TSE must contradict thesis in Bolsonaro’s judgment – 06/18/2023 – Power

The judgment of the TSE (Superior Electoral Court) that could make Jair Bolsonaro (PL) ineligible must take into account the entire coup context linked to the former president and not just the meeting in which he spread lies to ambassadors and motivated the action filed by the PDT .

The rapporteur of the process, the general electoral inspector Benedito Gonçalves, indicated in his decisions that he will adopt this type of understanding and has had the support of most of his colleagues.

The assessment of court observers is that the process filed by the PDT will be analyzed from the next 22nd within a context of repeated statements and actions by Bolsonaro against the Brazilian electoral system and against ministers of higher courts.

Thus, the tendency is for the electoral court to go against the understanding established in 2017 by rejecting the impeachment of the ticket of Dilma Rousseff (PT) and Michel Temer (MDB). At the time, the TSE decided by a majority to disregard new evidence presented after the action was filed. This evidence pointed to other suspicions, related to slush funds, against the two politicians.

The majority understanding at the time was that an Aije (Electoral Judicial Investigation Action), the type of action that was filed against Bolsonaro, deals with specific facts and does not admit that points considered unrelated to the process are used to judge who is the target of it. At the time, the court had a different formation and even had the presence of Bolsonaro’s current electoral lawyer, Tarcísio Vieira de Carvalho.

Now, with a new composition, the TSE gives indications that it will make an assessment in the opposite direction. This became clear, for example, when Benedito agreed to include in the process the draft of the coup decree found by the Federal Police at the residence of Anderson Torres, former Minister of Justice, revealed by the Sheet on January 12th. At that time, the action was already in the electoral court.

The magistrate has pointed out that the case is necessary for “elements that are intended to demonstrate developments of the facts originally narrated [na ação]” and that point out the seriousness of Bolsonaro’s conduct. It also cites “circumstances relevant to the context of the facts, revealed in other police, investigative or judicial procedures or, even, that are public and notorious knowledge “.

Benedito took his decisions to the approval of the other court ministers, who have agreed with him.

The minister’s vision is also present in manifestations of the Electoral Public Ministry about the episode of the ambassadors. The body has already seen in Bolsonaro’s attitudes “a set of assertions that make up the purpose of discrediting the legitimacy of the digital voting system” employed since 1996 in the country.

From the beginning, the court has understood that the meeting with the ambassadors — in which the former president repeated conspiracy theories about electronic voting machines, discredited the electoral system, promoted coup threats and attacked ministers of the STF (Federal Supreme Court) — cannot be considered an isolated fact.

The meeting with representatives of other countries would be closely linked to an attempt to unbalance the electoral system repeated by the president on several occasions, which culminated in the coup attacks on January 8.

“Aije has an object, and when the action is filed, that object cannot be modified, this is a thesis that is very well known”, says the doctor in public law from Uerj (University of the State of Rio de Janeiro) and professor of constitutional law Ademar Borges.

Last year, Borges and professor of criminal law Alaor Leite prepared an opinion that provided for the possibility of Bolsonaro being punished, at the request of entities that defend human rights — the Arns Commission, Article 19 and Conectas. This document was attached to an action filed in 2022 by the Electoral Public Ministry that led to the former president being fined.

“But this action [contra Bolsonaro] it has a peculiarity. Both in the representation of the Electoral Public Ministry and in this Aije filed after the elections by the PDT, it is alleged that the meeting with the ambassadors is the result of a consequence, a consolidation of a sequence of attacks that had already been happening over the previous months and that had become intensified,” he says.

“Both in the representation and in that action, what was alleged was that there was a broad, systemic strategy for the production and dissemination of disinformation against the electoral process, and even for authoritarian purposes.”

According to him, the view contained in the process is that this disinformation campaign had as its central vector Bolsonaro, who was president of the Republic and candidate for re-election, and intended to make a portion of the Brazilian population understand that the elections had been rigged and that the Judiciary was involved in a conspiracy theory to favor Lula (PT), his opponent.

A central point of the process that will be judged against Bolsonaro must be the misinformation against the integrity of the electoral process, as happened in the process that led to the impeachment of state deputy Fernando Francischini, at the time in the PSL-PR, in 2021.

Francischini claimed on social media, without evidence, that ballot boxes were tampered with to prevent Bolsonaro from being elected in 2018.

In the case of Bolsonaro, the TSE should focus its discussions less on the imbalance caused by the former president to electoral competition, as is more traditionally the case in judgments on abuse of political or economic power by the court, and more on the seriousness of the reach of the disinformation campaign. led by the former president.

“In traditional cases of abuse of power, the requirements that the court always investigated to know whether the offense was serious enough to apply a possible impeachment or ineligibility were linked to the quantitative and qualitative gravity of the aggression to equality of chances [entre candidatos]”, says Ademar Borges.

Vera Chemim, master in public law at FGV, criticizes the fact that the TSE accepted the inclusion of the draft of the coup in the process and expanded the initial scope of the action.

She mentions the article of the Code of Civil Procedure that provides that it is possible to “change the request and the cause of the request” until the process is cleared up if there is “the defendant’s consent”.

“I remember the case of Dilma. There, the so-called stabilization of demand and the non-inclusion of new facts in the process were taken into account. check if he really [Bolsonaro] would have accepted that draft, whether they would have known it or not. Unfortunately, there is an ideological political bias, there is no doubt about it, there has been an extrapolation, “he says.