PEC of the privileged forum in progress in Congress for 11 years becomes a reaction to the judgment in the STF

BRASILIA – A Proposed Amendment to the Constitution (PEC) that limits the privileged forum for authorities became a reaction by the National Congress to the judgment of the Federal Supreme Court (STF) which is close to expanding the cases in which politicians are tried by higher courts. The text, which has been in progress for 11 years, is supported by congressmen allied with former president Jair Bolsonaro (PL). They want to avoid the Supreme Court’s analysis of inquiries involving the former chief executive.

This past Friday, the 29th, the STF resumed the judgment on the scope of the prerogative for public authorities. The score is five votes in favor to maintain the prerogative even after the person being investigated leaves his role, with just another favorable position needed to form a majority.

After leaving the Presidency in 2022, Bolsonaro automatically lost his right to privileged jurisdiction. The change in prerogative by the Court could result in cases against the former president that are being processed in lower courts being judged in the STF, in addition to ensuring that current investigations that are in the Supreme Court are questioned for being in the wrong sphere of the Judiciary.

The PEC was presented by former senator Álvaro Dias (Podemos-PR) in 2013 and, since then, it has been shelved in the Legislature. The approval of the PEC is supported by the opposition in the National Congress. The parliamentarians’ strategy is to change the list of those benefiting from the forum based on the Constitution and, in this way, avoid judgments by the STF.

At the beginning of this year, federal deputies from the PL of Rio de Janeiro Carlos Jordy and Alexandre Ramagem were targets of Federal Police (PF) operations ordered by STF minister Alexandre de Moraes. Because they are parliamentarians, Jordy and Ramagem are being investigated in inquiries being processed by the Supreme Court.

After the operations against parliamentarians, federal deputy Ubiratan Sanderson (PL-RS) asked for the inclusion of the PEC in the Chamber plenary. According to the parliamentarian, the STF “acts against the grain” of international trends. “In a healthy republic, where everyone is equal before the law, there is no longer room for forum privilege. The impression I have is that the Brazilian Supreme Court wants to keep federal parliamentarians under its jurisdiction,” he said.

PEC is at a standstill in the Chamber and depends on Lira to move forward

The privileged forum is provided for in the 1988 Constitution and determines that those who hold certain public positions must be judged in specific spheres of the Judiciary. Currently, the legislation provides the prerogative for the president and vice-president of the Republic, ministers of State, heads of the Armed Forces, governors, mayors, deputies, senators, members of higher courts and advisors to audit courts.

If the PEC is approved, the prerogative would be restricted to five positions. Furthermore, only crimes of responsibility in relation to positions could be tried in a privileged forum.

In 2017, the PEC was unanimously approved by the Senate, being forwarded to the Chamber of Deputies for consideration. In 2018, the creation of a special commission to analyze the text was approved, but, to date, the panel has not been installed by the House.

To move forward, the PEC needs to go through the special collegiate and be endorsed by the Chamber’s Constitution and Justice Commission (CCJ). After this stage, it must be guided by the President of the House, Arthur Lira (PP-AL), and approved by 308 of the 513 deputies in two rounds.

According to opposition parliamentarians interviewed by Estadão, there is an expectation that the PEC will advance through the House, however, a decision by Lira on the issue is still necessary. O Estadão He contacted the President of the Chamber, but received no response.

Supreme Court can expand situations where politicians are subjected to privileged forum

The Supreme Court judges a habeas corpus filed by senator Zequinha Marinho (Podemos-PA), who is a defendant in a case at the Brasília Court of Justice for alleged “rachadinha” practices between 2007 and 2017, when he was a federal deputy. Zequinha’s defense argues that, since 2007, he has held private positions without interruption and, therefore, the man from Pará should be judged by the Supreme Court.

In 2018, the STF plenary decided that privileged forum must be guaranteed to politicians who committed, during their term in office, crimes related to the position held. Common crimes committed before parliamentarians assume their positions or without any connection with their functions are judged by courts of first instance.

The reporting minister for the trial is Gilmar Mendes, who proposed that the person under investigation should lose jurisdiction only if the alleged crime was committed before the authority took office, or if it is not related to the exercise of the function.

Supreme Court decision could impact Bolsonaro’s legal life

If the STF changes its understanding of the privileged forum, Bolsonaro could be tried for crimes that occurred during the period in which he headed the Executive. Currently, the former president’s defense adopts the thesis that, without the prerogative, the STF does not have the competence to judge him.

At the Supreme Court, the former president is the target of five investigations. One of them is about the alleged fraud in Covid-19 vaccination cards, where Bolsonaro’s defense argued that the issue is not related to the exercise of his mandate, in an attempt to forward the case to the first instance.

In the case of the alleged scheme where Bolsonaro and his allies illegally sold Presidency jewelry, the defense also questions the STF’s competence to judge the case, as Bolsonaro lost his privileged jurisdiction when leaving the Presidency. Moraes, who is the inquiry’s rapporteur, argues that there is a connection with other investigations and, therefore, the case should be maintained in the Supreme Court.

If the Supreme Court changes its understanding of the forum, guaranteeing the prerogative for former presidents, there will be no further discussion about the jurisdiction of the trials, which will remain in the Court.

A possible decision by the Supreme Court could also take cases involving Bolsonaro that are being judged by the common courts to the Court. One of them is the public civil action against Bolsonaro involving the violation of the right to images of children and adolescents, filed on February 15, 2023. In it, Bolsonaro is accused of using images without parental authorization during the 2022 electoral campaign.