The conflict surrounding the impeachment of the federal deputy (-SP), determined by the (Supreme Federal Court), but denied by the Chamber in the early hours of this Thursday (11), is due to the possibility of more than one constitutional interpretation on the subject, according to experts heard by the Sheet.
They mention that both the discussion of the matter in the plenary and the determination by the House Bureau were possible in the parliamentary scenario, since the case is compatible with two sections of the Constitution, each with different rules. They point out, however, that the scenario tends towards revocation, since the parliamentarian had her political rights suspended.
Zambelli was revoked by the STF due to a conviction that was final and unappealable in court. In the early hours of this Thursday, however, the Chamber took the matter to the plenary and.
On the same day, the Minister of the Supreme Court stated in a decision that “it is the Judiciary who determines the loss of the parliamentary mandate criminally convicted with final and unappealable judgment, and it is up to the Board of, under the terms of §3 of article 55 of the Federal Constitution, only to DECLAR THE LOSS OF THE MANDATE, that is, to issue the linked administrative act”.
He called the session in the Chamber null, “due to evident unconstitutionality, showing both disrespect for the principles of legality, morality and impersonality, as well as flagrant deviation of purpose.” Therefore, he determined the inauguration of the deputy of the parliamentarian.
According to Alberto Rollo, a specialist in electoral law, the deputy’s case was able to go to the plenary because it falls under two sections on loss of mandate present in the Constitution, one on revocation due to suspended political rights and the other on a criminal conviction that has become final and unappealable.
“The difference is that, in one of them, the decision is made by the Chamber. In the other, the plenary decides.” For the expert, faced with this double possibility, Motta applied the device that interested him politically, taking the topic to the plenary.
For Rollo, the Chamber’s decision, however, is contestable on the grounds that parliamentarians with their political rights suspended, in the case of Zambelli, cannot exercise their mandate.
According to the expert, this is what influenced Moraes’ decision. “The minister understood that the Chamber had no other way than to decide to lose his mandate, because there is no deputy without political rights.”
According to Ricardo Gueiros, law professor at Ufes (Federal University of Espírito Santo), the case technically presents a conflict of constitutional interpretations. “However, Minister Alexandre de Moraes’ decision follows the most recent line of STF jurisprudence. The consolidated legal understanding is that, when the conviction imposes a closed regime and the suspension of political rights, as was the case, the loss of mandate is an automatic and logical consequence of the sentence”, he says.
“It doesn’t seem to make much sense for the Chamber to vote to keep in office a person who is on the run in another country and sentenced to prison, as he has lost the basic requirements for exercising the role. In this scenario, the role of the Board of Directors should only be to declare the loss of the mandate (declaratory act), and not submit the case to the plenary as if it were a political choice.”
Gueiros points out that, with Moraes’ decision, the president of the Chamber, Hugo Motta (Republicanos-PB), can comply with the court decision and swear in the substitute within 48 hours, recognizing the authority of the Supreme Court, or confront the STF, “which could generate criminal consequences for disobedience for the Board of Directors itself”.
Welington Arruda, master in law and justice from the IDP (Brazilian Institute of Education, Development and Research), understands that the interpretation has been adopted by the Supreme Court that the loss of mandate is a direct consequence of the conviction and that it is up to the Chamber Board to simply declare the vacancy, without a new political decision from the plenary.
“When the Chamber takes the case to a vote and decides to maintain the mandate, it adopts another reading – close to what the Second Panel used in the case [do ex-deputado] Nelson Meurer – according to which it would always be up to the plenary to decide. It is precisely this clash of interpretations that is at the heart of today’s crisis.”
The expert claims that there are important precedents, such as the cases of Natan Donadon, Paulo Feijó and Meurer himself. In the case of former Natan Donadon (PMDB-RO), the STF ordered the arrest of the parliamentarian in 2013 due to conviction for gang formation and embezzlement. The Chamber took the case to the plenary, which maintained the parliamentarian’s mandate. Donadon, however, was removed from office by the then president of the Chamber, Henrique Eduardo Alves. He was later revoked following a procedure opened at the Ethics Council.
“In some cases, the STF defended the automatic loss of mandate in the event of a sentence in a closed regime. In others, the idea prevailed that the final decision is made by the Chamber. What is unprecedented now is the combination of factors: a convicted deputy, imprisoned abroad, whose impeachment was not approved in the plenary, and a Supreme Court minister who then annuls this political decision and directly imposes the loss of mandate”, says Arruda.
According to him, now the Board of the Chamber can, in theory, comply with the order, declare the vacancy and communicate to the TSE (Superior Electoral Court) to summon the substitute. She can also appeal to the STF itself, asking the plenary to reassess the limits of this automatic loss of mandate. “Until then, the tendency is for institutional tension to increase if there is resistance to complying with the decision”, says the expert.
