Plan in Congress to amnesty Bolsonaro clashes with Lula and the STF

Since being condemned by the Superior Electoral Court (TSE) to ineligibility, former president Jair Bolsonaro (PL) has signaled the hope of a reversal of the sentence so he can run again for Planalto in 2026. One of the possible paths for this would be approval , in Congress, of a law with amnesty that would free him from punishment. The problem is that a proposal, if approved, could be vetoed by President Luiz Inácio Lula da Silva (PT) and, even if the veto were overturned in the Legislature, there would be a serious risk of the Federal Supreme Court (STF) annulling the law.

Since his electoral defeat last year, Lula and some STF ministers have not stopped attacking Bolsonaro, which helped create a favorable climate for his conviction at the TSE. A reversal of the conviction in the STF, although desired by Bolsonaro and the president of the PL, Valdemar da Costa Neto, based on the annulment of Lula’s convictions, is currently not on the horizon for the majority of the Court’s members – especially because this would be a defeat for the president of the TSE, Alexandre de Moraes, who maintains prestige among his colleagues.

In Congress, two bills are being processed that, if approved, would benefit Bolsonaro. The first was presented in June, is headed by deputy Ubiratan Sanderson (PL-RS) and was signed by 49 other allies of the former president. I would pardon not just Bolsonaro, but all politicians convicted since 2016, except those for corruption, drug trafficking and violent crimes. The second project, by deputy Antonio Carlos Nicoletti (União-RR), would only reverse the ineligibility of Bolsonaro and General Walter Braga Netto, candidate for vice in 2022, in the two cases in which there has already been a conviction, and in others in which this it may also happen in the future.

In August, the projects were joined and given priority status by the president of the Chamber, Arthur Lira (PP-AL), who supported Bolsonaro in the election. They are now awaiting an opinion from the Constitution and Justice Commission (CCJ), but there is no rapporteur. If approved by the board, it could be taken to the plenary and go ahead of other proposals.

Still, several deputies close to Bolsonaro do not believe there will be progress in the short term. Marco Feliciano (PL-SP) says that he has hope and that he will fight with all his might for the proposals to pass through the Chamber. “However, the approval of these projects with ‘naked’ eyes is impossible, as the government has already formed a base and has a majority. I also very much doubt that the current president of the House [Arthur Lira] allow the processing of these projects, especially because, I believe, he would not want to disagree with the STF”, he told the reporter.

He and several others, however, repeat that politics is “dynamic” and that everything could change by 2026.

“The more time passes, the more political environment there will be for this”, says Mauricio Marcon (Podemos-RS). Asked whether, in the event of approval of the proposal in Congress, Lula and the STF would not be even more difficult obstacles, he replied: “I believe that everything depends on the political environment, the STF today has strength because it is not afraid of the Senate or the reaction of the people, This can and is changing”, said the parliamentarian.

Julia Zanatta (PL-SC) says she believes that the opposition has a “solid and efficient base, which can organize itself and obtain a good number of votes” to approve the amnesty. Asked about a likely veto by Lula, she says that, because the PL is the largest party in the Chamber and its deputies have a lot of strength on social media, “it would be a new strain on the government, if there was a veto from Lula. It would demonstrate a government without strength in Congress.”

As for a possible annulment of the law by the STF, she says that such a decision would create a new disagreement between the Court and Parliament. “It is possible, with organization, to overcome these obstacles. Especially because it is an absurd situation”, said the deputy.

Just like Marco Feliciano, Bia Kicis (PL-DF), more experienced than the others, is cautious and does not anticipate what may happen from now on. “I look very favorably on projects in this direction. Any initiative to redress an injustice should be welcomed,” she said.

In the STF, the obstacle is greater, not only due to the unwillingness of the majority of ministers towards Bolsonaro – even some who were close, such as Gilmar Mendes and Dias Toffoli, began to criticize the former president, adhering to the left’s discourse that he was a risk to democracy.

Daniel Silveira case is a precedent that hinders Bolsonaro

Apart from the political removal, the legal requirement to overturn an amnesty is already prepared. The precedent that could be used is the annulment of Bolsonaro’s own decree that pardoned the sentence of former deputy Daniel Silveira, convicted by the STF for offending and threatening ministers.

In the trial, which took place in May, the majority of ministers considered that it is possible to annul a pardon or amnesty if there is a “deviation of purpose” – in this case, if the measure only serves to benefit a political ally. “The granting of pardon to a political ally for the simple and simple bond of political-ideological affinity is not compatible with the guiding principles of Public Administration, such as impersonality and administrative morality”, says the summary of the decision, which summarizes the understanding of the majority.

The difference between annulling a pardon and an amnesty, for the STF, is that in the first case the act belongs solely to the president, while in the second it belongs to Congress and the president, in the case of a sanction. The difference is important, but it would not inhibit ministers from taking a different decision.

An older STF precedent, from 2006, in theory, could benefit Bolsonaro. That year, the Court considered constitutional an amnesty law that annulled the ineligibility of parliamentarians who used the Senate printing press to campaign. The law, however, required each of them to reimburse the Legislative House for services.

Ministers consider that the case is different from the current one, in which Bolsonaro was condemned to ineligibility for casting doubt on the electoral system and for mixing the commemoration of the Bicentenary of Independence with rallies in Brasília and Rio de Janeiro – both behaviors are seen as more serious, as they would have further affected the normality and legitimacy of the election.

The reversal of Lula’s ineligibility is also different. His political rehabilitation was part of a movement by the STF to annul all or most of Operation Lava Jato, due to the fact that it had affected the political elite. The opposition to Bolsonaro and his political group within the Court has an ideological background, which is confirmed by statements from ministers who today openly talk about combating the “extreme right” and defeating “Bolsonarism”, for example.