In the event that it actually approves a rule by altering the Clean Record Law to decrease that from eight to two years, a precedent of the (Supreme Court) indicates that the Court would have to go against its previous understanding to veto that the former president () Benefit from the change.
This is because, if the project is actually approved, it should generate a discussion as to whether or not the rule may be applied retroactively to proceedings judged still under a previous rule.
The hypothesis in which the Supreme would not have to look over this aspect would be whether, before, the Court dismissed action on the eventual new law, declaring it unconstitutional.
In 2017, in one, the court. Even for cases where the conviction occurred before the new law was entry into force. At that time the score was tightened: 6 votes to 5.
With the new law, the punishment for politicians convicted of abuse of power in the electoral sphere went from three to eight years of ineligibility – the date of the election in which the irregular conduct occurred.
Condemned by the (Superior Electoral Court), one on a meeting with ambassadors and another on the acts of September 7, 2022 ,. Nevertheless, he follows.
In addition to the front that tries, another path adopted by his allies to seek to reverse his ineligibility is presented in 2023 by Federal Deputy Bibo Nunes (PL-RS), trying to reduce the punishment period to two years.
Last December, Deputy Filipe Barros (PL-PR) was appointed rapporteur of the proposal in the Constitution and Justice and Citizenship Commission.
The project would make the punishment for abuse even milder than the rule prior to the clean record. And, depending on the election dates each year, the candidate could eventually not be prevented from running a claim.
The newly deposed president of, (Republicans-PB), made statements in interviews throughout the week in which he referred to the current period of eight years as “” and “”. He also said that, being the interest of parliamentarians or some party, Congress would discuss the theme.
This Thursday (6), Bibo Nunes posted a photo of meeting with Bolsonaro referring to the project and saying that “eight years is time that allows a lot of injustice”.
If the change desired by the pockets are carried out, even if the decision declaring Bolsonaro ineligible will move res judicata – which has not yet occurred, because there is a pending appeal – following the logic of understanding adopted by the Supreme in the past, he could still be benefited by the new rule.
Anna Paula Oliveira Mendes, academic coordinator of Abradep (Brazilian Academy of Electoral and Political Law), says that, as it is not a criminal but electoral action, the understanding of whether or not the law could retroact would depend on the interpretation of the Supreme.
“The doctrine preaches that ineligibility is a pity, it is a sanction. So you could not apply a more serious new law. But the STF understood that not, which was a side effect of a condemnation,” he says.
It highlights, on the other hand, that the composition of the court is currently another and also the context.
Luiz Gustavo de Andrade, Secretary-General of Abradep and lawyer, states that, despite considering the project under discussion a setback and disagree with the understanding adopted by the STF in the past, he understands that, if approved, the proposal would apply to Bolsonaro.
For him, although the composition of the Supreme is now another, by legal consistency, it would be to apply the same understanding
“If at that time the Supreme said that he applied retroactively to harm, it seems to me that with much more reason he applies retroactively to benefit,” he says.
Carla Nicolini, a lawyer specializing in Electoral Law, stresses that, while the previous decision of the Supreme Court had a moralistic content of improving the quality of those who could compete for public positions and meet the popular clamor that also guided the clean sheet, now There is a reverse question. “That’s why I think it can change its own jurisprudence,” he says.
It defends the position that, if approved, the law would be unconstitutional, under the understanding that it would go against public morality, with a penalty that in practice has no function.
If a law decreasing the ineligibility period is passed, the Supreme could have to comment on Bolsonaro’s specific case in different situations.
One is if he submit a registration of the TSE candidacy for the 2026 election. Thus, depending on the analysis of the Electoral Court, an appeal could reach the Supreme Court.
Another hypothesis is, if your conviction for ineligibility has not yet finalized, your defense petitions in the Supreme stating that there is a new law and that Bolsonaro would have already complied with the deadline.
The STF would not have to evaluate retroactivity if the eventual new law is questioned and is declared unconstitutional before.
