Promoting female political participation and control of jus state puniendi: federal Law 13.831/2019 under the perspective of electoral sanctioning law

Abstract

To foment female participation in politics, art. 44, item V, of Law 9096/95, inserted by Law 12.034/09, imposes on political parties the obligationto allocate 5% of the funds received from the Party Subsidies for the development of “programs for the promotion and diffusion of women’s political participation”. These rules were changed by Law 13.165/15, which institutionalized disincentives to the implementation of this mechanism, authorizing the resources to be used to finance female applications (§§ 5-A and 7o). Such authorizations were declared unconstitutional by the STF in ADI 5.617/DF, which, however, allowed these same resources to be used in the 2018 electoral campaign. With the promulgation of Law 13.831/19, some transitional rules were introduced to regulate the effects of non-compliance with the transfer in question (art. 55-A, 55-B and 55-C), which were accused of promoting a “general amnesty” to political parties. Therefore, the aim of this paper was to analyze whether the promulgation of these rules really resulted in an “amnesty”, as well as if they were compatible with the current constitutional order. The conclusion was that the alterations promoted did nothing but crystallize the STF’s decision (in the opposing embargos in relation to ADI 5617) and, in addition, implement the previously consolidated jurisprudential understanding, respecting the values of legal certainty and the preservation of due legal process, indispensable when it comes to the exercise of the jus state puniendi, qualified as electoral sanctioning right.