Prepared by the Lula government in a lean eight-page text, with the aim of expanding the Union’s role in coordinating actions against crime, the Proposed Amendment to the Constitution (PEC) for Public Security should emerge “more robust and bold” from the Chamber of Deputies. The qualification was given by the proposal’s rapporteur, deputy Mendonça Filho (União-PE), who plans to finalize the opinion by December 4th with a series of additions.
Among the most controversial points is the inclusion of a device to prevent the regime from progressing to “supercrimes”, such as crimes against life, rape followed by death and belonging to factions. In the Antifaction project, reported by deputy Guilherme Derrite (PP-SP), there is a similar instrument that provides that members of criminal organizations can only receive criminal benefits after serving 85% of the sentence.
“In the PEC, it will be 100%, zero progression. By passing a PEC, this device would have less chance of being considered unconstitutional”, said Mendonça.
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In 2006, by 6 votes to 5, the Federal Supreme Court (STF) declared unconstitutional the article of an ordinary law that prohibited the progression of heinous crimes.
The rapporteur argues that this could be the same fate as the device in the Antifaction project. Therefore, he defended its inclusion in the constitutional amendment.
Another controversial measure being discussed by the top of the PEC special commission is the institution of life imprisonment for crimes considered “super-serious”. The measure is supported by the president of the commission, deputy Aluísio Mendes (Republicanos-MA).
“It’s Mendonça’s and my idea. This would be applied to super-heinous crimes, such as in cases of femicide when a mother is killed in front of her child, a factional crime with massacres and triple homicides”, stated Mendes.
The proposal’s rapporteur confirmed that he received the request, but avoided saying whether or not he will include it in his final report.
To guard against possible questions in the Supreme Court, the idea is to include the provision of life imprisonment in the Constitution conditioned on a referendum among the population, which would be consulted in the 2026 elections whether they approve the idea or not.
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“We would send it to the population to decide. It would be for crimes classified as above heinous”, added Mendes.
The Ministry of Justice is against these additions, but the text is now in the hands of the National Congress. If it is approved in the Chamber and the Senate, the PEC comes into force without being vetted by the Executive. In other words, President Luiz Inácio Lula da Silva would not have the right to veto, as is the case with bills.
The Public Security PEC is being processed in parallel with the Anti-Faction bill, whose vote is scheduled for next week. There is a perception among opposition parliamentarians that more controversial issues should be removed from Derrite’s PL and placed in the constitutional proposal.
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Mendonça Filho has also indicated that it should include the possibility of executing the sentence after confirmation of the conviction in the second instance. Today, the sentence is only served after the final judgment, that is, when there is no longer any chance for the defendant to present appeals.
The measure also runs the risk of colliding with the Supreme Court due to the fact that the presumption of innocence is considered a “stone clause” of the Constitution.
The original proposal
The essence of the PEC is to expand the role of the federal government to formulate policies in the area and provide more instruments to coordinate them. To this end, the text alters articles of the Constitution that define the competence of each branch in public security.
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Furthermore, it also includes the Unified Public Security System (Susp), which has been in force through an ordinary law since 2018, in the Constitution, as is the case with the Unified Health System (SUS) and the National Education System.
In Lewandowski’s view, this will give more strength to police forces to act in an integrated manner with a database and standardized procedures — which does not happen today.
Creation of the Federal Highway Police
In article 22, the PEC replaces the term “federal road and railway police” with Federal Road Police. In this way, the federal government would create the first ostensible police under its jurisdiction, since the Military Police are subordinate to the states. The new corporation would start patrolling waterways and railways, in addition to highways.
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Expansion of the prerogatives of the Federal Police
The text also increases the scope of action of the Federal Police, expressly saying that the body will be able to investigate crimes related to damage to the environment and “private militias”.
Duties of Municipal Guards
The federal government also establishes the duties of the Municipal Guards based on the new understanding of the Federal Supreme Court (STF) that its agents can carry out “ostensible policing”. This measure was added to the text in January and has broad support from the political class.
Internal Affairs with functional autonomy
The PEC also creates internal affairs bodies with “autonomy” that will have the function of “ascertaining the functional responsibility of professionals from public security and social defense bodies, which will be the responsibility of the internal affairs bodies, through investigations and administrative disciplinary processes”.
Constitutionalization of Funds
The text also provides for the inclusion of the National Public Security and National Penitentiary Funds with the aim of “guaranteeing resources to support projects, activities and actions in these areas”, in addition to prohibiting the contingency of resources.
