Senators discuss change in selection criteria indictment of presidents of the Republic which, if approved, will further expose government leaders to this type of process. The idea is to allow a re-elected president to be held accountable for crimes committed during a previous term.
The current law remains silent on the subject, but it is currently accepted that liability can only take place for facts related to the same mandate in which there is a request for dismissal.
This is the rule used for the dismissal of Dilma Rousseff (PT). At the start of his second term in 2015, several requests for indictment cited events that occurred the previous year. However, the process that led to the fall of the PT in 2016 was formally based only on more recent information.
The idea being discussed in the Senate could increase presidents’ exposure to the risk of impeachment because, if it goes into effect, it will leave government leaders liable to answer for acts committed over a longer period of time.
This change is analyzed in the new impeachment bill, which the Senate is expected to vote on next year. The rapporteur, Weverton Rocha (PDT-MA), indicated in a draft report to which the report had access that he accepted a suggestion from Senator Paulo Paim (PT-RS) with this content.
“The President of the Republic, in the event of re-election or if he is re-elected, may be held responsible for acts accomplished during a previous mandate which constitute an offense of responsibility,” specifies the amendment.
The proposed wording opens a breach to hold the President of the Republic responsible for events that occurred during a previous mandate at the head of government, even if electoral victories are not followed.
Since the establishment of re-election, three presidents have been re-elected (Fernando Henrique Cardoso, Luiz Inácio Lula da Silva and Dilma Rousseff) and only one has had two non-consecutive mandates (Lula, with his current government). Fernando Collor was impeached during his first term and before his re-election was instituted.
“With the institution of re-election in effect, and even in the event of new elections, it is not plausible to adopt the thesis that, once the term ends, the crimes committed in this country are completely ‘erased’ from history,” Paim said in defense of his amendment.
In the draft, Weverton says there have already been “great discussions” about holding a president accountable for the actions of previous administrations. “The best reading of the Constitution seems to be that re-election does not absolve the person re-elected from wrongdoing committed during the previous term,” the rapporteur wrote.
At the end of 2015, when he decided to proceed with the impeachment of Dilma, the Speaker of the House at the time, Eduardo Cunha, excluded from the request for testimony events prior to the current mandate of the head of government.
“I left aside the (facts) of the previous term because I thought it was not appropriate. Because, if I was not re-elected, how would I be punished? Because the only sanction is the loss of my position,” Cunha told the reporter. “Now, if that clearly establishes in the law that there is a specific punishment, that’s not wrong at all,” he said.
One of the main changes proposed by the initial draft of the new impeachment law is to establish a deadline of 30 working days for the presidents of the House and the Senate, depending on the authority sought by the request, to decide on the progress of the impeachment procedures. If the request is denied, members of Congress could appeal to force the process to continue.
The original plan was that this appeal could be made if it received the support of one-third of the members of the House or Senate. In the draft proposal, the rapporteur increases this number to two thirds, under the pretext that parliamentary minorities could use this instrument for the purposes of “retaliation or political intimidation”.
The measure would “prevent opportunistic attacks and ensure institutional stability in the face of the severity of the impeachment process,” Weverton wrote. The rapporteur also said in the draft that the deadline of 30 working days is too long and accepted a suggestion to halve it.
The project discussed in the Weverton report is that of the former president of the Senate, Rodrigo Pacheco (PSD-MG). The text provides general rules for the indictment of various authorities, such as ministers of state, ministers of the STF (Federal Supreme Court) and commanders of the armed forces, in addition to the Presidents of the Republic.
The proposal is for 2023, but it returned to the Senate after the Minister of the STF, Gilmar Mendes, decided that only the Attorney General of the Republic could present requests for dismissal against members of the court, thus protecting the magistrates.
Current law allows anyone to submit such requests, and gives the Senate President the prerogative to initiate the procedure or not. In practice, Gilmar’s decision reduced the power of the House leader, who was not previously dependent on the PGR to initiate the dismissal of a minister.
The minister’s decision provoked a strong reaction in the Senate. After negotiations with House leaders, the minister backed down.
The project discussed by the senators provides that requests for impeachment can be presented by political parties represented in Congress, by the OAB (Brazilian Bar Association), by professional associations and by popular initiatives with at least 1.56 million signatures at the federal level.
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