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Pandemic CPI - Context and Perspectives

The Parliamentary Inquiry Committee (CPI) of the Pandemic, installed at the end of April in the Federal Senate, contributes to the instability and unpredictability of the national political scenario. In order to contextualize and monitor this process, in this article, we return to the discussions surrounding the installation of the collegiate body and provide information on the work carried out so far, considerations on the attributions, limits, history, and possible results of a parliamentary inquiry committee.

This article will be updated weekly on Mondays, with the inclusion of the newsletter that we send out at the end of each week to our clients, which brings new information about the CPI debates.

Opening determination by the Federal Supreme Court (STF)

On April 8th, STF Minister Luís Roberto Barroso answered the request made in an action authored by Senators Alessandro Vieira (Cidadania/SE) and Jorge Kajuru (Podemos/GO) and determined, in an injunction, the installation of the CPI. In justifying his decision, the Minister pointed out that the three requirements established by the Federal Constitution for the constitution of the commission – support from one-third of the House's parliamentarians, the indication of a determined fact, the definition of a term for its duration – were met. The following week (04/14), the Court's Plenary endorsed Barroso's decision by a large majority. Regarding the collegiate functioning dynamics, the decision states that it must be defined by the Federal Senate in accordance with the procedures and rules that the House is adopting during the Pandemic.

Since the promulgation of the Federal Constitution of 1988, this is not the first time that the STF determines the opening of CPI's that meet the constitutional requirements. During the PT governments (Lula and Dilma Rousseff) the CPI of Bingos (2005), CPI of Airport Blackout (2007), and CPI of Petrobrás (2014) were installed after the court order. This is because the STF has already signed the understanding that the CPI is an instrument guaranteed to the parliamentary minority that allows this group to exercise its supervisory powers. Thus, the decision on the installation or not of a CPI must consider the provisions of the Federal Constitution and related legislation. Thus, the analysis of convenience or political opportunity is not among the requirements that should be considered for the installation of this type of collegiate body.

The CPI of the Pandemic

The creation of the CPI was officialized on 13/04 upon reading the request for the opening of the collegiate body in Plenary by the President of the House, Senator Rodrigo Pacheco (DEM/MG). In defining the scope of the collegiate, the senator considered the proposals of the requests presented by the Senators Randolfe Rodrgues (REDE/AP) and Eduardo Girão (PODEMOS/EC). Thus, during its operation, investigations will be carried out by the commission based on two main axes:

  1. Investigate the actions and possible omissions of the Federal Government in confronting the Covid-19 Pandemic in Brazil and, in particular, in the worsening of the sanitary crisis in Amazonas with the lack of oxygen for hospitalized patients.
  2. Investigate possible irregularities and offenses involving resources transferred by the Union to States and Municipalities to fight the Covid-19 Pandemic.

The initial request by Senator Eduardo Girão (Podemos/CE) included governors and mayors among those investigated. However, this request generated debates about the competence of the Federal Senate to investigate these actors. Supported by the opinion of the Board of Directors of the House, the President determined that the Federal Senate is responsible for concentrating only on cases involving the inspection of the transfer of resources from the Union to other federated entities. This decision is based on the Article 146 of the Internal Regulations of the Federal Senate, which determines that CPIs on matters pertaining to the House of Representatives, the attributions of the Judiciary Power and the States will not be admitted.

The attempt to expand the investigation to the heads of state and municipal executives is part of the government's strategy of shifting the focus of the collegiate body from the Federal Executive Branch. It also reflects President Jair Bolsonaro's strategy of confronting and criticizing the social isolation measures adopted by governors and mayors in confronting the pandemic.

After reading and publishing the application that created the CPI, the party leaders, observing proportionality, made the nominations of the members who would occupy the 11 seats of incumbents and the 7 of substitutes. Considering the position of the nominated parliamentarians, the general assessment is that the composition of the collegiate is unfavorable to the government, as most of its members have a critical stance regarding the conduct of the pandemic at the federal level. The composition of the commission can be accessed in this link.

First week of work

On April 27, the commission's installation meeting was held, in which the president and vice-president were elected, and the rapporteur was chosen. With the unfavorable composition, the government unsuccessfully tried to articulate names from its base for the presidency and rapporteurship. However, the names agreed on the previous week prevailed and, in this sense, Senator Omar Aziz (MDB/AM) was elected president and Senator Randolfe Rodrigues (REDE/AP) was elected vice president. The position of president is strategic in a commission, as it is this figure who is responsible for coordinating the work, defining the agenda and choosing the rapporteur. Following the agreement made between the leaders, senator Renan Calheiros was appointed the commission's rapporteur, whose main task is to prepare the collegiate's final report that will bring the results of the investigation.

This first meeting was marked by attempts to postpone the installation and changes in the composition of the committee. In this sense, the government senators defended that the CPI be installed after the peak of the pandemic to avoid face-to-face meetings. Furthermore, they questioned the presence of members on the committee who are related to potential investigates. The main target of this inquiry was the commission's rapporteur, as his son is the governor of the state of Alagoas. The appointment of Renan Calheiros as rapporteur for the commission was even the subject of lawsuits filed by members of the government's base. But the prevailing understanding was that providing for the appointment of the rapporteur is an internal matter for the Federal Senate. 

At the next meeting, the work plan proposed by the rapporteur was presented and debated. The purpose of the document is to establish an initial line of investigation that will be complemented by the discussions and information raised throughout the work of the CPI. Thus, for this initial moment, the following lines of investigation were established.

  1. Action to fight the pandemic.
  2. Pharmaceutical care.
  3. Crisis-fighting structure.
  4. Collapse of the health system in Amazonas.
  5. Prevention actions and indigenous health care.
  6. Employment of federal resources.

The CPI has a period of operation of 90 days, which can be extended upon request of at least 27 senators. Thus, its closing is scheduled for August 8th. Furthermore, the meetings are being held in a hybrid format, from Tuesday to Thursday, but the testimonies must be in person. More information about the collegiate, such as applications submitted and approved, can be accessed in this link.

Timeline with the events between the submission of the application requesting the creation of the CPI and the day of its installation.

Below, we share the reports produced by our team and sent weekly to our clients on the discussions and the progress of the CPI. This list will be updated every Monday.

April 28th: Scenario - Installation and Perspective

April 26-30th Installation of the commission and Presentation of the Work Plan ( link ).

May 03rd to 07th: Testimonies by formers Ministries of Health Luiz Henrique Mandetta and Nelson Teich and by the actual Minister of Health Marcelo Queiroga (link).

May 10 to 14th: Testimonies by the President of Anvisa, the former special secretary for social communication of the Presidency and the general manager of Pfizer in Latin America (link).

May 17th to 21st: Testimonies by former Minister of Foreign Affairs, Ernesto Araújo, and former Minister of Health, Eduardo Pazuello.(link)

May 24 to 28th: Testimonials Secretary of Labor Management and Health Education of the Ministry of Health and the Director of the Butantan Institute. (link)

May 28th Scenaro - First Month of the Pandemic CPI.

May 31st to June 6th: Testimonies by the oncologist and immunologist, Nise Yamaguchi, and the former Covid Covid secretary of the Ministry of Health, Luana Araújo. (link)

June 7 to 11th: Statements by the Minister of Health, Marcelo Queiroga; the former executive secretary of the Ministry, Antônio Elcio Franco Filho; of the Governor of Amazonas, Wilson Lima (who did not attend). (link)

Attributions and Powers of a CPI

The CPIs are one of the instruments that the Legislative Power has to exercise its supervisory function. Its general objective is to investigate facts, gather evidence of illegal acts that may support future lawsuits. Thus, these commissions are not instances of judgment, prosecution, conviction, and application of penalties. This investigation can take place in parallel with investigations carried out by the Judiciary Police or the Public Ministry on the same case.

The object of investigation of the CPI must be a determined fact and specified in its application for creation. Thus, its motivation must be linked to a relevant fact that is of interest to the public sphere – in economic, social, or political terms – and to the constitutional and legal order of the country. In this sense, they can unfold into multiple facts, but as long as there are connections between them. According to jurisprudence of the Supreme Court, this object of investigation can be extended if, in its course, evidence arises that point to the existence of an offense other than that which gave rise to the commission of inquiry and that deserves to be investigated, a situation called a crime found by the legal doctrine.

The definition of this object of investigation must respect the independence of the judiciary and the Public Ministry and the division of federal powers. In this sense, the Internal Regulation of the Federal Senate (RISF) determines that matters pertaining to the Chamber of Deputies, the powers of the Judiciary and the States cannot be listed as a determined fact to be investigated by a CPI. It is for this reason that the investigation of States and Municipalities in the case of the CPI the Pandemic can only take place with the object of transferring federal funds to these entities.

In order to make their work feasible, the CPIs have some investigative powers of the judicial authority, which, in order to be exercised, must be duly motivated. On the other hand, considering the principle of reserving jurisdiction, there are powers of judges and courts, mainly related to the restriction or withdrawal of individual liberty, which the CPIs cannot use during the investigation process.

Some investigative powers that the CPI CAN use:

  • Witness hearing.
  • Hearing of investigated and indicted.
  • Carry out Cross-Counting.
  • Coercive conduct of witnesses, but prohibited to investigated, as understanding of the STF.
  • Order arrest in flagrante – observing the Federal Constitution and the Penal Code.
  • Breach of banking, telephone (data), tax secrecy – the request must be made by collegiate and reasoned decision.
  • Search and seizure that respect the inviolability of the home.
  • Perform skills
  • Summon Ministers of States – in this case, the unjustified non-appearance characterizes a crime of responsibility that may support a request to initiate the impeachment process.

Investigative powers that the CPI CAN NOT use:

  • Determine other types of detention – such as pre-trial or temporary detention.
  • Breach of confidentiality of telephone and telematic communications – telephone or internet interception.
  • Order house search and seizure.
  • Determine unavailability of goods.

Witnesses and investigated persons called to give evidence have rights and obligations similar to those provided for in conducting a judicial investigation process. The main constitutional right that seeks to guarantee is not to produce evidence against oneself, since the duty to produce evidence rests with the prosecuting party. They also have the right to be accompanied by lawyers and to consult with them in private.

Witnesses called to testify are required to appear and can be coercively conducted if they do not appear without justification. They are committed to the truth and are subject to being accused of the crime of perjury if they present false information, which can lead to the CPI's arrest in flagrante delicto. This is a bailable offense, which can result in a sentence of 2 to 4 years of imprisonment plus a fine. However, it ceases to be punishable if the witness recants until the conclusion of the work of the collegiate.

The right to silence is guaranteed to the witness in two cases: if he judges that the answer can produce evidence against him; or if she is the target of investigations. This second hypothesis was the basis for an injunction granted to the former Minister of Health, General Eduardo Pazuello, who guaranteed him the right to remain silent in answers that could incriminate him.

On the other hand, the person called in the condition of being investigated, cannot be coercively conducted, has no obligation in telling the truth, and can remain silent.

The possibility of summoning the President of the Republic and governors to testify in CPI's is an object of legal controversy. In this discussion, the constitutional principle of separation of powers and the federative principle, which provides for the autonomy of States concerning the federal sphere, come into the debate. In the case of the Chief of the Federal Executive, the Federal Constitution does not explicitly foresee or restrict this possibility, but, on the other hand, there are legal precedents that can support the release of the testimony. As for the governors, there is a legal precedent of the STF that substantiates a decision authorizing these authorities not to appear to testify at the CPI. Thus, the tendency is that the summons of this nature approved by the commission to be taken to the decision of the supreme court.

Brief history of CPI's in Brazil

Although there is no consensus, historians, in general, claim that investigations conducted by the Legislative Power to raise information on issues of public interest originated in England, between the 14th and 17th centuries. Since then, this type of initiative has been adopted in several countries and the first registration in Brazil dates back to 1826 and had the Banco do Brasil as its object of investigation.

Of the seven Constitutions that the country had, only those of 1824 and 1937 did not bring provisions dealing with parliamentary inquiry committee and the first law that brought rules on the functioning of the CPI is the 1579/1952, still in effect. In each Constitutional Charter and historical period, the attributions and limits of this type of collegiate varied, as well as its use and results. Its possibilities of action were expanded by the 1988 Constitution, as the CPIs now have some of the powers of judicial authorities.

In the current democratic period, this instrument has been used several times and has also produced different results. The CPMI of PC Farias, held in 1992, investigated allegations of corruption involving the then-president Fernando Collor and which led to his resignation and impeachment process. In 1993, it was the turn of the investigations by the CPI on the Budget, which on a scheme for payment of bribes to congressmen to include amendments in the Budget that benefited ghost companies, supported the process and the impeachment of 6 deputies and caused the resignation of two others. Since then, other CPIs have been at the center of the national political scene, either because of the discussions and themes that they brought into focus or because of their consequences.

Perspectives

In terms of procedure, at the end of its work, a CPI produces a report with the conclusions of the investigation and forwards it to the Presiding Board. In addition to reporting the conclusions of parliamentarians, the report can propose bills and suggest the indictment of those investigated. In the latter case, the report will also be sent to the Public Ministry, which will evaluate the case. As the commission has several objects, it will have the possibility to deliberate separately on each one, including producing reports on one or more topics before the conclusion of the investigation on the others.

Regarding the results of a CPI, it is common to hear comments that it “will end up in pizza”, that is, it will not produce effective consequences. Or that “it is not possible to know how a CPI ends, only how it begins”, given the unpredictability of this process due to its political character and the diversity of developments it has already produced – from none to an impeachment process.

Regarding the Pandemic CPI, there are expectations regarding its use and its influence on some aspects of the political scenario, such as, for example, contributing to the electoral anticipation scenario. In this sense, the CPI may be used by senators as a space to damage the image of potential adversaries in the 2022 election or to protect state allies by keeping the focus and the strain of investigations in the federal government.

In this scenario, the president will depend more on his support base in the Federal Senate and, in return, he will have to signal with more positions and resources. Furthermore, the work of the CPI can organize the narrative around the Pandemic or even bring new facts that strengthen the viability of an impeachment process. In this way, the government cannot lose sight of its base in the House of Representatives, which must continue to be included in its budget and space demands in the government.

The military is also closely monitoring the progress of the work of the CPI, since the active general, Eduardo Pazuello, was Minister of Health and responsible for managing the pandemic for approximately 10 months.

References:

  • Federal Constitution of 1988 – Article 58, paragraph 3rd.
  • Internal Regulation of the Federal Senate – Articles 145 to 153.
  • Law 1579/1952 – Provides for the Parliamentary Inquiry Committees.
  • Law 10001/2000 – Provides for priority in the procedures to be adopted by the Public Prosecutor's Office and by other bodies regarding the conclusions of the parliamentary inquiry committees.
  • Jurisprudence of the Federal Supreme Court
  • “Federal Senate and National Congress – Commented Regiments”, authored by Mário Elesbão and published by Editora JusPodium.

Last Update: June 8th 2021, at 9 am.
Last document added on: 06/16/21, at 6pm.

Prepared by Umbelino Lôboteam.

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