Rodrigo Maia reviewed only 1 of the 27 impeachment requests against Bolsonaro.

By André Boselii, from Conjur – By the afternoon of Friday (April 24), 27 impeachment requests against President Jair Bolsonaro had been filed in the Chamber of Deputies. However, only one of them has been reviewed by the Speaker of the Chamber, Rodrigo Maia (DEM-RJ), who is responsible for conducting an initial analysis of accusations of crimes of responsibility against the head of the federal Executive branch.

This single request ended up being denied because the complaint was anonymous, which is prohibited by the Chamber's internal regulations.

The number of unanalyzed requests is particularly noteworthy because the intensity of the political crisis in Brasília has only increased. Statements made this Friday (April 24) by the resigning Minister of Justice and Public Security, Sergio Moro, could result in new impeachment requests against the President of the Republic. 

Furthermore, this Thursday (April 23), Supreme Court Justice Celso de Mello requested information from Maia regarding a writ of mandamus filed with the Court. The writ (37.083) was filed by lawyers to compel the Supreme Court to immediately consider an impeachment request they filed on March 31.

The constitutional question raised, therefore, is whether Maia should have the power to dictate the pace of any impeachment process, choosing which requests to proceed with and when to do so.

Legal experts consulted by ConJur evaluated the regulations governing the matter and concluded that there is no rule that expressly addresses the issue. 

political crisis

According to Moro, Bolsonaro dismissed the director of the Federal Police, Maurício Valeixo, because he wanted to have someone from his "personal circle [in the Federal Police] so he could call and gather intelligence reports." "The president told me he had concerns about investigations at the Supreme Court, and that the change [in the leadership of the Federal Police] would be opportune for that reason, which is a major concern," the former judge stated.

In the Supreme Federal Court (STF), Celso de Mello's decision is undoubtedly a message to the Presidential Palace. "There is a tendency to treat these issues as internal matters"—that is, matters that should be resolved internally by the Legislative branch itself—states legal expert Thomas Bustamante, from UFMG (Federal University of Minas Gerais).

Thus, by adopting a different understanding, the Supreme Court signals that the matter — the power of the Speaker of the House to review impeachment requests — can now be treated differently.

In February, the senior justice of the Supreme Federal Court had already stated that Bolsonaro may have committed a crime of responsibility. At the time, the President of the Republic had shared, via social media, a call for a demonstration hostile to the National Congress.

What do the rules say?

There are basically three normative sources that deal with impeachment: the Constitution of the Republic, Law 1.079/50 ("impeachment law"), and the Internal Regulations of the Chamber of Deputies. This is explained by the jurist Carlos Ari Sundfeld, professor at FGV-SP.

"The Constitution only provides for the institution, which is impeachment, and defines basic powers to authorize and judge [an impeachment request]. It does not define the internal procedure in the Chamber of Deputies. The 'impeachment law' also does not define the procedures," he states.

The rules regarding the handling of accusations of crimes of responsibility allegedly committed by the President of the Republic are established by the internal regulations of the Chamber of Deputies. This is specifically addressed in Article 218, paragraph 2:

Once the complaint has been received by the President, and the existence of the requirements referred to in the preceding paragraph has been verified, it will be read during the proceedings of the following session and forwarded to the elected Special Committee, in which representatives of all Parties will participate, observing the respective proportions.

Paragraph 1 of the same article establishes that the complaint must be "signed by the complainant and with a notarized signature," and be "accompanied by documents that prove it or a declaration of impossibility of presenting them, indicating where they can be found, as well as, if applicable, a list of witnesses, with a minimum number of five."

According to the internal regulations, the Speaker of the House can either approve the request, initiating the impeachment process, or reject it—which, according to the regulations themselves, can lead to an appeal to the full House.

"But what is not resolved in the internal regulations is the omission. There is no deadline set for the Speaker of the House to decide, nor any consequence [if there is no decision]," explains Sundfeld.

Bustamante explains that the "receipt" referred to in paragraph 2 of article 218 is the act of the Speaker of the House making a judgment on the admissibility of the complaint, and not the filing of the request. Thus, the requirement that the complaint must be "read during the proceedings of the following session and forwarded to the elected Special Committee" applies only after the request is admitted. If it is simply not considered—neither admitted nor rejected—there is no deadline for the Speaker of the House to act.

Possible interpretations

According to Sundfeld, if the Speaker of the House is negligent, the rules of article 218 and its paragraphs can be interpreted in two ways: one is that there would be a "tacit rejection" (resulting from the delay in analyzing the requests); the other is that the internal regulations would have given discretionary power to the Speaker of the House.

The problem with the first interpretation, however, is knowing what period of time would need to have elapsed to characterize this tacit rejection. "And then it will be up to the plenary to decide whether or not there was a tacit rejection. If it decides that there was not, an appeal to the plenary is inadmissible. If it decides that there was, the plenary will either accept or reject the complaint," he explains.

According to Bustamante, "after a certain period of time that keeps extending, it is plausible to demand that the Speaker of the House make some decision about this. The exact moment still needs to be determined. But there comes a time when it can be characterized as negligence, an act of omission that has legal consequences."

The problem with the second interpretation—that the Speaker of the House can choose when to analyze an impeachment request—is, according to Sundfeld, "that it gives the Speaker of the House exceptional power." It remains to be seen, therefore, whether this concentration of power makes sense or not. 

According to the legal expert, "it is not absurd to consider that the Speaker of the House received this power," since he "is an authority who, due to the dynamics of parliament, makes many decisions through dialogue with the college of leaders, and this political reality is important to understand whether this power is excessive or not."

Sundfeld also points out that the Speaker of the House is an authority who was elected by his peers and that, in the case of impeachment requests, he performs a particularly serious screening, carrying out prior coordination work to that end.

Bustamente does not endorse this second interpretation. For him, "it is very problematic to treat this as a discretionary power of the Speaker of the House." "Maia is clearly doing nothing, which increases his bargaining power, his ability to analyze the timing. That is the worst interpretation," he states. 

In any case, if the full Chamber had to evaluate all impeachment requests (from Collor to Bolsonaro, 220 accusations), a significant operational problem would certainly arise. Some kind of filtering must be done — legal experts agree.

Jurisprudence

The Supreme Federal Court (STF) has been called upon to rule on the matter, mainly through writs of mandamus — such as the one that resulted in Celso's decision (MS 37.083) this Thursday.

In general, the Court's jurisprudence has preferred not to pressure the Chamber to consider impeachment requests, as Bustamante stated.

In any case, for the jurist Marcelo Campos Galuppo, also from UFMG (and author of the book Impeachment — What it is, how it is processed and why it is done), Celso de Mello's decision to order the questioning of Maia is correct. After all, "the Constitution makes it clear that the competence [to consider impeachment requests] belongs to the Chamber," he states.

Galuppo also points out that the Speaker of the House should not make a judgment on the merits of the requests, but only assess whether they contain the conditions for the action and just cause.

The Supreme Federal Court itself has crystallized this understanding: the competence of the Speaker of the Chamber of Deputies "is not limited to verifying the extrinsic formalities and the legitimacy of accusers and defendants, but may extend (...) to the immediate rejection of an accusation that is patently inept or devoid of just cause." 

Galuppo also mentions MS 34.087. In that case, an impeachment request against then Vice-President Temer had reached the desk of Eduardo Cunha, president of the House at the time, who dismissed the complaint during the parliamentary recess.

The petitioner filed a writ of mandamus with the Supreme Federal Court seeking to invalidate Cunha's decision. The case's rapporteur, Justice Marco Aurélio, granted the request provisionally, ordering that the complaint be processed within a Special Committee to be formed for that purpose.

The Chamber ignored Marco Aurélio's decision, who later even asked the Federal Public Prosecutor's Office to investigate the matter.

Ironically, the episode resulted in an impeachment request against Minister Marco Aurélio himself, which was rejected by the then-president of the Senate, Renan Calheiros.

While the limitations on the powers of the Speaker of the House are not defined, it will be up to the institutions of the Republic to try to deal with this regulatory vacuum. "There will be no categorical and conclusive answer to these questions. The problem is that the path will be built in a turbulent context, from which good decisions will hardly emerge," says Bustamante.