TSE inaugurates a new concept of abuse of power

The conviction by the Superior Electoral Court (TSE) of former President Jair Bolsonaro, sanctioned this Friday (30), inaugurates a new concept of abuse of power in the electoral process and creates strong legal uncertainty in the context of elections, according to jurists interviewed by People’s Gazette.

The rapporteur of the process, Benedito Gonçalves, and the ministers who followed his vote framed Bolsonaro’s meeting with ambassadors in article 22 of the Ineligibility Law, which expressly says that, to make someone ineligible, the electoral crime in question must occur “for the benefit of candidate or political party”.

In the votes presented, the rapporteur and ministers Floriano de Azevedo, André Tavares, Cármen Lúcia and Alexandre de Moraes highlighted at all times the seriousness of the meeting itself, but they had difficulties in objectively demonstrating how the event would have brought benefits to Bolsonaro from the point of view electoral point of view.

Janaina Paschoal, PhD in Criminal Law and former state deputy in São Paulo, explains that the “abuse of political power requires imbalance, even in theory, of the election”.

She criticizes, for example, Azevedo’s argument that Bolsonaro would have taken an electoral benefit from the meeting by encouraging people not to vote, since it discredited the Brazilian electoral system. “Well, if that’s the case, the imbalance would be to the detriment of the former president, as potential Lula voters would not believe in Bolsonaro”, observes Janaina.

An Electoral Law specialist who spoke to the People’s Gazette under the condition of anonymity, it is emphasized that the severity, for the characterization of abuse, must be objectively demonstrated. The demonstration, he explains, requires the presentation of evidence that attests to the capacity of the act to influence the electoral result, without necessarily determining it.

According to him, although the electoral outcome does not need to be favorable to the candidate who took advantage of the alleged abuse of power, it is essential that the seriousness is duly proven by the analysis of its impact on the elections. For him, the meeting with the ambassadors had no relevance to the dispute, and Bolsonaro’s ineligibility is the result of a remodeled and novelty concept of abuse of political power – one who is used to news and likes to spread them among others.

The jurist Adriano Soares da Costa, author of the book “IElectoral Law Institutions” (2006), states that the decision to make Bolsonaro ineligible “sets a very dangerous precedent for the next presidential elections” and “transforms presidential candidacies and presidential mandates into precarious mandates”, treating a president “as a councilor from the interior who is being accused of having distributed chickens”.

“Seven judges, seven ministers of Electoral Justice, if they understand that that fact in itself is serious, remove the president. That is, our democracy and the presidential mandate are absolutely vulnerable, precarious, and this judgment begins the phase of precariousness of the presidential term”, he says. In the case of Bolsonaro, five of the seven ministers voted for ineligibility.

Nunes Marques and Araújo questioned which electoral benefit Bolsonaro would have obtained

Only ministers Kassio Nunes Marques – who voted this Friday – and Raul Araújo – who cast his vote on Thursday – understood the PDT action against Bolsonaro’s ticket as unfounded.

In their justifications, both focused precisely on questioning what electoral benefit Bolsonaro would have obtained from the meeting with ambassadors.

“I do not identify the seriousness necessary to form a condemnatory judgment in disfavor of the investigated Jair Messias Bolsonaro”, said Nunes Marques. According to him, the concept of seriousness, when it comes to the hypothesis of abuse of power, requires “safe proof of the seriousness of the imputed facts, demonstrated from the verification of the high degree of disapproval of the conduct (qualitative aspect)” and the “significant repercussions in order to influence the balance of the electoral dispute”, aspects that the minister did not identify in the case under trial.

Raul Araújo, in turn, questioned: “The Electoral Justice values ​​itself by the principle of minimum intervention in favor of the sovereignty of the popular vote. So, one has to ask: did the aforementioned conduct interfere with the electoral result?”

Araújo understood that the July 2022 meeting did not represent abuse of political power and misuse of the media, because the imputed facts had no real capacity to change the outcome of the electoral process.

Moraes ends the trial with an effusive speech against Bolsonaro

With the result defined and the votes of the other six ministers already presented, the president of the TSE, Alexandre de Moraes, preferred to dispense with a literal reading of the text of his vote and ended the trial with little legal arguments and an effusive speech against Bolsonaro.

The minister resumed, once again, his usual argument about freedom of expression, noting that it is becoming “even repetitive”.

He said that making Bolsonaro ineligible until 2030 was a response by the TSE to “degrading populism reborn from the flames of hate speech”, in a speech full of criticism of the former president.

Among other criticisms, Moraes stated that the former president met with ambassadors in order to “disturb the electoral process” and “convince voters of the imminence of a great conspiracy to defraud the 2022 elections”.

The magistrate reproduced Bolsonaro phrases used in the meeting with ambassadors and shouted “lie!” after each one of them, to illustrate the alleged abuse of political power and misuse of the media, and support the thesis that there was a “modus operandi to induce misinformation in the electorate”.

“The hacker said that there had been fraud during the elections, he said that he had invaded everything. That’s a lie! The hacker clearly says that he had access to everything inside the TSE. That’s a lie! We all know, first, that the ballot boxes are offline, the ballot boxes they are not online. All wanting to insinuate fraud. According to the TSE, still, says the investigated, “the hackers stayed for eight months inside the computers of the TSE, with source codes, with passwords and very comfortable inside the TSE”. as it is a lie when it says that the source code was not disclosed”, said the minister.

For Moraes “there is nothing of freedom of expression” in the president’s speeches, “by lyingly saying that there is fraud in the elections”.

The minister also pointed out that Bolsonaro was warned that anyone who raised doubts about the electoral process would be impeached. “The candidate Jair Messias Bolsonaro could not claim ignorance about the positioning of the premises for the 2022 elections of what would be abuse of the political and communication means, because the Court had already defined it”, he said.

Moraes also said that the Electoral Justice is giving a response “of disgust to the degrading populism reborn from the flames of hate speeches, anti-democratic speeches, speeches that propagate infamous disinformation, disinformation produced and disseminated by true digital militiamen around the world “.