Brazil’s Ficha Limpa (Clean Record) Legislation: Will it Run Over Corruption or Will it Run Out of Steam?

“Popular wisdom tells us that example comes from above. Corrupt politicians stimulate all kinds of corruption in society. When political representatives steal, they give their voters the green light to behave the same way. In such circumstances, blessed be society’s indignation!” Chico Whitaker, Ficha Limpa (Clean Record) Coordinator

Tião was a famous monkey in the Rio de Janeiro Zoo. For many Rio citizens, or cariocas, Tião was a symbol of carioca playfulness and irreverence, and his antics were sure to attract large crowds. As a confirmation that the average carioca is as humorously contemptuous as Tião, in the 1988 mayoral elections, the monkey received 9.5% of the popular vote. Tião was not running for mayor, of course, and votes for him were technically considered blank. But the event had a symbolic significance. The people of Rio wanted to burlesque the politicians who pretend to be principled despite their egregious record of corruption. On the other hand, the case of Tião offers a glimpse into a common but still unfortunate Brazilian attitude towards politics and politicians: if we can’t change it (or them), we should at least be able to laugh about it.

However, a new electoral measure sanctioned by President Luis Inácio Lula da Silva in June, the Ficha Limpa (Clean Record) law, will hopefully push Brazilians out of this compliant mode. The inspiring history of this law shows that the people are only as powerless as their readiness to mobilize. Of course, it is a little more complicated than that – jurists are already challenging some aspects of the law. Despite these legal challenges, the significance of the new initiative cannot be underestimated for two main reasons. First, its potential effect: it addresses the problem that is at the root of Brazilians’ sense of helplessness – the role of impunity in politics. Secondly, its implication: it suggests that Brazilians are finally waking up to their own set of political imperatives and responsibilities. A day may come when anti-corruption laws are no longer necessary, when voters understand that politicians are only as morally decrepit as their constituents allow them to be. Ultimately, national greatness and demeaning corruption cannot nicely co-exist.

Going after the Bad Guys

From an institutional point of view, Brazil is a vigorously democratic country. There are free elections, an independent Congress and judicial system and all of the usual constitutional guarantees typical of participatory democracies. But real world practices do not always reflect this formal framework. This is painfully evident in local as well as national elections. Candidates with corrupt backgrounds are regularly elected, and cases of vote-buying are rampant. But as the Mensalão (roughly translated as big monthly payment) scandal made clear, vote-buying also takes place within Congress and is not limited to election time. The cash-for-vote scandal began when on June 6, 2005, the Brazilian Congressional Deputy Roberto Jefferson told the Brazilian newspaper Folha de São Paulo that the ruling Workers’ Party (PT) had paid a number of Congressional deputies 30,000 reais (around US$12,000 at the time) every month to buy their votes and pass legislation favored by the ruling party. Although heads did roll as a result of the scandal, including that of President Lula’s Chief of Staff, José Dirceu, the government’s response did not live up to the gravity of the event. Dirceu’s recent activities suitably illustrate the problem of unaccountability in Brazil: according to Veja magazine Dirceu presently earns around 150,000 reais (around US$ 85,000) monthly as a lobbyist and is working with PT members to present to Congress an amnesty request that would reinstate his mandate. The drafters of Ficha Limpa, members of the Movement Against Electoral Corruption (MCCE), have targeted the new law directly at such politicians, who arrogantly perpetuate the culture of impunity and stand in the way of Brazil’s move towards democratic maturity and national greatness.

On June 4th 2010, President Lula signed into law the Ficha Limpa bill after the Chamber of Deputies and the Senate had approved it. The law toughens the eligibility criteria for public office. Politicians are henceforth considered ineligible to run if they have been convicted of the following crimes by more than one judge: racism, homicide, rape, drug trafficking, and misuse of public funds. It also adversely affects politicians who have engaged in vote-buying and have abused power or used influence for electoral manipulation. Furthermore, with Ficha Limpa, the penalty for candidates who violate the law will be harsher—they will be excluded from public office for eight years, whereas before, they were excluded for three. The law also sets a snare for politicians who use constitutional loopholes to dodge prosecution such as the reprehensible tactic of pre-emptive resignation, which has become customary in Brazilian political culture. In theory, Ficha Limpa will prevent the candidacy of politicians such as Joaquim Roriz, the former governor of the Federal District, who resigned from the Senate after authorities caught him on tape negotiating the division of 2 million reais (around US$ 1 million) from corruption schemes. According to the Brazilian newspaper O Estado de São Paulo, the new law could challenge the candidacy of 1614 candidates.

The People Speak

Another aspect of Brazil’s political culture that has allowed impunity to run amuck is the traditional passivity of Brazilians. Voters’ attitudes are alarmingly complacent. A popular saying that qualifies good politicians as those who “steal but get things done” says it all. It suggests not only that Brazilians expect all politicians to be corrupt, if not also inefficient, but also that they feel impotent against the prevalence of corruption in politics. The new law signals that things are beginning to change on this front.

The Ficha Limpa law was a popular initiative. According to the Brazilian Constitution of 1988, laws can be proposed in three different ways: by the legislative branch, the executive branch or through a popular initiative. A popular initiative is a legal instrument that allows the population to present bills to Congress. When the channel for a bill is a popular initiative, its drafters must meet certain conditions before the measure can be presented to Congress. First, at least 1% of the Brazilian voting population must endorse the pending legislation by signing a petition; signatories in a minimum of five states have to sign the petition; and at least 0.3% of each state’s voting population must be represented. Having met these requirements, on September 29th, 2009, Ficha Limpa organizers from the MCCE delivered the measure to Brazil’s Chamber of Deputies.

It is a sad truth that real change cannot come from above. It is unlikely that the Executive or the Legislative would propose a law that aggressively tackles corruption. Popular expressions common in Brasilia, such as “to cut one’s own flesh” and “not to legislate against yourself”, indicate politicians’ resistance to any measure that seriously halts corruption. MCCE members knew that the effort to clean up Brazilian politics would have to originate with the people, which is why they chose the popular initiative route. They also argue that problems such as vote-buying and corruption are of a cultural nature, and are therefore more likely to be resolved if the population is directly involved in the solution. Popular initiatives involve the public in the democratic process, from which they otherwise would feel excluded, while also raising the level of awareness of the issue at hand. The resulting self-education and empowerment can only be beneficial for a democratic society.

Technical Difficulties

Some jurists maintain that the legality of the Ficha Limpa law may be questionable. According to Article 16 of the Brazilian Constitution, alterations to the electoral system must be implemented at least one year before they are supposed to go into effect. The Superior Electoral Tribunal (TSE) ruled, however, that the new law will be applicable for the upcoming elections in October despite the fact that Ficha Limpa was passed in June. The second issue is the principle of retroactivity: a new law cannot be applied to cases that were decided before the measure was sanctioned. As such, the argument goes that only candidates who are convicted after June should be kept from running. But the TSE ruled that the law will also affect candidates convicted before it was sanctioned. The president of Electoral Studies of the Brazilian Lawyers Association, Silvio Salata, argues that Congress passed the law too hurriedly and without a proper debate about the legality of the law (2010 is an election year in Brazil, and no politician wants to look like he or she is defying popular will). Jurists now face the difficult task of preserving individual rights, such as not permitting the retroactive effect of a punitive law, while also promoting political morality.

The case of Paulo Maluf, a former mayor of São Paulo, illustrates some of the complexities of this debate. A target of Interpol, Maluf says he does not fear Ficha Limpa. He has been accused of a number of derelictions, including fraudulently overpricing wholesale chicken purchased by the municipality while he was in office. He was initially acquitted at first instance, but was later condemned by the Justice Tribunal, and is therefore still allowed to appeal. His case divided opinion. State prosecutor Antonio Carlos da Ponte says, “Maluf’s case fits the penalties of the new law perfectly. This gentleman would be in no position to register his candidacy.” Salata, on the other hand, argues that the new law does not apply to Paulo Maluf’s cases because they are either still in the judicial process or were decided before the Ficha Limpa law was sanctioned. “This is complicated. We can’t abide by the Constitution in some cases but not in others, right?” Salata asserted.

Currently, the Supreme Federal Tribunal (STF) may still decide to reassess whether the law applies to the upcoming elections. The question of retroactivity can be decided on a case-by-case basis, says Ricardo Lewandowski, Minister of the STF and President of TSE. Lewandowski assures Brazilians that “the law will stick”. The law should be applied rigorously, he believes, because it is an expression of the popular hunger for morality in Brazilian politics. While this is true, it may not be enough. Marco Aurélio Mellos, an ex-president of the TSE warns that many whose candidacies are denied will appeal to the courts, possibly reaching the STF. If the STF overrules the TSE’s decision, some candidates with questionable records will be able to run in November.

There may be a certain discrepancy between theory and practice when it comes to the application of the Ficha Limpa law. But as Mello acknowledges, it is not certain that the STF would overrule the TSE’s decisions if confronted with the question of retroactivity, and the body has not announced whether it will do so. Luis Fernando Vidal, the president of the Association of Judges for Democracy, thinks that the law could be a curse rather than a blessing. He fears that the Ficha Limpa law will impose a false sense of morality while allowing other infractions to continue.

Missing the Forest for the Trees

But a stronger sense of morality is just what Brazilian politics needs. Impunity presently rules Brasilia and makes politicians feel invincible. The judiciary should safeguard the rigorous application of Ficha Limpa because it will confront the lawlessness of the electoral system and install a sense of accountability at long last in Brazilian politics. Moreover, the judiciary should live up to society’s sense of outrage. If it limits the application of the new law, the STF will not only perpetuate an unacceptable status quo and embolden guilty politicians to continue to defy the law, but it will also frustrate the Brazilians’ enthusiasm for political reform. If judges do not apply the law forcefully, it will spell the triumph of judicial technicalities over the spirit of the law.

Moreover, while the new law may come into conflict with some provisions of the Brazilian Constitution, it also aggressively espouses a section of the Constitution where the fundamental principles of the Federative Republic of Brazil are laid out. The first article of the Constitution speaks of the reasons for the existence of the state, namely that it is the guarantor of rights of sovereignty and citizenship to its people. The third article refers to the objectives that Brazil should pursue as a nation, such as building a free and just society and guaranteeing the nation’s development. The Brazilian people exercised their rights of citizenship masterfully by means of the popular initiative. The judiciary will hopefully protect the electorate from politicians who prefer that people remain politically passive in face of their own malfeasance.

Also, if the STF overturns the TSE’s decisions, the Ficha Limpa law will be rendered less effective. The push for a free and just society, as the Constitution dictates, will thus be hampered. Finally, Brazil may be experiencing immense economic growth at the moment, but development will not automatically continue to flow to the Brazilian people if public funds leak out as a result of ongoing corruption. According to Marina Silva, a senator and presidential candidate in the upcoming elections, 3% of Brazil’s GDP is wasted through corruption. The word candidate evokes the adjective candid, which brings up sentiments of purity and transparency. No less should be expected from those who offer themselves to represent and lead Brazilians.

Conclusion

“A thief who absolves another thief gets 100 years of mensalão (roughly translated as big monthly payments)”. Thus goes an infamous Brazilian joke. It summarizes a heretofore depressing situation: in Brasilia, corruption runs free while in the rest of the country laughs about it. Ficha Limpa challenges status quo on both fronts: it punishes politicians on top and also, because it was a popular initiative, addresses the culture of impotence that haunts the Brazilian electorate. Hopefully the STF will not overrule the TSE’s decision to apply the law to this year’s elections and to previous cases. As society develops and becomes more enlightened, institutions must also advance so as to keep pace with the times.