Privileged forum opposes Congress and Supreme Court

The opposition to the government of President Luiz Inácio Lula da Silva, in the Chamber, is moving to take the lead in the discussion on the end of the privileged forum and, thus, take a stand against the Federal Supreme Court (STF). Federal deputy Sóstenes Cavalcante (PL-RJ) presented, this Tuesday, a proposed amendment to the Constitution (PEC) that aims to reform the special forum system in Brazil.

The matter changes the system of the forum prerogative, without, however, eliminating it. According to the text, deputies and senators will be judged by the Federal Regional Courts (TRFs), with the possibility of appeal to the Superior Court of Justice (STJ).

“In this way, the due distance from local political disputes is guaranteed and the double degree of jurisdiction is ensured, which does not exist in the current rules (since the legal action already begins in the Supreme Court). The STF reserves the jurisdiction to resolve eminently constitutional issues, through appeal, as already occurs in any criminal action”, explained the deputy’s team. The proposal needs 171 signatures from deputies to advance in the House and begin to be debated.

In the Chamber, there is another PEC that deals with the matter. Proposal 333/2017, which ends the privileged forum, was approved in 2017 by the Senate, passed through a special committee in the Chamber and is ready to be voted on in plenary. Since 2020, deputies have filed requests for the matter to be included on the agenda, but the text remains at a standstill.

In the opinion of parliamentarians, although the 2017 PEC is more advanced in processing, it is more advantageous to present a new proposal, as it would not be possible to make changes to the text of the one that has already been approved in the Senate and committees. Furthermore, deputies assess that this amendment would not have sufficient consensus to be accepted.

Thus, the PEC initiated by deputy Sóstenes Cavalcante includes in the text the changes that parliamentarians want. According to him, the proposal already being processed in the Chamber could “open the way for undue political persecution via the Judiciary, since there is a great possibility of interference and pressure from local politics in the judiciary’s actions.” This is because the text proposes that senators and deputies be judged by a first-degree judge, in the common courts.

The presentation of a new PEC had been discussed in the opposition since the beginning of this year, when parliamentarians linked to the right were targets of Federal Police operations, with searches and seizures in offices. Among them were Carlos Jordy (PL-RJ) and Alexandre Ramagem (PL-RJ), investigated in the investigations into the coup attempt on January 8, 2023 and the interference in the Brazilian Intelligence Agency (Abin), respectively.

Amid the progress of these investigations, there is concern about the fate of former president Jair Bolsonaro (PL), the target of investigations into the attempt to abolish the Democratic Rule of Law, with the movements that led to the attacks on the Three Powers buildings, at the beginning of last year. As a result, senators and deputies began to pressure Congress to take some measure capable of preventing what they call “political persecution”.

Tug of war

The articulations about the end of the privileged forum represent yet another clash between the STF and Congress. At the Supreme Court, ministers are reviewing their understanding of criminal jurisdiction.

In 2018, the STF established that the privileged forum would only be applied to crimes committed by parliamentarians, vice-president of the Republic, president of the Republic, presidents of the Chamber and Senate, judges, governors, ministers and others during their term of office and as a result of it. .

Last Friday, however, the STF returned to debating the legal mechanism, and the action’s rapporteur, Minister Gilmar Mendes, voted for the scope to be expanded. In practice, this would mean that actions against these authorities would continue to be processed in Court even after the end of their mandate. The decision expands the power of Supreme Court magistrates over actions involving parliamentarians and other authorities.

“The current understanding unduly reduces the scope of the forum’s prerogative, distorting its foundations and frustrating the fulfillment of the purposes pursued by the legislator. But that’s not all. It is also counterproductive, by causing fluctuations in jurisdiction in the course of criminal cases and by bringing instability for the justice system”, noted the minister.

Ministers Cristiano Zanin, Dias Toffoli, Flávio Dino and Alexandre de Moraes followed the rapporteur’s vote to increase the prerogative, thus going against what the Legislature wants. There is only one vote left to form a majority — the trial was suspended following a request from the president of the STF, Luís Roberto Barroso.

On the other hand, deputies claim that the STF’s change of understanding is a way of persecuting opposition parliamentarians and Bolsonaro.

“If the law were being complied with, we wouldn’t need a PEC. The concern is that the STF, thinking about persecuting certain parliamentarians or catching Bolsonaro, in 2018, decided that crimes committed by parliamentarians outside of their mandate would not be judged by the Supreme Court, but now that they want to catch some politicians, they have changed their understanding”, said deputy Alberto Fraga (PL-DF), president of the Chamber’s Public Security Committee. “This change of position in the STF is very strange and that is why we defend the PEC presented by deputy Sóstenes.”