The so-called “PEC Kamikaze” is undeniably unconstitutional. By providing, on the eve of the election, the distribution of more than BRL 41 billion in social benefits and imposing a very dangerous “state of emergency”, in the context of serious attacks by the Executive on the honesty of the Brazilian electoral system, Constitutional Amendment 123 /2022 violates the essence of the Democratic Rule of Law, the electoral and fiscal golden rules, the spirit of free voting and the spending ceiling.
As Hamilton Dias de Souza said, “the creation of emergency aid as a currency for buying votes, by putting public coffers at the service of victory at the polls, is teratological. There is no public interest that legitimizes it”. The question now is whether and, especially, when the STF will declare its invalidity.
The court was triggered in ADI 7212, but there is a preliminary issue. The New Party, which filed the lawsuit, rightly claims that there was a mistake in distributing the lawsuit to Minister André Mendonça, which will need to be resolved soon by the STF. After all, the effects of the rules could be irreversible for the public coffers and the suitability of the elections.
To the BRL 32 billion of unpaid precatories in 2022, thousands of other precatories will be added year after year, which will create a stock of unpayable debt, in excess of half a trillion reais, in 2026.
The PEC Kamikaze also draws attention for being the definitive proof of the unconstitutionality of the recent Constitutional Amendments 113 and 114/21, which imposed default on the payment of public debts recognized by the Judiciary, the so-called precatories.
It should be remembered that President Bolsonaro claimed he could not pay the R$89 billion in precatories, provided for in the 2022 budget, as this “would stop everything in Brazil”. It would be necessary to postpone R$ 32 billion, to the misfortune of thousands of beneficiaries who, for decades, have been waiting to receive rights definitively recognized by the Judiciary.
Thus, with the declared objective of “avoiding a financial and public machine collapse” (explanation of the reasons for PEC 23/21), an annual sub-ceiling was established for the payment of precatories. As a result, the R$ 32 billion of unpaid precatories in 2022 will be added, year after year, to other thousands of precatories, which, according to the Independent Tax Institute, will create a stock of unpayable debt, greater than half a trillion reais in 2026.
It is already proven, in ADI 7064, pending in the STF against ECs 113 and 114/21, that the alleged impossibility of paying precatories was yet another “fakenews”. The Treasury had – as it still has – more than R$ 1.5 trillion. In addition, obtaining R$ 98 billion in the budget, due to the rule of synchronization of monetary updating and the withdrawal of direct agreements and FUNDEF precatories from the spending ceiling, provided for in ECs 113 and 114, allowed, in itself, to only, pay all precatories, without default, in addition to Auxílio Brasil.
It was clear that the default was approved with a defect in motivation and deviation from purpose. Its purpose was not to avoid the collapse of the public machine or respect the spending ceiling, but to obtain more fiscal space for spending in an election year, such as amendments to the rapporteur, electoral fund, aid to truck drivers, tax benefits, etc.
The PEC Kamikaze is the concrete proof of the deviation of purpose and vice of motivation in the amendments of the precatories. After all, by shrugging off the “spending ceiling”, it releases around BRL 41 billion in the budget, public money more than enough to pay the BRL 32 billion in “pedaled” precatories in 2022. go unnoticed by the Supreme Court.
Daniel Correa Szelbracikowskilawyer, holds a master’s degree in constitutional law and a specialist in tax law and is a partner at Advocacia Dias de Souza.
