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Clean Record Law should not apply to Elections 2010

By majority, the Plenum of the Brazilian Federal Supreme Court (STF) decided that the Supplementary Law (LC) 135/2010, the so-called Clean Record Law should not be applied to elections held in 2010 because it disrespects Article 16 of the Federal Constitution, which rules the priority of electoral laws. With this decision, Justices are authorized to individually decide cases in which they are rapporteurs, applying Article 16 of the Constitution.

The decision came in the trial of Extraordinary Appeal (RE) 633.703, which discussed the constitutionality of Complementary Law 135/2010 and its application in the 2010 elections. By six votes to five, the justices gave granting to the appeal of Leonidio Bouças Correa, a candidate for state representative in Minas Gerais, which had its registration denied under this law.



Justice Gilmar Mendes voted for non-enforcement of the law to last year general elections because he believes that Article 16 of the Federal Constitution (FC) of 1988, which establishes that a law that alters the electoral process must wait one year prior to become effective, is a stony clause, which means it can not be changed, even by a supplementary law or constitutional amendment.

Following the rapporteur, Justice Luiz Fux cautioned that "no matter how good the law, it can not override the Constitution”. He voted in the non applicability of Complementary Law 135/2010 to the 2010 elections, based on the principle of precedence of electoral legislation.

Justice Dias Toffoli followed the vote the rapporteur for not applying the Clean Record Law to the 2010 elections. He reiterated the same arguments previously presented at trial to other appeals on the same subject. For him, the election process began one year before the election.

In his opinion, Justice Marco Aurelio also maintained its previously stated view in the sense that the law does not apply to the 2010 elections. According to him, it is not to blame the Supreme Court for Congress only to have edited the law in election year, "forgetting" the provisions of Article 16 of the Federal Constitution, and voted for the dismissal of the appeal.

Fifth justice to speak out for the inapplicability of the 2010 elections, the oldest of the Court, Justice Celso de Mello, said in his vow that any law to introduce innovations in the electoral area, as did the Complementary Law 135/2010, interferes directly in the electoral process - in that it allows for the inclusion or exclusion of candidates in the race for elective mandates – to which the provisions of Article 16 of the Constitution applies. With this argument, among others, the justice followed the rapporteur, granting the appeal.

Last to vote, Chief Justice Cezar Peluso, reaffirmed its view expressed in earlier trials on the subject, contrary to the application of Complementary Law 135/2010 on last year's elections. Peluso highlighted the society’s common yearning for honesty and ethical standards, "which the Supreme Court should participate”. For the president, "only bad faith or less than noble purposes may charge justices or the decision of the Supreme Court that they are not in favor of the moralization of political customs”.

He noted, however, that the ethical progress of public life has to be done in a democratic state of law, with strict observance of the Constitution. "A constitutional court which, to meet the legitimate aspirations of the people, do it in defiance of the Constitution, is a court in which people can not trust”, he said. The justice applied to the case the above mentioned article 16 and the principle of non-retroactivity "of a rule that implies a severe penalty, which is exclusion from public life”. As for Peluso, this measure was not taken "even in dictatorships”.



Opening the divergence, Justice Carmen Lúcia voted for the application of Complementary Law 135/10 to the 2010 elections, denying, therefore, grant to the extraordinary appeal 633.703 brought by Leonídio Bouças, who had refused to register his candidacy for deputy for the State of Minas Gerais, based on the LC 135. She said that, unlike the manifestation of rapporteur, Gilmar Mendes, she does not understand that Law 135/2010 had created inequality among the candidates, because they all went to the convention in June last year, already knowing the rules established in the law.

As for her vote cast in the Injunctive Relief in ADI 4307, she recalled that in that case, the application of Constitutional Amendment 58/2009 retroactively to the 2008 election, she voted against it because it was a case different from the LC 135, which was edited before the conventions and the registration of candidates.

Justice Ricardo Lewandowski, who also holds the position of president of the Electoral Superior Court (TSE), kept within the terms of dismissing the Extraordinary Apperal, i.e., considering that the Clean Record Law should apply to the 2010 elections. He said the rule aims to protect the administrative integrity and seeks the legitimacy of elections, and created new causes of ineligibility by objective criteria. He also stressed that the law was issued before the registration of candidates, "the critical moment when everything can be changed", so he understood that there was no change to the electoral process, lacking the disruption of equality among candidates. Therefore, Lewandowski found that the legal discipline put all candidates and parties in the same conditions.

In her vote, Justice Ellen Gracie kept her understanding to the effect that the rule did not offend Article 16 of the Constitution. For her, ineligibility is neither act nor the fact in the electoral process, even in its broadest sense. Thus, the system of ineligibility - theme of Clean Record Law - would be exempt from the prohibition contained in Article 16 of the Constitution.

Justices Joaquim Barbosa and Ayres Britto dismiessed the appeal and voted for the immediate implementation of the Clean Record Law. The first one said that since World War II, many Supreme Courts have options for change and that, in the comparison between the paragraph 9 of Article 14 of the Federal Constitution, which includes problems in candidates’ early life between the assumptions of ineligibility, and Article 16 of the Constitution, which establishes the principle of precedence, he chooses the first option.

In a similar vein, Ayres Britto reasoned that Complementary Law 135/2010 is constitutional and follows the prediction of paragraph 9 of article 14 of the Constitution. He said it is part of individual rights and guarantees of citizens to have clean representatives. "Who has not a clean past life can not have the gall to ask for registration of his candidacy”, he said.


General Repercussion

The Supreme Court acknowledged, unanimously, the overall impact of the issue and allowed justices to implement, individually, the understanding adopted in the trial to other similar cases, under Article 543 of the Code of Civil Procedure.


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