Ficha Limpa

Ficha Limpa (English: Clean Slate) or Supplementary Law no. 135 of 2010 is a Brazilian act that amended the Conditions of Ineligibility Act (Supplementary Law no. 64 of 1990). It is the forth bill proposed by direct people's initiative to become law in Brazil.^[1] It was devised by Judge Marlon Reis and received about 1.3 million signatures before being submitted to the National Congress.^[2]

The act makes a candidate who has been impeached, resigned to avoid impeachment, or convicted by a decision of a collective body (with more than one judge) ineligible for eight years, even if there is still the possibility of appeals.^[3]

The project was approved in the Chamber of Deputies on May 5, 2010 and by the Federal Senate on May 19, 2010 by unanimous vote. It was sanctioned by the President, becoming the Supplementary Law no. 135 of June 4, 2010.^[4] In February 2012, the Supreme Federal Court (STF) deemed the law constitutional and valid for the next elections to be held in Brazil, which was considered a victory of the position advocated by the Superior Electoral Court in the 2010 elections.^[3]

Origin

The story of Bill Popular 519/09 begins with the campaign "Fighting electoral corruption", in February 1997, the Brazilian Commission for Justice and Peace - CBJP, the National Conference of Bishops of Brazil - CNBB. This project continued the Fraternity Campaign 1996, CNBB, whose theme was "Brotherhood and Politics."

It was delivered to Congress on September 24, 2009, with 85% of the signatures collected in parishes and dioceses CNBB (24 September 2009).^[5] was approved after a national campaign for its approval, the Clean Record campaign, led by the Movement to Combat Electoral Corruption (MCCE).^[6] The move worked over a year to collect 1.3 million signatures (1% of the electorate national) in 26 states of the federation and the Federal District.^[2] The campaign aimed to send the House of Representatives a bill of popular initiative. Also included in mobilizing internet through Twitter, Facebook, Orkut and the Brazilian chapter of Avaaz, a global network of activists to mobilize the Internet.^[6]

Evaluation of the Superior Electoral Court

The first legal challenge of Clean Record

The first major challenge to the Clean Record Act for elections took place in the Supreme Electoral Tribunal, cnoverning the General Elections of 2010, when the court was presided by Justice Ricardo Lewandowski. By six votes to one, Justice Marco Aurélio's vote prevailed, holding that the law would apply to that year's election.^[7] Lewandowski, as president of the TSE, visited many Regional Electoral Courts, seeking the enforcement of the law.

Visiting TRE Ceará, on 29 July 2010, the then President of the Supreme Electoral Tribunal said

This guidance was fundamental to the Regional Electoral Courts and judges from around Brazil were safe with the guidance of TSE and applied the Clean Slate Law to the elections.^[8]

These are some of the remarks of the President of the Supreme Electoral Tribunal and Justice of the Supreme Court, Ricardo Lewandowski, in his vote of 36 pages, in which contends that the Clean Record Act already applies to the 2010 elections and should have an effect on Applicants convicted or who resigned to escape impeachment, even before the new rules come into force. [10]

For Lewandowski, the Law of Clean Record puts "filter" in Brazilian politics.^[10]

Evaluation of Supreme Court

Supreme impasse

Interior of the building of the Supreme Federal Court building

After the electoral court decision that upheld the validity for the 2010 elections, on account of criticisms made by members of the Supreme Court against the application of the law, as Justice Gilmar Mendes and Marcus Aurelius. Hence several candidates barred by law from Clean Slate entered the justice toward the Supreme, for the right to bid on the grounds that the law is unconstitutional or that she could not count for that year since there is another law contrary to changes in the electoral process in the same election year.

Those who were in favour of law enforcement that year claimed, among other things, that the law would not change the election process, but only the rules for registration of candidates.

On Sept. 22, less than a month to the elections, the justices of the Federal Supreme Court (STF) began the trial of the case of Joaquim Roriz, a former senator who resigned in 2007 to escape a lawsuit for breach of parliamentary decorum. So Roriz, trying to fight the government of the Federal District for the fourth time, had his record challenged by lower courts. The outcome of this trial was important because it would define all other cases in that election.

After Justice Carlos Ayres Britto, rapporteur of the case, [12] voted in favour of the law to be applied against candidate Roriz, President Cezar Peluso interrupted the proceedings to raise the possible formal inconstitutionality of the law. This caused surprise in the other magistrates, and after a standoff, justice Dias Toffoli asked for in chambers review. [13]

The trial resumed the very next day, 23. And the vote of the judges was tied with five justices voting in favour and five against: In favor: Carlos Ayres Britto, Carmen Lucia, Joaquim Barbosa, Ricardo Lewandowski, Ellen Gracie Northfleet. [14] Cons: Gilmar Mendes, Dias Toffoli, Marco Aurélio Mello, Celso de Mello, Cezar Peluso. [14]

Stalemate

The court had at the time of the trial only ten justices, since justice Eros Roberto Grau retired voluntarily on August 2, 2010 [15] and the position had not been filled.

Being full court with an even number of justices and taking the vote tied at 5-5, the question arose which result declare. After intense arguments betwhen the justices, Cezar Peluso, the chief justice, chose to suspend judgement without announcing the result. It was not given by the full court a forecast for the resumption of the trial, but according to a O Globo report, [14] the "expectation is that the justices will return to the issue next Wednesday, four days before the election." The report also noted that possible results, according to the votes cast:

• Ricardo Lewandowski, Carmen Lucia, Joaquim Barbosa, Ellen Gracie and Carlos Ayres Britto (rapporteur of the case) propose that the decision is maintained TSE, i.e. that applies to Clean Record Act already this year;
• Antonio Dias Toffoli, Gilmar Mendes and Marcus Aurelius suggest that the court wait for the appointment of a new justice, so that the court decides the vote using the newly named casting vote, or that such a vote is given by the president

President Cezar Peluso, refused to have his vote be counted twice, arguing he was not a "despot". [14]

Decision

The Supreme Federal Court ruled in 2010 that the Clean Record law applies to that year's elections and applies to cases of resignation of the political elective office to escape impeachment process, even in situations that occurred before the rule of law.^[11][12][13] The trial, this time deciding on the case of Congressman Jader Barbalho, again ended in a draw.^[11] Ricardo Lewandowski, Carmen Lucia, Ellen Gracie, Joaquim Barbosa and Ayres Britto again manifest by the immediate application of the law. Were against Marcus Aurelius, Dias Toffoli, Gilmar Mendes, Celso de Mello and Cezar Peluso.^[12] As a tiebreaker, by seven votes to three, it was decided that they would use Article 205 of the by-laws of the Supreme Court which says that "having all justices voted, unless prevented or licensed by the remaining period exceeding three months, the impugned act shall prevail. "well worth the decision of the Superior Electoral Court applicability in the elections of 2010.^[11][12][13]

Setback

On March 23, 2011, the validity of the election law was overturned in 2010 by 6 votes to 5 the Supreme Court. The vote of Justice Luiz Fux - who had assumed office a month before, after the retirement of Eros Grau - ruled invalid the law invalid, following a provision of the constitution that determines that any law that changes the electoral process will only have effects - and this is the case - not worth the elections for up to one year from the date of its validity.^[14]

The decision of non-law enforcement directly benefited several candidates whose eligibility had been barred because of legal actions, such as Jader Barbalho, Joaquim Roriz and John Capiberibe.^[15] The Clean Record Act takes effect only after the elections municipal 2012,^[16][17] and will be applied only if actually pass another vote to decide on its constitutionality.^[18]

Despite the constitutional basis for law enforcement, there were protests by society and some politicians such as Senators Marinor Brito,^[19] Heloisa Helena^[20] and Pedro Simon, who remembered the popular mobilization and society entities for the civil construction of democracy in Brazil,^[21] and that the Law of Clean Record was popular initiative and had over 1.6 million signatures.^[22]

Constitutionality

The Order of Attorneys of Brazil (OAB) filed a declaratory action of constitutionality of the law, expected to be tried in the second half of 2011. [28] The trial was suspended since the beginning of November until the 28th due to a request from justice Joaquim Barbosa for in chambers review. [13] That said at the time that made this request to avoid a new tie, and only release again when the House was complete. [13]

Besides the validity (from when she would apply) the law was under discussion in the Supreme constitutionality of the provision itself. This discussion was initiated by a lawsuit filed by OAB that tries to make no more doubts about the constitutionality of the law. [29]

After that two more actions to be entered on the subject, and currently ongoing actions are:

• ADC 30, [30] proposed by the Federal Council of the Bar Association of Brazil (CFOAB);
• ADC 29, [31] proposed by the Popular Socialist Party;
• ADI 4578, [32] proposed by the National Confederation of Liberal Professions (CNPL).

The three actions were tried jointly. [33] The plenary session on February 15, 2012 (Wednesday) was closed, suspending the trial, scheduled to resume on February 16, 2012 (Thursday). [34]

They expressed the parties as follows:^[23]

• the Solicitor-General of the Union, Luís Inácio Adams, the Attorney General of the Republic, Roberto Gurgel, the national president of the Bar Association of Brazil, Ophir Cavalcante, and the Popular Socialist Party, the constitutionality of the law, argued, also, its applicability the events that occurred before 2012, when there will be registration of candidates for the upcoming municipal elections;
• the National Confederation of Liberal Professions protests against sub-paragraph "m", section I, article 1, the LC 64/90, with the wording given by LC 135/2010, under which are ineligible "those who are excluded of the profession, by the penalty decision of the competent professional body, due to ethical and professional infraction for a period of eight (8) years, unless the act there been annulled or suspended by the judiciary."

Result

On February 16, 2012, the Supreme Court ruled that the law's "Clean Slate" did not violate the Brazilian Constitution and, therefore, is valid for the 2012 elections and elections for the next election to come.^[3]

STF justices, voted 7-4 in favour of the law. The affirmative votes were based on the "principle of morality," which appears in the ninth paragraph of Article 14 of the Constitution of Brazil and says that "supplementary law shall establish conditions of ineligibility to protect the administrative probity, morality for the exercise of mandate, considered the candidate's past life."

The four dissenting votes were argued on the basis of the principle of presumption of innocence, provided for in section 57 of Article 5 (an entrenched clause) of the Constitution of Brazil, which says that no one shall be considered guilty until a final and unappealable penal sentence. How to Clean Record Act says that anyone who is convicted of a collective body, even though there is possibility of resources, will become ineligible, the justices opposed to the constitutionality of the law deemed that section of the legislation as unconstitutional. However, justice Ricardo Lewandowski said the presumption of innocence applies to criminal cases, not being wide enough to reach the text of the Clean Record.^[3]

Justices Carlos Ayres Britto and Rosa Weber, during the arguments of their votes in favour of the law, stated:^[3]

Legacy and laws derived

In Novo Hamburgo a law was proposed to prohibit convicted persons, among others, for crimes against public faith and popular economy from being appointed to executive positions in the administration of the city.^[24] The city already had a similar law.^[24]

In Ijuí - RS, on March 5, 2012 was enacted the Law of Clean Record Hall (Law No. 5586) by the President of the City Council disciplining appointments in committee and functions gratified in the bodies of the executive and legislative branches.^[25]

In 2012 many municipalities are adapting their legislation to implement the Clean Record.^[26]

Criticism

The law provides for the ineligibility of candidates who have been found guilty by courts of account, among other associations, without, however, the conviction was final and unappealable. Thus, argue that the law goes against the LVII subsection of Article 5 of the Constitution of Brazil, the clause concerning the presumption of innocence.^[27] And furthermore, how these courts and entities does not hold the last word in the Brazilian courts, justice Gilmar Mendes and columnist Reinaldo Azevedo believe that a conviction would bar candidates addict would not necessarily be convicted in court. So could create up several courts with broad discretion in decision outside the legal framework. For instance, courts of accounts that can not pass the bill mayors, who would thus ineligible. Since the appointment of judges of the courts of account is made by state governors, it is feared the political use of state courts account, making ineligible mayors opposing the state government. Moreover, it is feared that the legislation hurts the principle of "presumption of innocence", becoming ineligible innocent people.^[28][29]

Number of candidates barred

To this list are considered the number of candidates released by the Senate on record clean before the elections.^[30][31]

Position	State	Region	In 2012	In 2010
	Brazil		(1340)	136
1	Roraima	North	N/A	(?)
1	São Paulo	Southeast	337	(?)
2	Ceará	Northeast	189	(?)
3	Minas Gerais	Southeast	153	16
4	Pernambuco	Northeast	85	3
5	Rio de Janeiro	Southeast	64	10
5	Paraná	South	(64)	3
6	Para	North	45	4
7	Paraíba	Northeast	43	10
8	Tocantins	North	41	1
9	Santa Catarina	South	38	3
10	Mato Grosso	Midwest	35	5
11	Piaui	Northeast	(31)	2
11	Bahia	Northeast	(31)	(?)
12	Maranhão	Northeast	28	(?)
13	Rio Grande do Sul	South	25	5
13	Sergipe	Northeast	25	(?)
14	Rio Grande do Norte	Northeast	23	(?)
15	Amazon	North	19	(?)
16	Mato Grosso do Sul	Midwest	13	3
16	Rondônia	North	13	(?)
17	Goiás	Midwest	(10)	(?)
18	Alagoas	Northeast	7	5
18	Amapá	North	7	1
18	Distrito Federal	Midwest	(7)	1
19	Espirito Santo	Southeast	5	6
20	Acre	North	2	9

Observations in this table:

• The data refer to quantitative accumulated until October 2012;
• "N/A" means that the Regional Electoral Court for the state is not informed about the Act barred by the state's Clean Slate.

See also

• Corruption Perceptions Index

References

External links

• FichaLimpa.org
• Ficha Limpa on Twitter