PEC intends to change the procedure for assessing provisional measures by the National Congress

The discussion about the way of assessing provisional measures (MPs in the Portuguese acronym) by the National Congress always returns to the agenda and brings controversial issues.

The debate about the way Congress approves provisional measures always returns to the agenda, and brings with it controversial issues, such as the deadlines to be observed by each Legislative House – House of Representatives and Federal Senate – the so called “legislative contraband” and the essential requirements for its presentation: relevance and urgency.

The Proposed Amendment to Constitution N. 70 of 2011, PEC 11/2001 from Senate, presented by the Senator at the time José Sarney, which was already approved by the PLenary of the Federal Senate, is currently being analysed by the Chamber of Deputies, and intends to change at least two controversial issues mentioned above. The first one establishes specific deadlines for each House to deliberate and vote the provisional measure. The other incorporates to the constitutional text the rule that prohibits the presentation of amendments that deal with matter that is foreign to its object or is not bound by affinity, pertinence or connection, provided for in Paragraph 4, Article 4 of Resolution 1/02 of the National Congress (CN), and established by the understanding of the Federal Supreme Court – STF in ADIn 5.127.

Currently, the deadlines for the validity of the provisional measure determined by the Federal Constitution are established for both Houses – the National Congress – of sixty days from its publication, renewable only once, for sixty more days, if the proposal is not put to a vote in both Houses.

Adding to that constitutional rule, there is also the Resolution 1/02-CN, which establishes deadlines for the voting of a provisional measure in the Chamber of Deputies and in the Federal Senate. However, these deadlines are not always observed, which in many instances makes the role of senators secondary, and even innocuous, in the discussion and deliberation of MPs.

In this sense, we can highlight several public demonstrations by senators dissatisfied with the Chamber of Deputies, for forwarding MPs only a couple of days before the deadline for the loss of its validity.

The PEC, with regards to deadlines, proposes 180 days counted from its publication (and not anymore from its publication) for the Chamber of Deputies to appreciate the MP; 30 days for the Federal Senate, counted from the approval of the MP in the Chamber of Deputies; and, in the event of an amendment being filed by the Federal Senate, the Chamber of Deputies would have a period of 10 days, counting from the approval of the amendments by the Senate.

Although the scope extends the period of the MP processing, the relationship between the political interest and the social clamor will remain as a very importante fator to calibrate this period of appreciation.

It is worth mentioning that the PEC also proposes specific deadlines for each House regarding the analysis of the constitutional assumptions, that is, admissibility of the MP.

Regarding the emergency regime, currently, if the MP is not evaluated within forty-five days of its publication, all other legislative decisions of the House in which it is being processed will be adjourned until the voting is completed. According to the PEC, if the Chamber of Deputies makes no manifestation concernig the subject within seventy days, and the Federal Senate within twenty days, the provisional measure will enter into a so called “emergency state”, overriding all other legislative deliberations of the respective House, except for those with a term determined by the Constitution, until the voting is completed.

The inclusion in the Constitution of the above mentioned rule, which concerns the impossibility of including in the object of an MP and the Draft Law of Conversion a foreign matters, unrelated to it by affinity, pertinence or connection, is suggested by the addition of § 13 to art. 62.

Although Resolution 1/02-CN prohibits the presentation of amendments that deal with matters extraneous to the one dealt with in the Provisional Measure, it is still very common the insertion in texts of MPs of subject without any relation to the matter. This maneuver is known as a “ride”, or “legislative smuggling”, which has already made MPs true “patchwork quilts”.

The current rule provides that it is up to the Chairman of the Special Committee, who will analyze the MP, the preliminary rejection of these amendments. The PEC, by proposing this rule in the Constitution, mitigates the characteristic of a certain “discretion” of the President of the Commission to reject amendments preliminarily. It becomes a constitutional criterion to be observed.

Obviously, in practice, the political aspect will not cease to be present. However, the proposed amendment establishes a border, a certain limit for the deferment of amendments that do not have affinity, relevance or connection with the object of the MP, since it gains status of constitutional norm.

Considering the issues presented above, the PEC adjusts the wording of § 10 of art. 62, inasmuch as it prohibits the reissue, in the same legislative session (same year), “of a matter of contained in the provisional measure” that has been rejected or has lost its effectiveness over a period of time. This means that rejected subjects, whether a result of amendments or not, could not, by the proposed wording, be subject to MPs in the same legislative year. Currently, the Constitution prohibits the reissuement of a “provisional measure that has been rejected”.

PEC 70/2011 is ready for the deliberation of the plenary of the Chamber of Deputies, with the opinion of the Special Committee, for the approval, with a substitutive (a text that substitutes the original).

As for the text proposed by the Chamber of Deputies, we can identify that the extension of the deadline for processing MPs was not well received, since the substitute proposal is to maintain the 120-day deadline (currently considering the extension rule set forth in the Constitution) and divides that term between the Houses of the National Congress. Unlike the original proposal, the substitute text proposes, instead of 180 days for the Chamber of Deputies, 30 days for the Senate, and 10 days for the Chamber of Deputies to analyze the Senates amendments – if there are any; 70 days, 30 days and 20 days, respectively.

In the opinion of the federal deputies, according to the proposal of the substitute text, it would be no longer up to the president of the Special Committee to make a preliminary decision on the amendments, but to the President of each House of the National Congress. Considering that the amendments should be presented in the Special Committee, this proposal seems to be misaligned with the legislative process.

I understand that the Federal Senate proposal seeks to remedy a formal defect and contributes to suit the deadlines to the reality of the National Congress. There is a jargon well known to those working in the legislative area of which “the Plenary is sovereign”. Let us wait, then!

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Rodrigo Alberto Correia da Silva

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Category: GOVERNMENT RELATIONS, Rodrigo Alberto Correia da Silva

Tags: brasilia, congress, correia dasilva advogados, csa, government relations, national, PEC

Posted in: 25/06/2019

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