Opinion: Brazil’s False Election “Dilemma”

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Seven Sundays from now, Brazilian citizens will go to the polls to elect a new President from among the eleven candidates proposed by Brazil’s myriad political parties.

The polling process has now begun in earnest, and one thing seems clear — former President Lula, albeit in jail for corruption, is by far the most popular candidate for President.

Lula’s popularity, according to NYU Professor and former Mexican Foreign Minister Jorge Castañeda in a recent New York Times opinion article, has created a dilemma between “democracy” and the “rule of law”.

Professor Castañeda holds that, in this case, democracy should trump the rule of law, and Lula should be an eligible candidate.

The Curmudgeon completely disagrees with the Professor’s premise and with his conclusion. Rather, he maintains that, given the emphatically democratic nature of the specific law that should rule, there is no true dilemma, and Lula should be ineligible.

The “Ficha Limpa” (or “Clean Police Record”) statute was enacted in 2010. It declares ineligible for public office any person convicted of corruption if an appellate court has affirmed that conviction, even if further appeals are pending.

Importantly, the Ficha Limpa statute is the direct result of a rarely used but quintessentially democratic phenomenon — the “popular initiative”. Brazil’s 1988 Constitution provides that Congress must consider any legislative proposal supported by a petition signed by at least one percent of the national electorate.

The Ficha Limpa petition submitted to Congress contained more than 1.6 million signatures, well over the requisite 1.36 million. Citizens throughout Brazil expressed themselves, democratically, in favor of a law designed to reduce the power of corrupt politicians.

Both the Chamber of Deputies and the Senate passed the “popular initiative” bill unanimously; we repeat: unanimously. Put another way, every single elected representative of the Brazilian people, chosen in federal elections by citizens, agreed to change Brazil’s electoral law.

The statute, as with all legislation passed by Congress, was subject to presidential veto. Brazil’s highly popular President, twice chosen by Brazilian voters in democratic elections and nearing the end of his second term of office, immediately signed the bill into law.

Under Brazil’s 1988 Constitution, even if the Legislative and Executive branches of government approve laws, the Judicial branch may still analyze them: this was repeatedly the case with the Ficha Limpa law.

In 2010, Brazil’s Supreme Court (STF) ruled the law did not apply to the 2010 elections. By reason of a 5-5 split, however, the STF did not reach a definitive decision as to the law’s constitutionality in future elections. In 2012, in a later proceeding, the full eleven-member STF, by a 7-4 vote, declared the Ficha Limpa law constitutional.

The Brazilian “demos” (Greek for citizens) have spoken through their petition, and through their legislative, executive and judicial representatives—they, the people, want the Ficha Limpa law to rule.

As “democracy” is the “rule of the citizens”, there is simply no conflict between democracy and the rule of law, insofar as the Ficha Limpa law is concerned — they are identical.

Hence, there is no dilemma and Lula is ineligible under the statute he signed into law.