A possible veto by President Jair Bolsonaro to the bill that revokes the National Security Law and provides for punishment for those who violate the democratic rule of law could lead to the emptying of ongoing inquiries in the STF (Supreme Federal Court) against allies of the head of the Executive.
The text, which was approved by the Chamber and is under discussion in the Senate, adds to the Penal Code several crimes against democracy and revokes the 1983 legislation, in force since the military dictatorship.
Jurists have warned congressmen of the risk that the approval of the law, without a prior agreement with Bolsonaro, would generate the legal phenomenon known as “abolitio criminis”.
This occurs when a criminal type no longer exists in the legal system and its automatic consequence is the decriminalization of that conduct for past facts.
Lawyers differ, however, on when this risk could materialize.
On the one hand, there are those who say that Bolsonaro’s veto would cause the conduct to be decriminalized immediately. On the other hand, however, there is the understanding that the overthrow of the veto by Congress would prevent the abolition of crimes, a translation into Portuguese of the Latin name of the legal phenomenon.
This, however, would only be valid if the Legislature overturns the veto within 90 days, the deadline for the new law to enter into force.
This is also the interpretation that Minister Alexandre de Moraes has defended in private conversations with congressmen.
The thesis prevents Bolsonaro from being able, in one stroke, to empty the inquiries of fake news and anti-democratic acts, which are conducted by Moraes and target the president’s allies.
However, even in this scenario, the STF would have to move politically and initiate negotiations with deputies and senators to speed up voting on the issue.
In addition to pressing for speed in the analysis of the case in order to avoid the so-called “abolitio criminis”, another difficulty would be the fact that the overthrow of a presidential veto depends on an absolute majority of the two Legislative Houses, a quorum greater than the simple majority required for approval of the bill.
Discussion of the National Security Law has gained traction in recent months among both supporters and critics of the federal government.
This is because the Executive started to use the rule recurrently to initiate inquiries against critics of Bolsonaro and the STF used the legislation to investigate allies of the head of the Executive.
Bolsonaro’s allied parties and opposition parties sued the Supreme Court for the same purpose: to ask for the declaration of unconstitutionality of the entire law.
In private conversations, however, court ministers rule out invalidating all the legislation precisely because of the risk of not having criminal types to criminalize Bolsonaro’s allies who defend the closing of Congress and the Supreme Court and call for the return of AI-5, the toughest act of the dictatorship military and who deposed three members of the Supreme Court at the time.
The actions on the subject are in the hands of Minister Gilmar Mendes and have no date to be judged. As the discussion of a new law took place quickly in the Chamber, the Supreme Court began to prefer that Congress discuss the issue before passing judgment on it.
In the Senate, however, which gained prominence with the installation of Covid’s CPI, the analysis of the project has not been moving at the same speed and there is no forecast of when the House will have a definitive decision on the matter.
The issue reached the Senate in early May after the Chamber approved a text that determines the repeal of the current law and creates new types of criminal offenses for those who violate the democratic rule of law.
The current legislation has 35 articles, but only a few of them have caused discomfort in the Supreme Court, and not only for the content of the rule, but also for the way the current government has used it.
The analysis made in reserve by ministers is that the federal government has given a very expansive interpretation, for example, to article 26, which sets a penalty of 1 to 4 years in prison for anyone who slanders the head of one of the three Powers.
In addition, an article published by leaf showed that the Federal Police opened 77 inquiries based on the law in 2019 and 2020, a number that surpasses the one registered in the previous four years, when the corporation initiated 44 inquiries.
Criminal lawyer and master of criminal law, Ruiz Ritter says that Bolsonaro’s eventual veto is a sensitive issue and that the consequences of a mismatch between Congress and Executive’s aspirations for the new legislation “deserves better attention”.
“The entry into force of the new National Security Law with the president’s vetoes may create a legislative vacuum in relation to practical unlawful conduct under the revoked law, a situation that does not change later, even if such vetoes are overturned, due to the legal phenomenon known as abolitio criminis,” he says.
Attorney and law professor Carolina Costa says she believes that the discussion should still take some time in the Senate and postpone the project’s departure for approval by Bolsonaro.
However, if approved, she claims that the problem would be in a scenario of partial veto by the president. “If the partial veto is for the total repeal of the current law, without filling in the protection of these legal assets, I think there would be abolitio criminis”, he says.
Carolina defends the need for a law to ensure the defense of the democratic rule of law and criminally typify the actions of groups that act against democracy.
She claims that Bolsonaro’s partial veto of new legislation on the subject, however, would create a peculiar situation. “A probable veto to the law for the defense of the democratic rule of law, without the criminal protection of the legal assets protected there, would create a sui generis situation, insofar as the discussion carried out both in Congress and in the STF is quite complex.”
Criminal lawyer Luís Henrique Machado, in turn, claims that the abolitio criminis it can only happen if Congress does not overturn any vetoes by Bolsonaro. “I don’t see a problem in practice, not least because nothing prevents the Legislature from overturning the veto, in addition to the fact that the law only comes into force after 90 days.”