Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – Tomorrow a three-judge panel of the Federal Court of Appeals (TRF) in Porto Alegre will decide whether to confirm, modify or overturn the lower court decision by Judge Sergio Moro that convicted former President Lula of corruption.

Michael Royster, aka The Curmudgeon.
Michael Royster, aka The Curmudgeon.

If the panel confirms the conviction, the “Ficha Limpa” law will come into play. Passed in 1990, the law declares criminals convicted of certain crimes ineligible for public office for eight years after their conviction, even if they are appealing the decision.

Because of widespread political support for Lula’s candidacy in 2018, questions have been raised about the Ficha Limpa law. The two most important are (1) does the law violate the presumption of innocence? and (2) does the law frustrate the will of the people, who should be able to vote for whomever they choose?

Brazil’s 1988 Constitution, like those of all democracies, provides for a presumption of innocence. Brazil’s criminal law, however, had long interpreted the presumption to mean that a convicted criminal cannot be jailed until all possible appeals have been exhausted and the decision becomes final.

In many cases, that means a decision by the STF, Brazil’s Supreme Court. Because appeals are so time-consuming, that usually means years of delay, and can even mean the statute of limitations will run out before the decision is final; hence no incarceration, even for the guilty.

Those who oppose Ficha Limpa maintain that ineligibility for elected office is equivalent to incarceration, because it prevents citizens from exercising the right to participate in the quintessential element of democracy—elections—to vote or be voted for.

Those who support Ficha Limpa dispute this, maintaining that ineligibility for office cannot be equated to incarceration, because it is not punishment. Moreover, they claim, as the prohibition is temporary, banned politicians can always return to politics. The latest example is former President Fernando Collor de Mello, banned under Ficha Limpa decades ago, who has just announced his candidacy for President.

The other argument is more political — under this theory, if Brazilian voters want to vote for someone who has been convicted of a crime, they have the absolute democratic right to do so.

The argument is similar to that which challenges the imposition of term limits on legislators who become ineligible after a certain number of years in office: just because someone has been a member of Congress for many years doesn’t mean they must retire.

The problem with this argument, which on its face seems plausible, is that it eventually leads to defending “rouba mas faz” politicians: those who steal, but get things done.

If politics is the art of the possible, and if you as a voter believe that a crooked politician will get done what you want done, why shouldn’t you vote for him?

The answer to that question is, no one should be allowed to profit from their crimes.

Sadly, all too often, elected politicians do profit from their elected positions. The Mensalão and Petrolão schemes uncovered by Lava Jato have shown just how deeply and widely the ill-gotten gains have been spread around Brazil’s corrupt politicians since Lula took office.

Therefore, in the Curmudgeon’s opinion, Lula should be subject to the Ficha Limpa ban.

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