INDIVIDUAL PARDON AS A COUNTERPOINT TO THE PRINCIPLES OF THE SEPARATION OF POWERS AND ADMINISTRATIVE MORALITY

Abstract

The constitutional grace, or individual pardon, was used by former President Bolsonaro in 2022 to extinguish the punishability of his political ally, former Congressman Daniel Silveira. This political act was challenged by ADPFs (Arguições de Descumprimento de Preceito Fundamental - Allegations of Violation of Fundamental Precepts), which questioned its constitutionality and legitimacy, ultimately leading to its annulment by the Supreme Federal Court (STF). This study investigates the hypothesis that the constitutional grace, despite being explicitly provided for in the Constitution and infra-constitutional criminal legislation, ultimately violates the principles of the separation of powers and administrative morality. To test this hypothesis, the hypothetical-deductive method will be employed, analyzing whether the grace benefit truly aligns with the tripartition of the Powers and is not merely a vestige of the Moderating Power or the unlimited power held by the sovereign in past eras. By analyzing the origin of the institute, the separation of powers, and doctrinal and jurisprudential understandings, it is concluded that the individual pardon does not violate the separation of powers; however, despite being a political and discretionary act, it is not unlimited or absolute, and must comply with the limits of the Constitution, such as the principles of administrative morality.