Ficha Limpa Law goes into effect

The Federal Election Board (“Tribunal Superior Eleitoral – TSE”) which is actually a court (whose members are judges) has ruled 6 to 1 that the so-called Ficha Limpa Law can go into effect immediately – meaning it will be operational for this year’s general elections in October. The law was recently approved by Congress and sanctioned by president Luiz Inacio Lula da Silva.
The idea behind “ficha limpa” (clean criminal record) was to make politicians with criminal records ineligible because of the large number of people with criminal records who find safe havens in legislative bodies because it is so hard to prosecute them once they get in as elected office holders.

Ficha limpa arrived on the doorstep of the Congress in the form of a petition with over 1.6 million signatures and enormous popular support. With such strong, widespread backing, and such a clear threat to many politicians, it was at first shunted aside (“engavetada”), but, this being an election year, public pressure grew and it suddenly sailed through Congress – but not before being watered down.

As it stands now, the law says a politician is ineligible only after being found guilty by a court (“colegiado de magistrados”), as opposed to a single judge. And, here’s a big loophole, anyone found guilty before June 4, when Ficha Limpa was signed into law, can still run for office this year. Besides that, many experts see room for a constitutional question as court decisions can be appealed and the Brazilian Supreme Court has consistently ruled that individual rights cannot be curtailed before a final judicial decision (which can take a very long time).

The big question yesterday at the TSE was whether or not the law would go into effect for this year’s election cycle. Electoral laws in Brazil are supposed to get legislative approval at least a year before becoming law if they make changes in the electoral process (Article 16 of the Constitution). The majority of the judges followed two main lines of thought in their decision: first, the judges decided that Ficha Limpa will not have any effect on the electoral process (thanks to watering down in Congress), which they decided only begins on July 6, which, according to the TSE’s own rigid electoral timetable is the final deadline for all candidates to be formally registered (thus, resolving problems with Article 16); and, second, the judges made numerous references to the clear public demand in favor of the law.

The president of the Brazilian Bar Association (“OAB”), Ophir Cavalcante, expressed public sentiment by declaring: “Brazilian society wants more ethics in politics. This is a victory, it is a new moment in national politics.”