- Matheus Magenta
- From BBC News Brazil in London
In his extensive list of attacks and threats to the Brazilian democratic system, President Jair Bolsonaro (non-party) told supporters during the September 7 acts that he would not comply with any court decisions made by Minister Alexandre de Moraes, of the Federal Supreme Court (STF). ).
“To tell you that any decision made by Mr. Alexandre de Moraes, this president will no longer fulfill. Our people’s patience has already run out. He still has time to ask for his cap and go about his own business. He, for us, do not exist anymore.”
Moraes is responsible for inquiries in the Court that investigate supporters, family members and the president himself for suspicions such as participation in undemocratic acts, the dissemination of false information and the leakage of confidential information.
Bolsonaro could end up a target, for example, of searches and seizures. In addition, people close to the president claim, according to several reports in the Brazilian press, that he fears that his son Carlos, a councilor in Rio de Janeiro, will end up being arrested.
In August, Bolsonaro mocked ministers Alexandre de Moraes and Luís Roberto Barroso about investigations opened against him in the STF and in the Superior Electoral Court (TSE), in this case for an unfounded attack on the electronic ballot box.
“Look at what the gown dictatorship is. What two ministers are doing at the Supreme Court, Barroso and Alexandre de Moraes. They’re going to investigate me. Will they pass me a sentence? Search and apprehend the Alvorada as they do with the common people there ? Will they do that? Who will they send: the PF or the Armed Forces?
After all, what can happen to a President of the Republic who decides to fail to comply with a court decision in Brazil?
According to three experts interviewed by BBC News Brasil, he could be accused of two crimes: one common and the other of responsibility. In theory, both could lead to Bolsonaro’s removal from the Presidency of the Republic.
There is, finally, a third indirect consequence of a possible non-compliance with a court order: the convenient acceleration of the judgment that could lead to the dismissal of the Jair Bolsonaro-Hamilton Mourão ticket by the TSE for economic abuse in the 2018 election.
“Failure to comply with a court decision may be the missing piece to collapse the house of cards that sustains the president in office,” says criminal lawyer Davi Tangerino, law professor at FGV-SP and UERJ.
1. Disobedience: common crime
The Federal Constitution provides the bases that could guide actions against Bolsonaro if he refuses to comply with a court decision.
Article 86 explains that a president of the Republic can be accused of both a common crime and a crime of responsibility, but both, if they occur, would proceed in different ways under a special accountability regime of the head of the Executive Power.
“A president of the Republic does not have total immunity, but for whom accountability happens, the Chamber of Deputies must act in both cases”, explains constitutionalist Eloísa Machado, professor and researcher at FGV-SP.
In the case of a common crime, Bolsonaro could end up accused of disobedience, provided for in Article 330 of the Penal Code. According to the text, it is about “disobeying the legal order of a public official”. The penalty provided is from 15 days to six months of imprisonment and a fine.
But how would this process take place? First, the Attorney General of the Republic would need to file a complaint with the STF, accusing the President of the common crime. But the current PGR, Augusto Aras, has adopted actions and postures considered as a kind of protection for Bolsonaro.
But if he files the complaint, the case would then be referred to the Chamber of Deputies. There, the president of the House, Arthur Lira (PP-AL), would not have the power to block the action as with impeachment requests, but the progress of the investigation would also need to be endorsed by at least three-fifths of the deputies, or 342 votes of the total of 513.
One of the objectives of this institutional design for the processing of the process is to protect the president from possible undue persecution by the Public Ministry and the Judiciary.
If the Chamber approves the progress of the case, the process is referred to the plenary of the Supreme Court, which then decides whether to become the defendant President of the Republic. If the 11 ministers decide to do so, he is removed from office for 180 days.
If he is acquitted in any case, he takes over the country’s command.
For Tangerino, from FGV-SP, the fact that the crime of disobedience has less offensive potential would serve as a “gasoline” for a pocket-sized argument for judicial persecution, if such a process prospers to the point of leading to his removal. According to him, the most suitable thing for the country’s democratic regime would be to remove Bolsonaro for a crime of responsibility, if he fails to comply with a court order.
2. Refusing to comply with the decisions of the Judiciary: liability crime
The second type of imputation to Bolsonaro if he fails to comply with a court order would be a crime of responsibility, detailed in the so-called Law of Impeachment (n. 1.079/50).
Article 12 of this law lists four types of crimes against compliance with judicial decisions, including “preventing, by any means, the effect of acts, orders or decisions of the Judiciary Power” and “refusing compliance with the Judiciary Power’s decisions in which depend on the exercise of the functions of the Executive Power”.
In that case, anyone could file a motion for impeachment against Bolsonaro in the Chamber of Deputies, but progress would depend on the political will of the Speaker of the Chamber, Arthur Lira. There are more than 100 requests awaiting his analysis, but so far he sees no legal basis for proceeding with any of them.
It remains to be seen whether the same would happen with the non-compliance with a court order of the STF.
If Lira proceeds with the request to initiate impeachment proceedings, the procedure would be similar to that of Dilma Rousseff. The removal from office would need the support of 342 of the 513 deputies, and the definitive exit would depend on equivalent support in the judgment in the Federal Senate.
For constitutional lawyer Vera Chemim, the case would lead to serious institutional instability in the country, but it would probably not advance in the Chamber because Bolsonaro is near the end of his term. “The tendency is for them (higher court magistrates and parliamentarians) to tolerate these attitudes of the president until the election. Unless he commits a very serious act, then it is not possible to predict what might happen.”
Bolsonaro’s threat raises several doubts because there is no precedent for the head of power to refuse to comply with judicial decisions in the country’s recent history. In 2016, the then president of the Federal Senate and today Bolsonaro’s opponent, Renan Calheiros (MDB-AL), came close to that.
He refused to be notified of an injunction by then-STF minister Marco Aurélio Mello that would lead to his removal from office. The case led to an institutional impasse, but before the non-compliance with the court decision could actually materialize, the plenary of the Court overturned the minister’s decision and guaranteed Renan’s permanence in office.
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