Legal experts point to setbacks and illegality in the "Shielding Amendment" due to misuse of power.
The proposal returns to Congress the power to approve proceedings against members of parliament and could be blocked by the Supreme Court for violating constitutional principles.
247 - The Proposed Amendment to the Constitution 3/2021, known as the "Shielding Amendment," approved by the Chamber of Deputies on September 17th, reignited the debate about the limits of parliamentary immunity and the relationship between the branches of government. The approved text prevents deputies and senators from being criminally prosecuted without prior authorization from their respective legislative chambers. Furthermore, it stipulates that the vote on the imprisonment of parliamentarians be secret and expands privileged jurisdiction in the Supreme Federal Court (STF) to presidents of political parties.
Return to the pre-2001 model
The proposal recreates a system similar to the one that was in place before Constitutional Amendment 35/2001. Between 1988 and 2001, the Supreme Federal Court (STF) sent 254 requests for authorization to investigate parliamentarians, and only two progressed. Experts consulted by [publication name] ConjurThey claim that the current objective is not republican, but rather to shield allies of former president Jair Bolsonaro (PL) in proceedings related to the attempted coup d'état.
One example was the case of Congressman Alexandre Ramagem (PL-RJ), who had part of his criminal proceedings suspended by the Chamber of Deputies. Even so, the Supreme Court sentenced him to 16 years in prison for participating in the coup attempt, resulting in the loss of his mandate.
Reaction in the Supreme Court and the Senate
Supreme Court Justice Dias Toffoli has given the Chamber of Deputies ten days to comment on the progress of the proposed constitutional amendment, in response to a writ of mandamus filed by Congressman Kim Kataguiri (União-SP). Parties such as the PT, PSB, and PSOL have also petitioned the Court to suspend the proposal, citing procedural irregularities.
In the Senate, the bill will be reviewed by the Constitution and Justice Committee (CCJ). The committee's president, Otto Alencar (PSD-BA), has already indicated that the bill is unlikely to pass.
Legal experts speak of regression.
Experts consulted by ConJur point out that the proposed constitutional amendment is unconstitutional. According to Pedro Serrano, a professor at PUC-SP, "the purpose of immunity is to protect parliamentary activity, not to create an aristocracy that cannot be prosecuted for crimes it has committed."
Lenio Streck, a professor at Unisinos, added that "the proposed amendment is so unconstitutional that the doorman at the Supreme Court should declare it unconstitutional. While the average citizen is judged without any bias, the parliamentarian is privileged."
Defense of the Legislature
According to criminal lawyer José Roberto Batochio, former president of the Brazilian Bar Association (OAB), the proposal is a legitimate instrument of self-protection for Congress. "Immunity is not a privilege, but a democratic guarantee. The Legislative branch needs independence to oversee the other branches and to legislate."
He also defended secret voting in cases of arrests or proceedings against parliamentarians, comparing it to the secrecy of ballot boxes and jury trials.
Another similar initiative
In 2024, following operations against congressmen Carlos Jordy (PL-RJ) and Alexandre Ramagem, the opposition presented another proposed constitutional amendment to make searches and seizures in offices conditional on the approval of the presiding officers of the Chamber of Deputies and the Senate. Experts criticized the proposal, pointing to a violation of due process in criminal proceedings.
