A Pardon Is Not an Amnesty

Brazil’s presidential runoff on Sunday 25 October is a choice between two men separated by less than two points. In the first round on 4 October, the electoral court’s national file gave Senator Flávio Bolsonaro of the Liberal Party 47.03 per cent of the valid vote and President Luiz Inácio Lula da Silva 45.16 per cent, as this publication reported when the count closed. Because the Constitution leaves blank and null ballots out of the denominator, one of them will finish above half.

Much of the campaign since has turned on one man who is not on the ballot. Jair Bolsonaro, the candidate’s father, was sentenced to 27 years in prison over a coup attempt and is serving the sentence under house arrest in Brasília because of recurring health problems, according to AFP. Flávio Bolsonaro “has also pledged that the first act of his term would be to grant his father a presidential pardon,” the agency reported. A pardon and an amnesty are different instruments in Brazilian law. They belong to different branches, run on different calendars and do different things.

Two instruments, two branches

The pardon belongs to the president alone. Article 84 of the Constitution lists among the powers reserved to the president the power to “conceder indulto e comutar penas”, to grant pardons and commute sentences. No vote is required.

Amnesty belongs to Congress. Article 48 lists “concessão de anistia”, the granting of amnesty, among the matters on which the National Congress legislates, with the president’s sanction. That means a bill passed by both the Chamber of Deputies and the Senate. The difference is not only procedural. “Unlike a pardon, an amnesty would allow Jair Bolsonaro to regain his political rights and thus run for office again,” AFP reported. A pardon would end a sentence; on AFP’s account it would not restore his eligibility.

Three calendars

The two routes would not open on the same day. Under Article 82, as amended in 2021, the president’s term begins on 5 January of the year after the election. The new Congress starts later: Article 57 has each house meet in preparatory sessions “a partir de 1º de fevereiro”, from 1 February, in the first year of a legislature, to swear in its members. AFP’s report that new lawmakers take their seats in January does not match that text.

A pardon could therefore come first. AFP reported that one could be signed “minutes after” the inauguration, but quoted Thiago Bottino, a law professor at the Getulio Vargas Foundation, as saying bureaucratic hurdles “would prevent it from taking effect that same day.”

The third calendar is the Supreme Federal Court’s. AFP reported that a review request filed by Jair Bolsonaro’s lawyers is before Justice Kassio Nunes Marques, whom Bolsonaro appointed, and that his office said he “intends to submit the matter to the full court after the runoff election on October 25.” Proceedings could run past 5 January, the agency added.

The precedent the Court has already set

The Supreme Federal Court has struck down a Bolsonaro pardon once. In 2022 Jair Bolsonaro, then president, granted an individual pardon to Daniel Silveira, a federal deputy the Court had convicted. On 10 May 2023 the Court annulled it by eight votes to two, Brazilian outlets reported, finding that the decree misused the power to benefit a political ally. Nunes Marques and André Mendonça dissented. A pardon a son signed for his father would arrive at a court that has already decided a president’s pardon power has limits.

The Congress either president would face

An amnesty would need a majority in a chamber no party controls. The Liberal Party elected 121 of the 513 deputies on 4 October, up 22 from 99 in 2022, Congresso em Foco reported. The federation led by Lula’s Workers’ Party, with the PCdoB and the PV, elected 88, and the União Progressista federation of União Brasil and the PP elected 87. A majority of the chamber is 257. The Liberal Party and both federations together hold 296 seats, which is this publication’s arithmetic and not a coalition: the Workers’ Party federation is the president’s.

The rest of the chamber is spread across mid-sized parties such as the PSD and Republicanos, whose published totals still differ by a seat between outlets. Those parties, not the runoff, will decide whether an amnesty bill moves, and it will not be seated until February.

Voters on 25 October will choose a president. They will not choose between a pardon and an amnesty. Whoever wins controls only the first of those instruments, and the Court has already shown that it can review it.

Sources

The first-round shares are from the Tribunal Superior Eleitoral’s national results file, as reported by this publication on 5 October. The constitutional provisions are from the Constitution as published by the Presidency. The pardon pledge, Jair Bolsonaro’s custody, the amnesty and political rights point, Bottino’s remarks and the Nunes Marques timetable are from AFP. The Silveira ruling, its date and the vote are from Brazilian press reports of 10 May 2023. Chamber seat totals are from Congresso em Foco. The 27-year sentence was reported by this publication on 3 October. The seat arithmetic is this publication’s.