Supreme Court justice overturns colleague’s election-court ruling
Flávio Dino
Rosinei Coutinho/STF
Supreme Court Justice Flávio Dino on Sunday overturned an election-court ruling by fellow Justice André Mendonça that had ordered the removal of social-media posts about a controversy involving Our Lady of Aparecida, Brazil’s patron saint.
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Mendonça, acting as a member of the Superior Electoral Court, had ordered on Friday the removal of a post in which comedian Antônio Tabet referred to an alleged attack on Our Lady of Aparecida amid the election campaign. The justice granted a request from Liberal Party presidential candidate Flávio Bolsonaro’s campaign, which had taken the matter to the electoral court.
The controversy gained traction on social media after users revived discussion of a nearly two-decade-old bill that sought to remove the designation of Our Lady of Aparecida, a Black representation of the Virgin Mary revered by Brazilian Catholics, as the country’s patron saint. Flávio has denied supporting such a move.
Tabet’s post did not directly name Flávio. “The militia family hates Black women so much that it decided to attack Our Lady of Aparecida,” it said. Dino issued his ruling after Tabet challenged Mendonça’s decision before the Supreme Court, using a procedural route that some legal scholars have criticized.
Mendonça had said the post contained “highly critical and derogatory expressions” and went beyond the realm of political opinion by conveying an “objectively false fact, fabricated information or serious decontextualization capable of interfering with voters’ free formation of opinion.”
Dino, however, found that Mendonça’s order violated freedom of expression and religious freedom and struck down his colleague’s decision issued in the electoral court.
Legal scholars split over procedure
“The electoral court deals with the circumstances of elections and, precisely for that reason, is very dynamic, examining developments daily. It is not common for the Supreme Court to intervene in an electoral-court decision and immediately issue a ruling on an ordinary electoral matter,” said Elival Ramos, a constitutional law professor at the University of São Paulo.
Ramos added that the type of constitutional complaint used to bring the case before Dino is a subsidiary legal mechanism and should not normally supersede proceedings before the electoral court.
Vera Chemin, a constitutional lawyer with a master’s degree in public law from Fundação Getulio Vargas, said Dino’s decision created a “dangerous precedent.” She said the normal route would have been to file an appeal with the electoral court or the Supreme Court, describing Dino’s accepted mechanism as a “shortcut” in a case that “had no connection with the comedian’s issue.”
“He overrode a colleague’s decision and opened the door to filing an incidental petition to overturn decisions by the electoral court,” Vera Chemin said.
Gustavo Sampaio, a constitutional law professor at Fluminense Federal University, said the decision represented another chapter in what he called the “civil war” underway at the Supreme Court. He said Dino’s decision was “substantively” correct in seeking “minimal intervention” in members of society’s expressions of opinion.
Sampaio nevertheless acknowledged the procedural “controversy,” since Dino issued the ruling in response to a petition filed in a constitutional complaint in which he was already the reporting justice at the Supreme Court.
“It shows the context we are living in. A petition filed on Saturday, a decision on Sunday,” Gustavo Sampaio said.
Felipe Fonte, a law professor at Fundação Getulio Vargas, called Mendonça’s original decision controversial but consistent with the electoral court’s case law. He said Dino’s role as reporting justice in the constitutional complaint where the new petition was filed could conflict with the principle that cases must be heard by judges assigned under pre-established jurisdictional rules, creating legal uncertainty.
“From a procedural standpoint, I have never seen anything like this. The route chosen was inappropriate,” Felipe Fonte said.
That view, however, is not unanimous. Wallace Corbo, a public law professor at Fundação Getulio Vargas in Rio de Janeiro and Rio de Janeiro State University, said Dino followed an orthodox procedure.
“The decision appears to be well grounded in Supreme Court precedents holding that state intervention in the dissemination of opinions should be exceptional. Dino did not directly hear an appeal against Mendonça’s decision. He ruled on an action alleging that taking the post down violated a binding precedent, and he found that it did,” Corbo said.
In a statement, Flávio’s legal team accused the Supreme Court of “constitutionally usurping jurisdiction,” arguing that the matter belonged to the electoral justice system. It said Tabet’s defense had sought out an authority “deliberately chosen” by expanding the scope of an existing case.
At a campaign event in Goiânia, Flávio called the episode a “horror show” and said Dino had “authorized” what he described as the “biggest piece of fake news of the campaign.”
“Today, once again, this justice of Lula’s called Flávio Dino has issued another stroke of the pen, authorizing the Workers’ Party’s league of lies,” Flávio said.
Flávio also accused members of the National Conference of Bishops of Brazil, which represents the country’s Catholic bishops, of echoing what he described as fake news. The organization responded in a statement, stressing that “one lie cannot be fought with another.”
President Lula also weighed in. In an interview with Bandeirantes television network on Sunday night, he said that “messing with Our Lady of Aparecida is unacceptable,” even after an interviewer pointed out that the claim at the center of the controversy was false.
“I say this: She will remain Brazil’s patron saint because the people want it and have faith,” Lula said.
