Supreme Decision Means Losers Are Now Winners in Brazilian Congress

Brazilian Congress Brazil’s Supreme Court has ruled that the Clean Criminal Record law known as “Ficha Limpa”, which makes politicians with criminal convictions ineligible for elective office, could not be used in last year’s general elections.

As the law was used in the October general elections, a series of “corrections” will have to be made: some politicians who have taken seats in Congress will be out and others in.

In April 2010, Ficha Limpa arrived unsolicited, on the doorstep of the Chamber of Deputies in the form of a petition with 1.6 million signatures (over time, on the Internet, another 3 million adherents signed it). Its genesis dates back all the way to 1997, when a civic organization began calling for political reforms.

In the beginning, deputies did not want to do anything with the Ficha Limpa petition. But public clamor in favor of the law grew. The Chamber of Deputies, and then the Senate, passed the law. President Luiz Inácio Lula da Silva signed it into law in June 2010. That is, close to 90 days before the October general election.

The Brazilian political landscape is full of elected officials with legal problems. Elective office has proved to be safe haven where politicians with criminal records are shielded from prosecution. The population was angry and frustrated with the election system. They were fed up with office holders who had big smiles and long rap sheets.

But, because Brazilian voters have a dirty record of voting for bad politicians, the idea behind the Clean Criminal Record law was to go after the politicians themselves, making them ineligible to run for office. After Lula signed it into law, the population demanded the immediate enforcement of Ficha Limpa.

Overnight, the question of whether or not the Ficha Limpa law was binding on the October 2010 general elections became a burning issue. A legal issue.

Ficha Limpa lawsuits made their way to regional electoral courts (Tribunal Regional Eleitoral – TRE) and then to the Federal Electoral Court (Tribunal Superior Eleitoral – TSE) where the court voted to make Ficha Limpa binding in October. That ruling was immediately appealed to the Supreme Court.

At the Supreme Court, an impasse: the vote was tied 5 to 5 and during the election cycle it stayed tied (a tie caused by the retirement of the eleventh justice in August 2010 and the fact that another justice was not nominated before the elections).

The eleventh justice took his seat on the court at the beginning of March and on March 23 the country got a final decision on Ficha Limpa.

The ruling that the Ficha Limpa law will be valid only beginning with elections next year was criticized by the Movement to Combat Electoral Corruption (Movimento de Combate à Corrupção Eleitoral -MCCE), which coordinated the collection of signatures on the petition that got the law rolling.

“We respect the decision. But we regret the postponement of an introduction of more ethical standards in elections,” declared Marlon Reis, a judge who is one of the MCCE leaders. “We can continue to hold our heads high. We are still working to get a political reform for our society,” he declared.

Reis points out that one of the peculiarities of the Brazilian voting system is the proportional election of deputies where candidates with long coattails can “pull” a bunch of other candidates in his political party into office even though the others have few votes.

Reis said that a consequence of the Ficha Limpa law was that if one of the long-coattail candidates loses his seat, the other candidates he pulled in will also lose their seats.

Bar Association

The decision that the Ficha Limpa law is valid only for the elections beginning in 2012 (when mayors and city councilpersons will be elected) got a mixed reaction in the Chamber of Deputies.

The leader of the government, deputy Cândido Vacarezza (PT-SP) said the court made the right decision. “As the popular saying goes, Supreme Court decisions are not to be disputed, they are to be obeyed. In this case, the court got it right. The law cannot be retroactive when it is detrimental to the accused.”

However, the leader of the PPS, Rubens Bueno (PR), criticized the ruling pointing out that it was decided by one vote, that of the newest justice, Luiz Fux. “The new Supreme Court judge frustrated expectations in all of society. A very popular law has been turned to dust. It is a blow to many who fought to improve the quality of politics in this country,” he declared.

Another person who lamented the Supreme Court decision was the president of the Bar Association (OAB), Ophir Cavalcante. But he was optimistic about the future. “This is no time to cry over spilled milk. We don’t like it, but it is a Supreme Court ruling. We just have to carry on and look ahead to the future,” he said.

According to Cavalcante, with the Ficha Limpa law the political reform has begun. “Civil society has taken the first step. The demand for a more ethical political process is crystal clear.”

OAB’s president pointed out that Ficha Limpa was a response to public demand and frustration with “various politicians who had rap sheets as long as their arms, thumbing their noses at society and the courts by means of endless legal maneuvers to postpone final decisions on their cases as they obtained safe haven in elective office.”

“We are frustrated, but this ruling does not mean we have been defeated. The Ficha Limpa law is constitutional and will be in effect in the next elections,” declared Cavalcante.

In practical terms, the Supreme’s decision means that politicians with legal problems who had enough votes to be elected last October in the general elections can take office. Many of them were not allowed to do so when electoral courts ruled them ineligible under the Ficha Law. Now they will unseat their opponents who were seated as a result of lower (Electoral Court) rulings.

The ruling will have a direct effect on at least four senate seats: Cassio Cunha Lima (PSDB, Paraíba state) will get the seat of Wilson Santiago (PMDB, Paraíba); João Capiberibe (PSB, Amapá) will substitute Gilvam Borges (PMDB, Amapá);Jader Barbalho (PMDB, Pará) will substitute Marinor Brito (PSOL, Pará) and Marcelo Miranda (PMDB, Tocantins) will substitute Vicentinho Alves (PR, Tocantins).

However, it seems that the courts will still have to decide on each case individually before any changes in seating arrangements actually take place. It should also be noted that there is a backlog of at least 30 other Ficha Limpa cases in courts.

Meanwhile, the executive secretary of the Movement for Combat of Electoral Corruption (MCCE), Jovita José Rosa, said the justices made an erroneous interpretation of the law.

“In our opinion, and that of many jurists, Ficha Limpa does not alter the electoral process. The law deals only with the question of eligibility and cannot be considered a penalty. Candidates were registered under the Ficha Limpa law. Our feeling is one of deception. However, we are now certain that political reform is more than ever urgently necessary.”

Legal Problems

In sum, as a result of the Supreme Court ruling Wednesday, March 23, the Ficha Limpa law is to be legally binding only in 2012 and all politicians barred from taking office following the general elections of October 2010 because of legal problems under the Ficha Limpa law may now take office.

The vote in the Supreme Court was 6 to 5, with the new justice, Luiz Fux, joining five other justices in a decision based on the following jurisprudence: First, Article 16 of the constitution, which states clearly that any law that alters election processes must be in effect for at least a year before it becomes binding (“anualidade” or “princípio da anterioridade”).

Second, the “presumption of innocence” principle (the idea being that although some Brazilian politicians have rap sheets as long as their arms, until a final judgment they must be presumed innocent). And, third, Fux and his five colleagues ruled, in principle, against a retroactive law. The fact is that Ficha Limpa made politicians ineligible to run for office in October 2010 because of crimes committed before October 2010.

However, the other five Supreme Court justices claimed Ficha Limpa did not alter election processes (the matter of eligibility being separate) and based their interpretation on Article 14 of the constitution, which states clearly that elected officials must be examples of probity.

The president of the Senate, and former president of Brazil, José Sarney (PMDB, Amapá), declared that he believed the Ficha Limpa law should have been in effect for the October 2010 general elections.

Sarney explained that he did not see any reason for the Supreme Court to overturn a law approved by the Congress and sanctioned by former president Luiz Inácio Lula da Silva. Sarney pointed out that the decision will have what he called difficult political administrative consequences.

“It is complicated to modify this law at this time. The election is over and a number of Ficha Limpa judgements have been completed,” he said. Sarney then took a jab at the Supreme Court, saying that there has been an excessive number of cases in which the judicial branch has “questioned” legislative decisions. Sarney called the process “the judicialization of politics.” And he was definitely not praising the tendency.

In Sarney’s opinion, political parties have a duty to define who their candidates will be. “The parties are supposed to make a selection of those it believes will best represent them. It is natural for them to select people who will get the most votes and the people who get the most votes should be the best candidates.”

Winner Now Loser

Senator Marinor Brito (P-SOL, Pará), has a seat in the Senate because her opponents in the October general elections, Jader Barbalho (PMDB) and Paulo Rocha (PT), were both ruled ineligible by electoral courts under the terms of the Ficha Limpa law.

Both Barbalho and Rocha got more votes than she did. Now, with the Supreme Court ruling that Ficha Limpa was not in effect during the October elections, she stands to lose her seat.

Senator Marinor criticized justice Luiz Fux for his vote. Senator Marinor pointed out that when Fux was recently questioned at Senate hearing regarding his nomination for the Supreme Court, he had a different opinion.

“Justice Fux contradicted himself. In Senate hearings, he said Justice cannot turn its back on the law’s intentions. But, now he has turned his back on the intentions of  Ficha Limpa” she said, pointing out that proof of the popular support for the law was evident in the fact that 70% of candidates accused of Ficha Limpa violations lost their elections in October.

Senator Marinor said that she and her lawyers were studying whether or not to put up a legal battle to save her seat in the Senate.



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