When defending that the Constitution be changed to end the possibility of reelection, senator and presidential candidate Flávio Bolsonaro (PL-RJ) said that such a measure should apply to himself, if elected, and signaled that it would be up to Congress to define the length of his mandate – whether four or five years.
Constitutional law professors interviewed by Folha say that, although there is no problem with Congress increasing the president's term of office by one year in itself, determining that this change would apply to someone already in office could be declared unconstitutional by the STF (Supreme Federal Court).
There are, on the other hand, those who say that this type of measure is in a gray area, although there is a consensus that the most appropriate would be to provide for a transitional rule.
"A proposal in this case would be unconstitutional to me because it would violate the immutable clauses, specifically in relation to the meaning of direct, secret, universal and periodic voting", says Emilio Peluso Neder Meyer, professor of constitutional law at UFMG (Federal University of Minas Gerais).
"It would mean that the electorate sovereignly decides, grants someone a four-year presidential term and, next thing you know, the person is serving five," he says.
Ana Laura Barbosa, professor of constitutional law at Insper and FGV Direito SP agrees: "When people go to the polls to elect a president, they know the length of the term for which they voted."
"Without a transition rule, a constitutional amendment of this type applying to the incumbent immediately would be unconstitutional, precisely because it changes the rules on term length in the middle of the game."
Rubens Beçak, professor of constitutional law at the Faculty of Law of Ribeirão Preto at USP, has a similar understanding. "Whoever is granting the eventual mandate for the elected president is working with the rules of the game, four years," he says. "So Congress, in the event of approving an increase in the presidential period, would be expanding the will of the voter, and I have doubts whether this is possible."
Daniel Sarmento, professor of constitutional law at Uerj (State University of Rio de Janeiro), in turn, assesses that the topic is complex, and it is not possible to say with certainty whether it is a constitutional measure or not.
"It's a gray area," he says. "Ideally, when you make a change about term extension, it shouldn't apply to the proponent of that change or the current term. It should apply to the other. Now, saying that the ideal corresponds to the wording of the immutable clause requires an argumentative effort."
Sarmento's understanding is that there is no permanent clause in the Constitution that deals exactly with this issue, and that talking about restricting the right to vote by increasing the term of office by one year is not something obvious. "It's not talking about something like doubling the mandate, it's not something abolishing an election."
He even points to the precedent of the 1997 reform that allowed re-election, something with greater impact, and which was already valid during the term of then president Fernando Henrique Cardoso.
In March of this year, senator Flávio Bolsonaro presented a PEC proposing the end of re-election for the Presidency. The text did not address the issue of term time.
This month, after coming out ahead in the results of the polls in the first round, Flávio said he defended that the end of the re-election would already be valid for his mandate and signaled that Congress could define a change in the mandate.
"I am the author of the PEC and I will use the political capital that a newly elected president has to get this approved in Congress so that it can serve during my term. And then, whether it will be four or five years, whether it is valid for governor, mayor, the legislative process will decide", he stated.
In 1994, the amendment that changed the president's time in office from five to four years established that it would only come into force the following year – when there would be a change of mandate.
The PEC itself that is being processed in Congress that deals with the end of re-election, in addition to a series of other points, provides for a transition rule regarding time in office.
The report approved by the Senate's CCJ (Commission on Constitution, Justice and Citizenship) in 2025 says, for example, that the term of office of the president and governors elected in 2026 and 2030 would be four years. And only from 2034 onwards would it increase to five years.
Rules about relatives
When talking about the proposal to end re-election, Flávio also argued that it should include a prohibition on immediate relatives competing for the same position.
"It's Congress that makes the law. But even when it comes to third-degree relatives, it's not just me, it's my father, too. There was some talk that [Jair] Bolsonaro could be a candidate for vice president. No. If I'm president of the Republic from 2027 onwards, no relative of mine can be a candidate," said the senator.
