Why do deputies need to approve the arrest of the alleged person behind Marielle Franco’s death? Understand

Federal deputy Chiquinho Brazão (no party-RJ), suspected of being one of the masterminds behind the murder of Rio councilor Marielle Franco in 2018, needs confirmation from his colleagues in the Chamber to have his arrest maintained. The rule on analyzing the arrest of a parliamentarian is provided for in the Federal Constitution.

Article 53, item 2 of the Magna Carta, says that from the issuance of the diploma, “members of the National Congress may not be arrested, except in the act of a non-bailable crime. In this case, the records will be sent within 24 hours to the House respective, so that, by the vote of the majority of its members, it decides on the arrest”.

When issuing an arrest warrant against a legislator, the Federal Supreme Court (STF) must notify the respective House within the period. In the following legislative session, parliamentarians must analyze the situation in the Constitution and Justice Committee. Afterwards, the case goes to the plenary. The resolution is obtained through an open vote and the decision must have an absolute majority of votes, that is, more than half of the collegiate body (at least 257 votes out of 513).

Professor of Constitutional Law at Mackenzie Presbyterian University, Flávio de Leão Bastos explains that the origin of parliamentary immunity is 200 years old in the country. The rule was created to guarantee republican and abolitionist parliamentarians the right to criticize the monarchical government without suffering sanctions.

“This is not about personal privilege, it is about protecting the mandate of a parliamentarian, elected by portions of the population, so that they can represent this mandate well without fear, even criticizing the government, opponents. So, it is wrong to even talk about privileged forums, it is not a privilege. The original idea is a forum by function prerogative, more a protection of the mandate than of the person”, he said.

In the case of authorization to maintain a parliamentarian’s arrest, the objective is the same: to avoid the persecution of opponents.

The country’s first Constitution, from 1824, already provided for the principle of inviolability in articles 26, 27 and 28, and the understanding was maintained in the republican period with the promulgation of the Constitution of 1891, and in the following ones, of 1934 and 1946.

Until then considered essential for the performance of legislative activity, parliamentary immunity was only compromised during dictatorial periods in Brazil. The 1967 Constitution, during the military dictatorship in Brazil, for example, established that the vote to maintain the parliamentarian’s arrest should be by secret vote, and communication had up to 48 hours to occur.

The rule changed after federal deputy Márcio Moreira Alves’ speech in 1968, with harsh criticism of President Arthur da Costa e Silva’s regime. The occasion was used as a pretext for him to issue Institutional Act No. 5, (AI-5), considered the most drastic exceptional measure of the dictatorship. After Alves’ speech, which asked the population to boycott the regime, the government asked the STF to revoke the parliamentarian’s mandate. The Chamber refused with 216 votes against and 141 in favor.

After the House’s refusal, Costa e Silva instituted AI-5, an act that authorized the president to close Congress, revoke parliamentarians’ mandates and suspend habeas corpus and the political rights of any citizen. In addition to Alves, ten other federal deputies had their mandates revoked. In the following years, dozens of parliamentarians suffered the same fate, based on the act.

The professor explains that the principle of parliamentary immunity, as we know it today, underwent yet another change after being reintroduced in the 1988 Constitution, when it became valid only for activities related to the exercise of office.

“If a parliamentarian kills someone in his private life, attacks his wife, commits a common crime, it has no relation to his actions as a parliamentarian, therefore, he has no right to have his immunity recognized”, he explained.

This Tuesday, the 26th, the Chamber’s Constitution and Justice Committee (CCJ) began analyzing the maintenance of Brazão’s prison, which was determined on Sunday, the 24th, by the Minister of the Federal Supreme Court Alexandre de Moraes and confirmed by the First Panel of the Court on Monday, 25.

However, the vote was postponed following a request from deputies from Novo, PP and Republicans and should be resumed in April. It is up to the collegiate and, later, the plenary of the Chamber to analyze the arrest of Chiquinho Brazão. Last Sunday night, the deputy was expelled from União Brasil. This Wednesday, the 27th, he was transferred from Brasília to the Campo Grande Penitentiary.