Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – This week, the Brazilian Supreme Court (STF) is considering the arcane topic of whether a state legislature has the power to veto a court order to jail a member of that legislature.

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

STF analysis will hinge upon a specific question of Brazilian constitutional law: whether state and municipal legislatures are entitled to the same veto right as the STF recently granted the federal Congress.

The Curmudgeon will not treat this specific question, but rather a more philosophical one, namely: Should criminal behavior disqualify someone from (a) being elected to the legislature; or (b) continuing to serve if elected?

Brazilian law provides that people cannot stand for elected office if they do not have a “Ficha Limpa” – the absence of any criminal convictions.

This has proven popular in theory, but as the Lava Jato and related investigations have shown, in practice it’s a complete failure.

Brazilian voters continue to elect people whom they “know” to be corrupt, including some whose convictions have not become final.

Why do voters do this? No one knows all the reasons, but one is clear — if you assume (as most voters do) that all politicians are crooked, then you can, with a relatively clean conscience, vote for the candidate who, when elected, will get things done (“by hook or by crook” as the saying goes) that you, a voter, want done. “Rouba mas faz” is deeply ingrained in Brazilian political history.

Another reason is that crooked politicians are only perceived as siphoning off “government” money — most Brazilians simply do not connect government with their status as taxpayers. Put another way, people do not believe that “government” money is their money. “Government” is seen as something “out there”, largely irrelevant to the lives of ordinary people.

Another reason is historical. Brazil’s people suffered under hyperinflation for decades — the Curmudgeon has seen twelve zeroes lopped off the Brazilian currency since 1967. During hyperinflation, money loses one of its two essential aspects
— that of value — and becomes only a medium of exchange. People see billboard signs for public works budgets that have loads of zeroes after them but … that number is meaningless to most people.

Following this logic, if the voters want someone in elected office, executive or legislative, why should the people’s will not be followed? Why should the judicial branch of the government be able to bar someone from beginning to serve and continuing to serve, when no member of the Brazilian judiciary has ever been elected?

The corollary argument to this is that only the legislature should be the judge of the qualifications of its elected members — which is, incidentally, precisely what Article 1, Section 5 of the U.S. Constitution expressly provides in relation to Congress. Philosophically, only elected representatives of the people should be able to judge other elected representatives.

The Curmudgeon knows several counter-arguments to this controversial position, but he’ll leave these for further columns. Please stay tuned.


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