The creation of the truck driver aid, under study by the government of Jair Bolsonaro (PL), directly violates the electoral law and cannot take place this year, according to lawyers heard by the UOL. Some said that, in theory, the new aid would be possible from a change in the Constitution, which overrides the electoral law, but even this alternative would be subject to questioning in the courts.
With an eye on the elections and Bolsonaro’s low popularity, the government base is studying creating a benefit for self-employed truck drivers, to compensate for the rise in diesel. In Brasília, discussions revolve around the value of the aid, which could be higher than the R$400 currently paid in Auxílio Brasil (formerly Bolsa Família).
The problem is that, in the opinion of experts, Law No. 9,504, which deals with electoral rules, clearly prohibits the creation of such benefits in a campaign year. In its article 73, paragraph 10, the law establishes the following:
In the year in which the election is held, the free distribution of goods, values or benefits by the Public Administration is prohibited, except in cases of public calamity, state of emergency or social programs authorized by law and already in budget execution in the fiscal year. previous.
Electoral law excerpt
For lawyer Alexandre Rollo, a specialist in electoral law and a doctorate from PUC-SP (Pontifical Catholic University of São Paulo), the creation of the aid at this moment, based on a bill, “infringes directly” the article and “would not be possible”.
This is also the opinion of lawyer Felipe Carvalho, a specialist in public law and partner at Rubens Naves Jr. Lawyers. “The article is clear: you can only create benefits in calamity, emergency situations. At this moment, creating aid due to the increase in diesel is not a calamity.”
Attempt to circumvent the electoral law
To circumvent the impediment, one of the possibilities studied by the government is to add the benefit of truck drivers to PEC (Proposed Amendment to the Constitution) No. 16, currently pending in the Senate.
The PEC originally deals with compensation, to be paid by the Union to the states, for the reduction of ICMS (Tax on Circulation of Goods and Services) on diesel and gas. It is yet another proposal in Congress that seeks to reduce fuel prices – a sensitive topic for President Bolsonaro’s re-election campaign.
If the truck driver aid is instituted through PEC, in theory, the government would circumvent the impediment of the electoral law. “The constitutional text is above the electoral law. So, once the PEC is approved, there would be no prohibitions”, evaluates lawyer Cristiano Vilela, a partner at Vilela, Miranda e Aguiar Fernandes Advogados.
For Rollo, however, the creation of the benefit through PEC would also be questionable.
I have never seen such a detailed issue dealt with in the Federal Constitution. The Constitution, in any serious country, is for establishing pillars. Whether or not to create aid is a matter of law. Create a new article in the Constitution to circumvent the legislation [eleitoral] would be debatable in court.
Alexandre Rollo, specialist in electoral law
For Cristiano Vilela, regardless of the subject, a PEC is always subject to questioning in the courts. “At this point, it is part of the price of any measure that may be adopted,” he says.
Vilela believes, however, that amending the Constitution is not the most appropriate way to establish specific benefits, such as truck driver assistance. “It seems evident to me that the choice of this format is exclusively due to the electoral legislation. [usar a PEC]but it is sui generis [diferente]”, it says.
more difficult procedure
One of the possibilities discussed is that, in the PEC itself, a state of emergency is instituted. In theory, this would serve as an additional protection to legal challenges against the change in the Constitution.
But Carvalho recalls that processing a PEC is more difficult in Congress.
The amendment to the Constitution requires a two-round vote in the House and Senate. To pass, it needs three-fifths of the votes of deputies (308) and senators (49). For now, PEC nº 16 is in the initial phase in the Senate.
“There is a bias there. You can throw information to the general public that the government has tried to improve [a situação dos caminhoneiros]but it was stopped”, says Carvalho. “This PEC movement is really very strange.”
Rollo says that the questioning of the PEC in the STF (Supreme Federal Court) could become an electoral weapon. “The issue would fall into the Supreme Court’s lap. And the Supreme Court would become the villain of the story”, he says. “It’s a maneuver, and the National Congress is not for that”, he criticizes.
Another measure that can be incorporated into PEC nº 16 is the increase in the gas allowance — a benefit of R$ 52 that has been paid by the federal government since January.
For Rollo, as the gas allowance already exists, due to a law passed at the end of 2021, the margin for questioning in court is smaller, if there is a change in values.
“Still, the increase could be framed as an abuse of political power,” he says.