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BRASÍLIA – Rapporteur for the Constitutional Reform Proposal (PEC) that deals with the enforcement of the sentence after conviction in the second instance, Deputy Fábio Trad (PSD-MS) assesses that the text being processed in the Chamber is still going through a process of “misinformation”. The issue returned to the center of debates in Congress after the release of drug trafficker André do Rap, even with the conviction of high school magistrates. In an interview with GLOBO, the parliamentarian sees as positive the will of the president of the Chamber, Rodrigo Maia (DEM-RJ), to vote on the matter in full at the end of this year. But, for that, he understands that the PEC must be analyzed at the end of this month in a special commission.
André do Rap case: The majority of the STF votes in favor of the arrest of the drug trafficker
For this to happen, the House must approve a draft resolution for the commissions to be installed. Collegiate bodies have been inactive since the beginning of the pandemic, when deputies adopted the remote voting system.
Read the following interview:
What are the next steps for PEC to move forward?
I just had a meeting now with Alex Manente (author of the original PEC) and Marcelo Ramos (president of the special commission). We decided to ask President Rodrigo Maia to receive us on Tuesday, at the official residence, so that we can include in the draft resolution (for the recreation of commissions) a clause that allows him, president, to install any commission.
Why does PEC not advance in the Chamber?
I cannot identify the exact reason for the difficulty of regulating the PEC of the second instance, but we will continue to ask. And, of course, we will take advantage of President Rodrigo Maia’s declaration that he will vote for the PEC before the end of the year.
Congress has been legislating to privilege defense rights. Why, in this case, could it be different?
The PEC continues to go through a process of disinformation by many parliamentarians who still assume that it refers only to the criminal issue or that it can retroactively. In fact, it has another dimension, since it extends to all areas of law. It will also focus solely on processes initiated after its enactment. Brazil is the only country in the world where, to make a decision, the party can use four degrees of jurisdiction, indefinitely delaying the effectiveness of the process. So, as parliamentarians learn more about the content of this PEC, which has nothing to do with the first proposal presented, we will pass it.
Is the proposal likely to still be modified?
The time to table amendments has passed in committee. In plenary, I only think that it could be changed if its essence is not dehydrated. For example, an amendment that, in my opinion, would distort the essence of the PEC: take the final decision in the third instance, the Superior Court of Justice (STJ). Loses sense of PEC. So that’s out of the question.
How will the binding summary of the STJ work?
The Superior Court of Justice does not today have the task of editing the binding summary as the Supreme Court does. The idea is to give the STJ this attribution, because the federal infra-constitutional law needs to be standardized. Its interpretation must be unified. As there will be res judicata immediately after the second instance, we do not want the decisions of the local courts to be different from the decisions of the STJ. What is the advantage of this idea? Give more legal certainty, stability and security in the Law.
Is there pressure from companies? They will have fewer resources to contest tax debts.
No pressure. I remind you that the PEC will only focus on processes initiated after enactment. Therefore, it is true, many companies will have to disburse amounts in case they are defeated in the second instance. But they will have time to adapt to this new reality. Until they reach the second level, companies will have enough time to adapt to this new reality. We also have to remember: many companies will receive credit more quickly. Companies are not only in the passive pole. They are at the active pole. Therefore, what will occur is an effectiveness shock in the system.
How do you see the André do Rap case?
The responsibility, in my opinion, in this case, lies with the judge of first instance who did not apply the law (and renewed the preventive detention). We will admit that the PEC had been approved and André do Rap’s criminal action began after the enactment of the PEC. So yeah, there wouldn’t be all this trouble, because he’d already be serving his sentence in the end. Despite the second instance sentence, he was still not serving his sentence. Therefore, PEC is an example. If it were in force, it would not lead to such controversial developments.
How will the text be processed in a special commission?
The ideal would be to vote for the special commission this month, because then we would have November and December for political articulation. Thus, we could make possible the approval in plenary. We need 308 votes. Our concern is that President Maia will be very close to recess in December. And then, we hit the hook of not voting in the second round, or something pending. If there is a vote this month in the committee, we will have time to articulate with the leaders. We fear that by voting everything from the beginning, in the special committee and one day later in plenary, we will have difficulties reaching an agreement.
Is there any resistance in the Senate?
The only resistance I diagnosed has to do with normative placement. Some senators opposed the PEC and preferred to resolve the issue through a bill. But, as the PEC has advanced, it is ready to be voted, I don’t think there will be more resistance.
The most recent nominee to the STF, Kassio Marques, said he will respect the will of Congress on the matter. What do you think?
His statement was very positive. We already know that the execution of the sentence after a second instance conviction is optional, not mandatory. All the more reason for us to deliberate. If Parliament does not address this problem, there will be legal uncertainty, it will persist.
If the PEC is approved, will the matter be settled in the STF?
Nothing prevents someone from filing an action of unconstitutionality, but I do not believe that the Supreme Court, before the deliberation of Congress on a constitutional amendment, opposes the will of the Legislature.
