Opinion, by Michael Royster
RIO DE JANEIRO, BRAZIL – “Throw the rascals out!” This cry is, today in Brazil, relevant to the “mensalão” scandal, in particular the question of whether three elected Federal Deputies who have been convicted by the STF of high crimes and misdemeanors can remain members of Congress.
The dispute is over who has the right to throw the rascals out—the Judicial or the Legislative branch of government. As this is written, the Presiding Justice of the STF has pronounced that the judicial sentencing of these Congressmen should include the loss of their seats in Congress, but the Speaker of the House has maintained that Congress, not the STF, is the sole judge of its membership.
The Presiding Justice bases his decision on Article 92 of the Penal Code. Other Justices, including the Revising Justice, feel that Article 55 of the Federal Constitution trumps this position. At this writing (Monday night) the vote was 4 to 4, with only 1 more vote to be counted. The final vote will be cast on Wednesday afternoon, December 12th. If you’re a lawyer or a pundit, the suspense is thrilling!
What Article 55 says is that a Federal Deputy shall lose office if (among other things) a final criminal judgment is entered against him. Subparagraph 2 of that Article stipulates that the loss of elective office shall be determined by an absolute majority of the Federal Chamber of Deputies (257 votes out of 513), after a vote carried out by secret ballot. In other words, even if the STF decrees the loss of elective office, that decision may not be binding on Congress.
Let’s be clear. According to the Speaker of the House, Federal Congresspersons are free to decide that their colleagues, even though convicted of crimes carrying jail terms, can and should remain as Deputies. Put another way, unless 257 Deputies vote to “throw the rascals out” the rascals will remain in. They call this democracy.
The Curmudgeon calls it scary, because there’s a very good chance that the Congressional coalition cobbled together by Lula, the Gang of Four and their corrupt cohorts, will close ranks and refuse to vote to throw the rascals out. PT’s official position is that the STF decision was wrong, no crimes were committed, and there are no rascals. Why then, should any of the party faithful vote to throw them out?
Public opinion will be hugely against this, but, when the vote is by secret ballot… Who’s to know? Certainly not the public. The secret legislative ballot is a relic from the days of the military dictatorship, when the Generals would unseat any Congressperson who did not hew the military line. In those days, Congressional secrecy was a pro-democratic measure. Today, it is anti-democratic.
A “secret” ballot will be secret only to the public and the press. You may be sure that Dilma and Lula will know every single vote; so will José Dirceu, José Genuino and the Gang of Four. They will ALL have access to the Congressional vote, and woe betide those party members who row against the tide.
If, as expected, the STF vote is 5 to 4 to include the loss of elective office in the decision, the Speaker of the House has threatened to disobey the decision. Unless cooler heads prevail, a constitutional crisis is brewing.
Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, fetched up on these shores exactly 35 years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)