New impeachment law indicates crime of military responsibility

New impeachment law indicates crime of military responsibility

The PL (Bill) 1.388/2023, which creates a new law for impeachment in Brazil, determines actions that will be considered crimes of responsibility for the military. Among them, expressing opinions on “political-partisan” themes or participating in demonstrations.

The text authored by the Senate President, Rodrigo Pacheco (PSD-MG), began to be analyzed by the CCJ (Commission on Constitution and Justice) of the House. Originating from a commission led by the then minister of the Supreme Court (Supreme Court), Ricardo Lewandowski, the text proposes an update of the impeachment rules.

The text began to be discussed at the CCJ in September. The rapporteur, Senator Weverton (PDT-MA), expects to vote on the bill in the Senate by the end of the year.

The theme returned to the center of attention of senators, especially the opposition, after the speech of the Minister of the Supreme Court (Supreme Court) Roberto Barroso at the 59th Congress of the UNE (National Union of Students), held in Brasilia (DF), in July. The minister said that Brazil would have defeated bolsonarism. Opposition congressmen called for the impeachment of the minister. However, despite disagreeing with the speech, Pacheco signaled that he would not forward the request.

If approved in the Senate, the text will still need to be evaluated by the House of Representatives in order to become law. As the project limits the powers of Arthur Lira (PP-AL), the text must face difficulty in processing in the House, even if it is Pacheco’s initiative.

The internal regulations of the Senate already talk about the possibility of the Armed Forces commander, being tried for crimes of responsibility by the Upper House. The provision in law is in Article 52 of the 1988 Constitution.
However, the constitutional text does not bring what the crimes of the military would be. It only indicates that the trial can be carried out in the “crimes of the same nature related” with the crimes of responsibility of the president and the vice president.

The text presented by Pacheco, on the other hand, specifies that, in addition to the actions linked to the acts of the Executive Branch, the commanders of the Armed Forces can also be judged for their own conduct, without connection with the president.

The lawyer and professor at USP, Heleno Torres, said that the main point of this part of the project is the typification of what would be the crime of the military responsibility. According to him, although the Constitution indicates the impeachment for the commanders in article 52 and prohibits the party-political participation of the military in article 142, it is necessary to typify the crime of responsibility for the impeachment process.

“The imputation, the typification of a crime has to come through a law,” said Torres. “Without a law, even if it already has the forecast of impeachment, there may be problems in the application, in the process.”

For the lawyer -who was part of the commission that proposed the new impeachment law, Article 52 of the Constitution is vague about the impeachment of ministers and commanders. Torres states that the project individualizes actions that can be considered crimes of responsibility and specifies how the impeachment process of commanders of the Army, Navy and Air Force should be.

If the project is approved, the rules do not retroact, according to Torres. The Constitution ensures that “the criminal law will not retroact, except to benefit the defendant”. Thus, the processes can only be opened with actions or manifestations carried out after the enactment of the new law.

IMPEACHMENT TARGETS

With the current law of impeachment (1,079/1950), the President of the Republic, his ministers, the ministers of the Supreme Court, the Attorney General of the Republic, the governors and the secretaries of State can be prevented. Article 52 of the Constitution also includes the commanders of the Forces, but with the new project, the list of possible targets is greater.

With the text proposed by Pacheco, the following may be prevented:

• The president and vice-president of the Republic;
• The Ministers of State;
• The commanders of the Navy, Army and Air Force
• The ministers of the Supreme Court;
• The members of the CNJ (National Council of Justice) and the CNMP (National Council of the Public Prosecutor’s Office);
• The Attorney General of the Republic;
• The Advocate General of the Union;
• The ministers of the Superior Courts;
• The ministers of the TCU (Union Court of Auditors);
• The heads of diplomatic missions of a permanent nature;
• The governors and deputy governors;
• The secretaries of the States and the Federal District;
• Judges and judges of the Courts of Justice;
• Judges and members of the Military Courts and the Federal, Electoral and Labor Regional Courts;
• Members of the Audit Courts;
• Members of the Public Prosecutor’s Offices of the Union, the States and the Federal District.

According to the bill, the crimes that are provided for in the law are intentional crimes of responsibility, whether or not they have been successful.

PROCESSING IN THE SENATE

The text has already been the subject of a public hearing, with the presence of Lewandowski and other members of the commission that proposed the update of the device. During the session, senators criticized the fact that mayors were not on the list of possible impeachment targets.

Weverton states that he should include the mayors in the proposal. “Certainly an amendment will be presented in this regard and I will take advantage of it. Not least because if the rule is for the governor, for the minister, for a prosecutor, it makes no sense for a mayor a capital or of any municipality to also submit to a crime of responsibility,” he said.

Two more public hearings are planned on the new impeachment law in the CCJ.

Weverton states that, as the subject is complex and of great importance to the Powers, there should be a broad discussion in Congress. Currently, there are already 60 amendments presented by senators to the project.

In his justification for the proposal, Pacheco states that the 1950 law is “lacunus, incomplete and inadequate” and thus needs to be replaced. The current text predas the 1988 Constitution.

Credits: Power 360.