Brazil’s Clean Criminal Record (Ficha Limpa) aims to moralize Brazilian politics, establishing some ethical standards. The idea is simple: candidates with criminal records will be ineligible to run for office.
But what exactly is a criminal record? After much debate, the Brazilian Congress decided, because there are a lot of rogue judges out there, that it would have to be a case that has been decided by more than one judge; in other words, by a group of judges.
However, in a series of rulings, the Supreme Court has consistently said that a politician can only be barred from running for office because of criminal charges after the case has exhausted all appeals and reached a final decision. That is a hard call in Brazil where the appeal process seems to be endless and can drag for years on end.
It turns out that politicians are not the only people worried about the new law. Now, judges are complaining that Ficha Limpa cases could overwhelm them. Today, Monday, July 5, at 7:00 pm, is the final deadline for registering candidates.
Presidential candidates are registered at the TSE (Federal Election Board), but all other candidates are registered at regional electoral courts (TREs). If a registration is challenged, the case should go the TSE. But the TSE examines such cases only on two days each week, Tuesday and Thursday, at evening sessions.
Two judges on the TSE (Marcelo Ribeiro and Ricardo Lewandowski) have optimistically said that any controversial points not resolved by regional courts should go to the TSE to be resolved on a case-by-case basis.
That does seem optimistic in light of the fact that the site www.congressoemfoco.uol.br says that around 250 members of the Congress have legal problems that could make them ineligible under Ficha Limpa. And in the state of Rio de Janeiro, 37 out of 70 deputies in the legislative assembly have the same problem.
Luis Salata, president of the Electoral Studies Commission of the São Paulo Bar Association (OAB-SP) says he believes there will be a backlog in the registration phase making it difficult for the courts to meet deadlines.
One possible solution would be for the calendar to remain in effect, candidates whose registration is challenged would be allowed to continue campaigning and then have the case decided after the election – that happens now, and often the decision is long (years) after the election.
Justice (Supreme Court) Marco Aurélio says cases should go as quickly as possible to the Supreme Court. He says that will head off congestion and possible injustice. “The Supreme Court will decide what prevails in this case: the Constitution or the Law.”
This is a reference to the fact that the constitution says one thing and the Ficha Limpa law says something else: the constitution says that any changes in electoral law must be made a year before elections (“annuality principle”), and that a retroactive law can never be detrimental to defendants (“the law cannot be retroactive to harm”).
In both cases the Ficha Limpa law does the opposite: having been signed into law only on June 4, it will be operational for this year’s October elections. And it is retroactive, barring politicians with convictions before June 4.
The ruling by the Federal Election Board that the Ficha Limpa law is in fact retroactive and does make politicians with convictions in the past ineligible is going to have consequences at the political party level. Parties will be forced to review their own ethical standards and be more rigorous selecting candidates.
Deputy Antonio Carlos Junior (DEM, Bahia state) says that parties will be more careful about who they select to run for office, although it will not be an easy task. Parties will have to reeducate members and draw up ethical codes, he said.
Senator Álvaro Dias (PSDB, Paraná), the vice leader of the party, said the changes were going to be a “natural consequence” of the new law. “Parties will have to be more rigid or their candidates will be rejected by the TREs. Candidates that were possible have suddenly become ineligible,” he pointed out.
Senator Pedro Simon (PMDB, Rio Grande do Sul) said he saw the law as a step toward ending impunity in Brazil and proof that the idea that “nothing ever changes in Brazil,” is wrong. Simon pointed out that the law was the result of popular pressure (it arrived at the Congress in the form of a petition with over 1.6 million signatures).
However, deputy Cândido Vacarezza (PT, São Paulo), leader of the government in the Chamber of Deputies, said he saw serious problems with the legislation.
“I question the legal basis of Ficha Limpa. There is the principle which requires a law changing the rules of an election to be put in place at least a year before the election. Then there is the retroactive aspect that is detrimental to defendants, something that runs counter to a fundamental part of our jurisprudence.”