PEC is unconstitutional and should be questioned before the election, says expert

The PEC (proposed amendment to the Constitution) of the State of Emergency, also known as “PEC Kamikaze”, approved in the Senate this Thursday (30th) is unconstitutional and should be barred by the STF (Supreme Federal Court), says lawyer Alberto Rollo, specialist in Electoral Law.

To prevent President Jair Bolsonaro (PL) from benefiting from the proposal that tramples on electoral legislation, the best way would be to challenge the device as soon as it is enacted by Congress.

Questioning after the elections —or the release of the planned money— could lead to the cancellation of the candidacy registration or diploma, in the event of re-election, but this would be a less likely decision, assesses the expert, as the president could claim that he acted good faith and based on current legislation.

See the main excerpts from the interview.

unconstitutional PEC

If approved, it will be an unconstitutional PEC. It is an artificially created state of emergency. if [o governo] suspended the public calamity decree, it is because there is no emergency now regarding the pandemic. State of emergency and public calamity, for the purposes of a pandemic, are the same thing. Regarding the war, she is already four months old. So it’s a fabricated emergency.

Increase in aid without PEC

Why was this emergency fabricated? Then we go into electoral law. Paragraph 10 of article 73 says that benefits cannot be granted except in cases of emergency, public calamity, there are exceptions there. Even with the exception of an existing social program. The increase in the amount of the social program is contemplated there. To increase from R$ 400 to R$ 600, you don’t need a PEC. The law says it can increase. There is case law from the TSE itself, because it is not creating a new program. PEC wants more. It’s not just about increasing the social program. They want to create a new program, for truck drivers, for taxis, they want to do new things, when the law expressly prohibits them.

Who will question the Supreme Court?

So he makes a PEC to say that he is above the law, that the electoral law is not valid. There is a very flagrant deviation of purpose that contaminates this PEC. This has to be questioned in the STF. The opposition will not do that, because it cowardly voted to approve the PEC. Will Lula question? Of course. But there is a political agent that has to act, which is the Public Ministry. Then the Supreme Court will decide. Ministers can decide that Congress has the right to declare an emergency and that, if declared, the electoral law does not really apply. All right, let the STF say that. But someone has to provoke. The prosecutor has an obligation to act. We will see. Who knows, he might not surprise and do something. An ordinary citizen cannot, but some entities can also [questionar a PEC].

before the election

The ideal would be to question before the elections. It is possible to request an injunction to stop this conduct immediately. It could be later. Then it will say that there was a practice of prohibited conduct to want the revocation of the registration or diploma if he is reelected. You will have to prove that he was a beneficiary, it is much more difficult, but it is possible to do it later too. It is prohibited conduct, and prohibited conduct, if practiced, leads to the revocation of the registration or diploma.

Good faith of the president

Let’s say it takes a long time for a STF minister to decide. Whatever is done in that period, the president can say he did it in good faith. When he practiced the act, the amendment was in effect, it was only suspended later. He did not act maliciously to circumvent the law. You will have that excuse. Anyway, you can’t deny that it was a malicious move, to circumvent the law, but intelligent, because you have the issue of emergency provided for in the law and the PEC, which is above the law. It is a step that generates doubt, generates discussion.

Will set a precedent

Now, any government official on duty will say, look, there’s an emergency because there was a flood or drought, I don’t know where, let’s create an exception to the electoral law. It’s a dangerous precedent. We have the Democratic Rule of Law undermined once again. Why does the law bring these prohibited conducts? They are from 2006 [ano da reeleição do ex-presidente Lula]. The law is from 1997, but the amendment of the device is from 2006. Congress did this to avoid casuistry, so that the ruler on duty can benefit himself. I open the public coffers. I cause a tremendous fiscal hole, but I get re-elected. That’s what the law wants to avoid.

Supreme wear

Judges are not elected. Judge must be committed to the Constitution, to the law. They’re going to fall down on the Supreme Court, ask for the ministers to be impeached. I’m sure of it. Only they are not there to be popular, but to decide according to the Constitution and the law. If they understand it’s unconstitutional, you have to suspend. If they understand that it is constitutional, it will be a diploma for the president.

X-ray

Alberto Rollo, 52

He is a partner at Alberto Rollo Advogados Associados, working in the areas of electoral law, political and party law, administrative, civil and business law.