seeing and are discussing even abroad”, stated the minister at the beginning of 2023 to RTPfrom Portugal.

The popular reaction pointing out the minister’s contradiction is something similar to what politicians usually suffer, especially during election times, when they contradict their old statements and are unmasked. For Marinho, this is a normal consequence of the politicization of Supreme Court ministers. “When the judge doesn’t behave like a judge – when he behaves like a politician, as has been happening – he ends up having sanctions from politicians, which is what explains the unpopularity of the Federal Supreme Court”, he says.