Amnesty in Congress on 1/8 and Bolsonaro is born with loopholes and should reach the STF

SÃO PAULO, SP (FOLHAPRESS) – A possible amnesty granted to those convicted of the coup attacks of January 8, 2023 has a legal loophole in its origins and should reach the STF (Federal Supreme Court) if approved by the National Congress, according to experts interviewed for the report.

For them, the general pardon related to the coup acts will probably be brought before the courts, which have the final say in interpreting the constitutionality of the bill.

The trend, say professors and lawyers, is for the court to veto an amnesty for crimes related to the attempted coup d’état and the violent abolition of the democratic rule of law, in line with what the Magna Carta defends.

The issue will be debated in the Chamber of Deputies by a special commission, as decided on Monday (28) by the president of the Chamber, Arthur Lira (PP-AL), who withdrew the project from the CCJ (Constitution and Justice Commission). .

After debate, it must be approved by a simple majority in the House and Senate. It then goes to President Lula (PT) for approval. If there is a veto, it goes back to Congress, which can overturn it and approve the bill.

Depending on how it is debated, the amnesty could benefit former President Jair Bolsonaro (PL) on more than one front. One of them would be in relation to the conviction in the Electoral Court for abuse of political and economic power and improper use of the media, which has already left him disqualified for eight years. The other deals with an investigation into the former president’s participation in a coup attempt in January 2023.

This is because PL 2858/2022 is, with its annexes, currently complete. “The text provides, for example, that the fines imposed by the Electoral Court will be annulled and that the causes of ineligibility will be put to an end,” says Gustavo Sampaio, professor at the Department of Public Law at the UFF (Universidade Federal Fluminense).

If approved by the Legislature, the probability that it will be taken to the Supreme Court is high, experts say.

“I have no doubt that someone will knock on the door of the Supreme Court saying that it is unconstitutional,” says Álvaro Palma de Jorge, a professor at FGV Rio, specialized in issues related to the STF and fundamental rights. “If the STF says it is unconstitutional, Congress will say that the court is invading its jurisdiction to grant amnesty. It is like a dog chasing its own tail.”

Despite the possible erosion between the Powers, the STF has the last word on constitutionality.

The tendency is for the court to consider that there is a legal loophole in the origin of the project, which is the implicit limit that the Constitution gives to the possibility of granting amnesty to those who invest against democracy itself, says Gustavo Sampaio.

An example, he states, is the annulment by the STF of the pardon granted by Bolsonaro to former federal deputy Daniel Silveira in a case that also involved the demonstration against the democratic rule of law.

For Álvaro Jorge, the bill can also be questioned, in the interpretation of part of the legal universe, due to a possible breach of impersonality by proposing a specific amnesty for the electoral conviction of the former president, which would violate the principle of impersonality.

“The discussion here is the following: wouldn’t Congress be stripping the Electoral Court of its jurisdiction by being able to review a certain electoral conviction of a person?” he says.

He, however, says he personally disagrees with the interpretation.

According to Henderson Fürst, professor of constitutional law at PUC Campinas, one possibility is that the STF evaluates the amnesty for crimes with less offensive potential, such as purely patrimonial ones.

“As for other cases that deal with attacks on the democratic rule of law, it is likely that the Supreme Court will consider that there is unconstitutionality [na anistia]”.

According to Welington Arruda, master in Law and Justice at the IDP (Brazilian Institute of Education, Development and Research), there is still a PEC amnesty (70/2023) in the Senate. It has its own process and is in the Constitution, Justice and Citizenship Commission. In this case, the last word on constitutionality also belongs to the STF.