Cynthia Teixeira Pereira Carneiro Lafeta. PHOTO: DISCLOSURE

Amendment to the Constitution No. 111 of September 28, 2021 had one of the goals of strengthening political parties and party coalitions, giving constitutional status to the issue of party loyalty. The above amendment added § 6 to Art. 17 of the 1988 Constitution of the Republic, which provides that federal, state, and district deputies, as well as councilors who have resigned from the party from which they were elected, lose their mandate, except with the consent of the party or other presumption of good cause established by law. This reform represents an achievement for society and an important step towards strengthening the political legend.

However, concern about the migration of parliamentarians to political parties is more recent, as after the re-establishment of a multi-party system after the two-party system of the war period, parliamentarians left their parties to join other political parties.

As an example, if we consider the four legislatures prior to the adoption of the 1988 Constitution (1983-86, 1987-90, 1991-94 and 1995-98), which marked a turbulent political stage of redemocratization, approximately 30% of parliamentarians who passed through The Chamber of Deputies changed parties at least once. During this period, there were six hundred and eighty-six parliamentarians who migrated from party to party, and given that some of these parties changed parties more than once in the same legislature, there were a total of eight hundred and twelve migrations.

The exorbitant numbers cited have led to the weakening of the Brazilian political parties, as well as serious uncertainty regarding the retention of the mandate, in addition to an act of disloyalty towards the voter, who often votes for candidates due to the legend and party programs and proposals.

Only on the basis of TSE Regulation No. 22.610 of 2017 of the Higher Electoral Court (TSE), the political party concerned, the Electoral Public Ministry or any other person with a legitimate interest can apply to the Electoral Court for an order to remove an elective office as a result of leaving the party without good reason , despite the fact that the representative had the right to argue in his favor for good reasons listed in § 1 of Art. 1 of the above resolution, namely, amalgamation or merger of a party, creation of a new party, material change or repeated deviation from the program of the party and serious personal discrimination, while the TSE has the competence to consider and consider a request related to a federal mandate, and the Electoral Court of the relevant state in other cases.

After eight years of the TSE Decree No. 22,610, on September 29, 2015, Law No. 13,165, known as the “Mini Electoral Reform”, was adopted, which led to new situations that could be a valid reason for leaving the party, since, in addition to change or repeated deviation from the program of the party and serious personal political discrimination, a new hypothesis was added, called “windows”, allowing the holder of an electoral mandate to change the party within 30 (thirty) days preceding the membership period required by law to participate in elections, majoritarian or proportional, for any good reason.

Thus, considering that Art. 9 of the Electoral Law – Law no. 9,504 of September 30, 1997 establishes a minimum membership period of six months before the election date, which means that the “window” created by Law no. 13,165 must fall exactly thirty days before the specified six months.

The rule to change political party during an elective term was also the subject of an Unconstitutionality Action – ADI No. 5081 in respect of cases of party loyalty in proportional or majoritarian electoral mandates, which was concluded by the vote of Minister Rapporteur Luis Roberto Barroso that such a rule would only apply to holders of proportional electoral mandates, an understanding that has remained enshrined in precedent 67 of the TSE.

And on March 13, 2018, after consultation with federal deputy Fernando Francischini, the Plenum of the Supreme Electoral Court – TSE positioned itself in the sense that the “party window” referred to in Art. 22-A, paragraph III, of Law no. terms that expire in 2024 may be given the right to withdraw from their political parties without good cause in order to run in the upcoming 2022 elections.

Thus, the deadline for the possible relocation of a political party without a valid reason to participate in the 2022 elections by those who already have a proportional electoral mandate came between March 3 and April 1 of this year, and after this date the so-called party window. Exceptions are made for deputies of city councils, federal, state and district deputies, who can withdraw from the party from which they were elected without losing their mandate in cases of party consent or if there is a good reason established in the above legislation.

The legal, political and social significance of the constitutional amendment No. 111 regarding party loyalty is emphasized, since the place that a deputy occupies can never be considered a personal achievement, being the result of collective political work in which the party participates. leaders, candidates, and supporters, given that to calculate the party coefficient, all votes are counted for the party and not for the individual candidate, and yet such infidelity also resonates with voters as they voted for a candidate who believes in the ideology and platform being protected.

Thus, in none of the cases described, the migration of a political party will be calculated for the purpose of distributing funds from the party fund or other state funds and free access to radio and television, since this is a constitutionally guaranteed right to political parties, and not to parliamentarians, which indicates progress achieved at the political level with the adoption of the Constitutional Amendment No. 111, adopted on September 28, 2021.

*Cynthia Teixeira Pereira Carneiro Lafeta is a lawyer, holds a Master of Laws degree from the Classical University of Lisbon, and Professor of Law at Newton Paiva, Promove and Faminas Faculties of Law.