Brazil Supreme Court Upholds Clean Record (Electoral Qualification) Law Based on “Voice of the People”

Brazil Supreme Court Upholds Clean Record (Electoral Qualification) Law Based on “Voice of the People”

In June, 2010, Brazil enacted the “Lei da Ficha Limpa” or “Clean Record Law” which aimed to prevent candidates who had a criminal record or a record of misconduct from running for political office in Federal, State or Municipal spheres.1

Pursuant to the "Clean Record Law", any politician convicted by a judicial or an administrative court will be disqualified as a potential candidate for political office for any level of government for a period of eight consecutive years.  The law applies to candidates even if a conviction is pending a decision by a higher court, or to cases in which the holder of an electoral mandate resigns in order to evade impeachment procedures, even if the resignation occurred before the Law was implemented.

The law states that a candidate will be considered ineligible when convicted by a final decision rendered by a judicial body.  The conviction must relate to an economic crime including against the public faith, public administration and public assets, against private property, against the financial system, the stock market and crimes related to the law that regulates bankruptcy, against the environment, or the public health.  Moreover, a candidate will be declared ineligible if having been found guilty of committing a crime for which the law determines a sentence of imprisonment such as: an abuse of authority; condemnation of removal from office or disqualification from public office; laundering or concealment of property; trafficking narcotics and similar drugs; racism; torture; terrorism and hideous crimes; reduction to a condition analogous to slavery; crimes against life and sexual dignity; and crimes committed by a criminal organization.

The Clean Record Law was a result of a people's initiative through civil society organizations, brought about by Brazilian voters concern of unpunished corruption.2 A petition with the signature of over 1.3 million voters began the impetus for the Law's enactment by Congress. Due to legal challenges, the Law had been postponed from enforcement.  However, this past February Brazil's Supreme Federal Court found the law to be constitutional.  Thus, it will be enforced for the upcoming 2012 elections.3

The Declaratory Actions of Constitutionality ("ADCs") 29 4 and 30 5 found the Clean Record Law constitutional by a vote of seven out of eleven Supreme Federal Court ministers.  The judicial case addressed the balancing of the constitutional right of presumption of innocence until proven guilty versus the need to sanction a politician who has potentially committed a criminal offense.  Plaintiffs argued against the law's enforcement based on a right of a presumption of innocence, the presumption being maintained until a final non-appealable decision.  Also, plaintiffs argued that the law would be unconstitutional if it sanctioned persons retroactively for actions committed before the law was enacted.6 The Bar Association of Brazil (OAB), one of the parties defending the constitutionality of the law, posited that a standard of a presumption of innocence cannot be infringed by enforcement because the law sets requirements to determine a candidate's eligibility for the electoral process rather than establishing a penalty.

In finding the enforcement of the law constitutional, the majority of the Supreme Court Ministers understood that the presumption of innocence is a principle to be applied to criminal law matters rather than electoral ones.  According to the Minister Joaquim Barbosa, for example, the claims of unconstitutionality of the Clean Records Law result from a narrow interpretation of the Constitution that would favor a minority of elected officials to the detriment of the whole society "that strives for moralization of Brazilian politics, so there is no more deception of the electorate, manipulation and false promises, so that voters begin to have real freedom of choice".7

In an interesting jurisprudential development for Brazil, in the decision most Ministers of the Supreme Court made it clear that it was necessary for the Court to consider the context of the formation of the regulatory text.  The regulatory text derived from an Act authored via a popular initiative that collected over a million signatures.  Popular initiatives were expressly established by the Brazil Federal Constitution of 1998 as follows:8

Article 14. The sovereignty of the people shall be exercised by universal suffrage and by the direct and secret voting, with equal value for all, and, according to the law, by means of: I - plebiscite; II - referendum; III - people's initiative.

Article. 61, Paragraph 2. The initiative of the people may be exercised by means of the presentation to the Chamber of Deputies of a bill of law subscribed by at least one percent of the national electorate, distributed throughout at least five states, with not less than three-tenths of one percent of the voters in each of them.(...)".9

 It is worthy to note at this point that trials that attract the attention of the media and public seem to have an influence on Brazilian Supreme Court decisions.  By example to this point, consider a 2011 Brazilian case that was heavily covered by the media because the defendants were important politicians and members of the government, including the governor the District Capital, Brasília.10 For a long time the courts understood that in order to prosecute a governor charged with criminal offenses, the authorization of the Legislative branch was necessary.11 In this particular case, a higher court (Superior Court of Justice) decided for the waiver of the authorization.  This decision was later confirmed in a televised session held by the Supreme Court (a.k.a. the "STF").  Only one of the judges, Mr. Dias Toffoli, voted in favor of the former understanding.  It is reasonable to ask whether the Supreme Court may have decided differently from ignoring the previous understanding but for the great attention paid by the media.12

The popular initiative leading to the Clean Record Law was considered influential to the Court when deciding the law's constitutionality because the Court stated that the initiative represented the "voice of the people".  Perhaps this case represents the Court's recognition that the growing interest of the popular press regarding the decisions of the Supreme Court have contributed to an increase in the public pressure on the decisions of the Court's judges.  Interviewed in August 2010 by "O Estado de SP", one of the top two newspapers in the State of São Paulo, about the broadcast of the Supreme Court's sessions, one of the most distinguished former judges of the Supreme Court, Mr. Eros Grau, declared, "The practice of televising the sessions cannot be justified. A judge must not be influenced by any sort of appeal, regardless of originating from the government, the media or the people. The decision must be of public knowledge but must not be poisoned by the public debate.  It is turned into public exhibitionism."13

Now apparently the great majority of the Supreme Court judges disagree with former Justice Grau, or at least do not consider that the broadcast of a Supreme Court session will influence the judges.14

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1. See Lei Complementar 135/2010, http://www.gabinetecivil.rn.gov.br/acess/pdf/leicom435.pdf

2. http://blogs.worldbank.org/publicsphere/node/5727

3. http://www2.stf.jus.br/portalStfInternacional/cms/destaquesClipping.php?sigla=portalStfDestaque_en_us&idConteudo=200861

4. See Acao Declaratoria de Constitucionalidade http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?incidente=4065372

5 http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?incidente=4070308

6. http://riotimesonline.com/brazil-news/rio-politics/ficha-limpa-anti-corruption-act-upheld-brazil/

7. http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADC29.pdf

8. http://riotimesonline.com/brazil-news/rio-politics/ficha-limpa-anti-corruption-act-upheld-brazil/

9. See Constitution of the Federative Republic of Brazil, articles 14 and 61, Paragraph 2. http://www.stf.jus.br/repositorio/cms/portalStfInternacional/portalStfSobreCorte_en_us/anexo/constituicao_ingles_3ed2010.pdf

10. http://g1.globo.com/Noticias/Politica/0,,MUL1444238-5601,00.html

11. Lei Orgânica do Distrito Federal, article 60, XXIII, http://www.cl.df.gov.br/pesquisa-de-leis-e-proposicoes. See also Constitution of the Federative Republic of Brazil, article 51, I, http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm

12. See http://www.dci.com.br/politica/supremo-tribunal-federal-mantem-arruda-preso-id215279.html

13. See http://www.estadao.com.br/noticias/impresso,lei-da-ficha-poe-em-risco-o-estado-de-direito,589608,0.htm

14. See http://www.conjur.com.br/2012-mai-10/opiniao-publica-nao-pautar-decisoes-judiciario-dizem-especialistas

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