Supreme Court corrects its senior member. It is Congress that revokes mandates.
On Thursday, the Supreme Federal Court corrected a shameful error by Justice Celso de Mello in the trial of Criminal Action 470, when he decided that the court had the power to impeach parliamentarians; now, with the new composition of the STF, with Justices Teori Zavascki and Luís Roberto Barroso, common sense and the separation of powers prevailed; the decision favors parliamentarians José Genoíno (PT-SP), João Paulo Cunha (PT-SP), and Valdemar Costa Neto (PR-SP), convicted in the case, who will only be impeached by a decision of the Legislative branch.
247 - With two new justices, Teori Zavascki and Roberto Barroso, the Supreme Federal Court (STF) has changed its understanding of who has the authority to decide the fate of a parliamentarian convicted in court. It will now be up to Congress to decide. The vote is a defeat for justices such as Joaquim Barbosa, president of the Court, and Celso de Mello, the longest-serving justice, who wanted the immediate loss of mandate after a conviction. The decision was made in the analysis of a criminal case against Senator Ivo Cassol, sentenced to 4 years and 8 months in prison. And it could alter the judgment of appeals by those convicted in AP 470, known as the mensalão scandal.
Last year, the justices decided by a five-to-four vote that the loss of office would be automatic after the final judgment of the case (when the defendant no longer has a chance to appeal). Justices Joaquim Barbosa, Luiz Fux, Gilmar Mendes, Marco Aurélio Mello, and Celso de Mello voted this way; Ricardo Lewandowski, Rosa Weber, Cármen Lúcia, and Dias Toffoli voted against.
In the new analysis of the topic this Thursday (8), the Supreme Court decided by six to four that it is up to Congress to decide. The four who understood last year that the final word belonged to Congress, maintained the decision and were joined by Zavascki and Barroso. Of those who had voted for the judicial decision to lead to the loss of office, only Fux did not vote because he was not present at the session. The topic should be discussed again by the Supreme Court next week, in the judgment of the appeals of the 25 convicted in the mensalão.
In Thursday's discussions, there was disagreement regarding the interpretation of two articles of the Constitution – article 55, which establishes that, in the case of a deputy who "suffers a criminal conviction in a final and unappealable judgment," the loss of mandate "will be decided by the Chamber of Deputies or the Federal Senate, by secret ballot and absolute majority"; and article 15, which establishes that the loss of political rights will occur in the case of "a final and unappealable criminal conviction, for as long as its effects last."
Barroso said that, although he considers the loss of office to be ideal, the Constitution does not allow it: “that the conviction would imply the loss of office would be the ideal solution. Nevertheless, I find an obstacle in article 55 of the Constitution. It would be incongruous [to say that it is automatic]. This was established by the constituent assembly.”
Joaquim Barbosa pointed out that it is up to the Supreme Court to interpret the Constitution and that it would be incongruous to keep a convicted parliamentarian in office. "It is the duty of this Court to decree the loss of office. How can he serve a sentence and hold office at the same time?", he said.
Barroso said that one cannot contradict the Constitution. "It's in the Constitution. I regret that this provision exists. But it's here. I share Your Excellency's perplexity. But the Constitution is not what I want, it's what I can do with it."