The action asked for the immediate suspension of Article 43 of the Internal Regulation of the STF. The request was also signed by the Union’s attorney general, Bruno Bianco.
Article 43 states that: “In the event of an infringement of the Criminal Law at the seat or dependence of the court, the president will initiate an inquiry, if he involves an authority or person subject to his jurisdiction, or will delegate this attribution to another minister.”
In March 2019, the then president of the STF, Minister Dias Toffoli, based this article on the initiative of the Supreme Court to open the fake news inquiry, which investigates false information, slanders, offenses and threats to Supreme Court justices.
At the time, the STF did not ask the Attorney General’s Office to manifest itself, as this is not required by the bylaws.
Earlier this month, Bolsonaro was investigated in this inquiry at the request of the Superior Electoral Court (TSE) due to the criticism he has been making, without evidence, of the country’s electoral system.
Bolsonaro’s action questioned this rule and argued, among other points, that the rule of the Supreme Court violates the Constitution because it restricts the role of the Public Ministry. See details of the action in the video below:
Bolsonaro files a lawsuit in the STF to prevent the court from opening an investigation on its own initiative
The AGU argued that the action now presented to the STF is justified “in view of the serious and persistent disagreement between the application of this rule and fundamental precepts, as well as the threats to the fundamental rights of the accused in the investigations”.
But in practice, government action is an attempt by one power to change the regiment of another power.
In his decision, the minister stated that the Supreme Court had already dealt with the legality of article 43 in last year’s judgment that validated, by 10 votes to 1, the investigation of the fake news (see below).
“The controversy, therefore, has already found its proper conformation within the scope of the constitutional jurisdiction concentrated in the judgment of ADPF No. 572, of my report, j. 18.06.2020, no longer revealing the new ADPF as a necessary and effective means to remedy the harm alleged”.
Fachin also said that any complaints about the application of the regiment must be dealt with individually.
In the same decision, Fachin also rejected, for procedural reasons, three other PTB actions that questioned the constitutionality of both the internal rule of the Supreme Court and decisions taken by Minister Alexandre de Moraes in the fake news inquiries and anti-democratic acts.
In June of last year, the STF plenary validated the fake news inquiry, considered the way in which the investigation was opened and understood that it should proceed. Remember in the video:
By 10 votes to 1, STF decides on the legality of the fake news inquiry
At that session, the Federal Public Ministry, represented by the Attorney General of the Republic, Augusto Aras, agreed that the inquiry did not violate the Constitution.
In this ocasion, the AGU itself, author of the action proposed by the president, stated that the opening of the inquiry respected the rules.
“Arguments are not lacking to defend Article 43 of the Internal Regulations of the Supreme Court. The Supreme Court of our country cannot be denied the necessary means for its own institutional protection, and this is independent of any other constituted power”, said the attorney general of the Union at the time, Joaquim Levy, on June 10, 2020.