The Brazilian Chamber of Deputies approved this Wednesday the 13th the Constitutional Amendment Proposal (PEC) 15/2022, the so-called “PEC de Auxílios”. The text authorizes the government to create and increase social benefits in an election year.
The PEC received favorable votes even from opposition parliamentarians, concerned about the effects of the crisis in the country. However, these parliamentarians unsuccessfully tried to remove from the text of the PEC the sections that provide for the installation of a “state of emergency”.
According to the government, the context of exception was created by the increase in fuel prices in Brazil and justifies the extra payments from the government months before the elections, which is prohibited by law. However, for opponents of the government of President Jair Bolsonaro and jurists listened to by Brasil de Fato, the state of exception can open space for other measures for electoral purposes and even authoritarian measures in a year of political turbulence.
“It is possible to expect anything from this government,” said Rodrigo Kanayama, doctor in State Law and professor at the Federal University of Paraná (UFPR). “The government has been making threats and the possibility of a rupture today is real. The state of emergency is a new card on the table. If it will be used, I don’t know.”
The jurist and professor Lênio Streck, professor at the Brazilian Academy of Constitutional Law (ABDConst), confirmed the risk pointed out by Kanayama. “If someone had asked me about the risks to democracy two years ago, I would have said they didn’t exist. Today, after this PEC, nothing would surprise me,” he said.
Streck explained that the state of emergency created by the PEC is a kind of state of exception not provided for in the Constitution currently in force in the country. The constitutional text provides only for the state of defense and the state of siege. He also describes what each of these states provides for and determines clear criteria for their implementation.
The state of defense, for example, can be decreed by the president after consultation with the Council of the Republic and the National Defense Council. It restricts assembly rights, telephone secrecy, and even authorizes the government to use private assets for the public interest.
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In the case of the state of emergency, since it is an unprecedented legal figure, it is not known exactly what rights it grants to the government and the president. According to the PEC, today it authorizes the payment of benefits in an election year. Included in the Constitution, however, there is the possibility that it may be invoked to justify other measures.
“The PEC text is not threatening at all,” Kanayama explained. “But by including a state of emergency in the constitution, this could be used not only as a pretext to guarantee people’s income, but also for security. I don’t know.”
Is the PEC unconstitutional?
Streck asserted that an amendment, by definition, changes the Constitution. This does not mean, however, that it will always be constitutional.
He recalled that article 16 of the Constitution establishes that the rules of an election can only be changed one year before the vote. The Aid PEC authorizes extraordinary payments months before the elections and, according to Streck, violates that article. In theory, therefore, it could be considered unconstitutional if challenged in court.
Streck also highlighted that the right to vote and individual guarantees are guaranteed in the rock-solid clauses of the Constitution, which cannot be changed. Therefore, it would be illegal to use the PEC to violate these rights.
Kanayama also believes that this PEC is legally challengeable. He stressed, however, that at this time it plays a strategic role for the government, authorizing with articles in the country’s most important law the payments that Bolsonaro wants to make.
“The PEC is a shortcut created by the government so as not to have to change other laws and resolve the issue,” he explained. “It’s easier to fight on one front in Congress. But it seems completely inappropriate to me.”
Editing: Thalita Pires and Flávia Chacon