Judges join the fray in Brazil’s bitter election fight

Brazilian President Jair Bolsonaro, who is fighting to hold onto power in a dirty trick election, has again targeted the umpires.

“There is interest in one candidate from part of the judiciary,” he said last week, suggesting bias in favor of his left-wing rival, ex-president Luiz Inácio Lula da Silva.

In the final straight before a runoff election between the two men on Oct. 30, a series of rulings has placed the country’s top judges at the center of a highly fraught contest.

Brazil’s top electoral tribunal has stepped up its fight against disinformation, forcing both camps — as well as the media — to stop broadcasting allegations ranging from Satanism to pedophilia.

Along with a succession of Supreme Court decisions against Bolsonaro or his supporters since he took office in 2019, it underscores the growing political role played by the country’s highest courts.

Video: Brazil: a divided country | FT movie

However, there are warnings that the interventions could damage the credibility of the institutions at a time of polarization in Latin America’s largest democracy.

“The justice system has been politicized in ways that have eroded its legitimacy,” said Filipe Campante, a professor at Johns Hopkins University.

“Bolsonaro has pulled the Supreme Court further into the political arena,” he added. “And the Supreme Court played into his hands by acting in ways that were questionable.”

The far-right populist has regularly clashed with the Supreme Court, locally referred to by its acronym STF, because it frustrates government policy.

One of the most contentious decisions was last year’s annulment of corruption convictions against Lula, paving the way for his candidacy.

At the same time, the electoral court, known as the TSE and which has three STF judges among its seven judges, has strongly opposed Bolsonaro’s unsupported claims that Brazil’s electronic voting machines are vulnerable to fraud. Opponents see the claims as a pretext to dismiss a potential election defeat.

Supporters of the courts’ firm stance say they are justified in curbing the president’s aggressive tendencies and protecting democracy from a wave of misinformation.

“We are in the process of authoritarianism, which has failed because of resistance, partly from the judiciary,” said Eloísa Machado, a professor of constitutional law at the Getúlio Vargas Foundation.

One of the most high-profile clashes between a politician and the STF erupted into violence on Sunday when, according to police, a former lawmaker and an ally of Bolsonaro fired shots and threw a grenade at officers sent by the court to take him to jail. to bring. two officers injured.

Roberto Jefferson, who was detained last year as part of an investigation into “anti-democratic digital militias,” was found to have violated the terms of his house arrest by comparing a female STF judge to a prostitute via social media. Bolsonaro denounced him on Sunday as a “criminal”.

The STF’s outsized profile in Brazilian public life is partly due to design. The 11 judges, usually but not always professional judges or prosecutors, are nominated by the incumbent president, subject to Senate approval, and serve until age 75.

Former President Luiz Inácio Lula da Silva © Alexandre Schneider/Getty Images

With jurisdiction over constitutionality issues, it is also a court of last instance and hears actions against politicians, such as the president and MPs. This broad assignment adds to a large workload — with nearly 100,000 decisions last year — that dwarfs its US counterparts.

Unlike the US Supreme Court, the ideological sympathies of STF judges in Brazil are less well defined, Campante said.

“It’s more like they’re behaving like other politicians. . .[with]decisions often based on their own political interests and the wider political environment,” he added.

But opponents – especially Bolsonaro voters – accuse the two courts of crossing borders and even violations of freedom of expression.

They cite a recent move by the TSE instructing YouTube to suspend the “money-making” of four pro-Bolsonaro channels for publishing false information about Lula.

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It has also forced the two candidates to broadcast rebuttals of their opponent in TV ads, although the higher number conceded to Lula will give him more airtime in the final week of the campaign.

The electoral body’s decisions are in response to a flood of petitions from both sides alleging foul play.

But unease over its reach increased last week after the court granted itself new powers to order social media sites to remove online content it already deemed counterfeit within two hours.

The head of the TSE, Supreme Court Justice Alexandre de Moraes, said there was a 17-fold increase in misinformation complaints compared to the last election.

Uziel Santana, of an evangelical lawyers’ association, argued that the electoral body’s recent actions “are seriously damaging the rule of law” and potentially creating problems for the vote.

“Press freedom is under attack,” he said. “The TSE is unbalancing the political game and this can later be used, by one of the campaigns, to claim state interference beyond constitutional boundaries.”

Carlos Melo, a political scientist at Insper University in São Paulo, believes that if Bolsonaro loses, he may blame the defeat on an alleged “manipulation of electoral justice”.

“That’s the strategy and the story,” he said.

The TSE declined to comment.

The anger of the president’s supporters had already been sparked by a series of controversial Supreme Court rulings.

One involved a right-wing lawmaker who was sentenced to nine years in April after posting online threats against STF judges, including Moraes, who was criticized by Bolsonaro. He was later given a presidential pardon.

Then in August, a group of bolsonarista businessmen were temporarily frozen for raids on their homes and bank accounts, following press releases from a private WhatsApp group suggesting he preferred a coup to a Lula victory.

At the time, Moraes justified the order on the basis of its ability to fund “anti-democratic acts.” He declined to comment on this article.

Supreme Court Justice Dias Toffoli defended the moves as “unfortunately necessary” but dismissed charges of judicial activism against the STF.

“You can never go too far to defend the constitution and democracy,” he told the Financial Times. “Our work is based on defending the rule of law. . . it is the function of checks and balances”.

Rather than a politicization of the judiciary, he argued that there was in fact a “legalization” of politics, as elected representatives often referred disputes to the STF.

Whoever wins the election, the political focus on Brazil’s Supreme Court is unlikely to abate, not least because the next president will have to replace two retiring judges in 2023.

Bolsonaro withdrew a recent proposal to increase the number of seats after sparking outrage over the judicial process and comparisons to authoritarian regimes.

Still, the election of several high-ranking Bolsonaro allies to the Senate has raised the possibility that the Senate could try to impeach STF judges — which experts say has never happened successfully since the 1988 constitution — experts say.

“There is electoral appeal for hostility and overt attacks on the court, and that is absolutely not good,” said Rafael Mafei, a professor at the University of São Paulo.


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