Brazil's Silent Revolution

People Making Laws: Brazil’s Silent Revolution

 

I

Introduction

 

In 2002, a great number of organisations of the Brazilian civil society decided to create a network dedicated to improve the quality of elections. This was the very origin of the Brazilian Movement to Combat Electoral Corruption (MCCE) that unites lawyers, judges, prosecutors, journalists, priests, bishops, economists, social leaders and a large range of others professional as well as cultural backgrounds. 

Within a decade, said social mobilization network grew strong and affected remarkable changes in Brazil’s political sphere. 

With the support of its 350 local committees spreading across the country, the MCCE is currently launching a new campaign aiming to end the present electoral system which is considered to be expensive, elitist, and unfair as it suffers from a lack of transparency.

The political environment needed to create this social movement was born after the mobilization and conquest of the MCCE’s first popular initiative resulting in the Law 9.840, edited in September 29, 1999.

The Brazilian Constitution allows for the people to collect signatures in support of drafted bills desired by the grass roots movement which, in turn, can be presented directly to Parliament without any support of MPs. Said petition does require one per cent of the total number of signatures within the national electorate. Currently, some one hundred and forty million citizens possess the right to vote. Thus, should you be able to gather the support of one million and four hundred thousand signatures for your legal initiative, you are able to push the Parliament to respond to popular demand by reviewing the rules. 

This mechanism is an important non-violent way to change the political reality in accordance with the rule of law.  

 

II

A Law against Vote-Buying

 

In February 1997, the Brazilian Commission for Justice and Peace (CBJP), a body affiliated with the National Conference of Bishops of Brazil (CNBB), launched the project "Fighting Electoral Corruption". It was the result of discussions launched in the foregoing year, when the representative body of bishops has developed its Brotherhood Campaign carrying the slogans "Justice and Peace embraced" and "Brotherhood and Politics."

In April 1997 the project was submitted as a resolution to the General Assembly of the CNBB, where it was debated and approved, facilitating a pool of activities that included the mobilization of the Brazilian society around a theme that would draw the attention of its proponents: vote buying.

The methodology adopted for the development of the project involved conducting research and popular consultations with the aim to identify the mechanisms and institutional mobilizations that should be activated for a frontal attack on the problem at hand.

The initiative contemplated the need to build a process of political mobilization that made possible to present a bill of popular initiative. This would be made possible by the engagement of a large number of Brazilians - at that time little more than a million - which would require a broad debate with manifold sectors of society.

Bills of popular initiative are authorized by Art. 14, III, of the Constitution of the Federative Republic of Brazil. The art. 13 of Law No. 9709 of November 18, 1998, which regulates the exercise of direct democracy in Brazil, states that "The popular initiative is the submission of the bill to the House of Representatives, signed by at least one per cent of the national electorate, distributed amongst at least five states, with no less than three tenths of one per cent of the voters of each state."

The text of the bill of popular initiative was approved by civil society in April 1996. Its development was made possible by a group of jurists appointed by CBJP.

From that moment onwards the creation of a network of social organizations interested in the success of the initiative began. 

By the end of 1999 the Brazilian Federal Parliament finally approved the first law born directly from the wishes of the people. 

The text of the new law defined two new kinds of illegal acts:

  1. Vote buying, considered as the act of give, offer, promise or transfer to voters goods or advantages in exchange for their votes;
  2. Electoral abuse of administrative resources, such as the deviation of the use of public  vehicles, buildings, computers and including civil servants to benefit electoral campaigns. 

 

Amongst the cases of successful implementation of the law, some highlights can be accentuated:

 

I - In the State of Espírito Santo, the president of the Legislative Assembly (Provincial Parliament) lost his mandate after abusing public funds to pave streets in the city centre, promoting his own image with these works instead of debating and creating laws, the local parliament could carry out.  

II - In Sousa, one of the poorest cities in the state of Paraíba, the mayor offered civil servants tombs of the cemetery as payment for “electoral services”. His mandate was revoked due to this illegal act;

III - The Governor of Roraima was the first of its degree of being demoted by a court order after being convicted for giving goods to voters in exchange of votes. He is also the highest office holder to suffer the loss of function after the application of the anti-vote buying law;

IV - A small town in Northern Brazil was the first to demand that the Supreme Electoral Tribunal acknowledged the simple offering of benefits to a single voter as sufficient to result in a loss of public mandate. During the campaign the mayor had donated a water tank to a voter. After the election victory, even though already installed, the mayor ordered the removal of the tank. The case was discovered because the voter, not satisfied with the resumption of the donated equipment decided to issue a complaint with the Electoral Prosecutor, trying to get back the mentioned good; 

V - The Brazilian electoral law allows candidates to hire people to work in their campaign committees. In one city of the state of Goiás, the mayor had his election nullified. The tribunal took the fact into account according to which he had recruited at least 5% per cent of the total local electorate;

VI - In another place, a large merchant donated the sum of 5000 reais (two thousand and five hundred dollars, approximately) for each of his "canvassers". They were responsible for the transfer of blocks of votes for the candidate contractor.

This were some examples of the diversity of circumstances in which the occurrence of vote buying took place in Brazil's recent history.

It is necessary to admit that the problem of corruption of the will of voters is an unsolved problem, however, now it can be argued in court in order to see the sanctions applied that are contained in Law No. 9840 originating from popular initiative.

Between 2000 and 2008, almost 700 constituents (governors, mayors, senators, deputies and mayors) lost their mandates due to judicial decisions based on the law against vote buying.

 

III

The conquest of the Clean Record Law 

 

On December 10, 2007, the Movement to Combat Electoral Corruption (MCCE) decided to unleash the “Clean Record” Campaign in order to meet the growing social demand for improved criteria for electoral candidacies.

The petition began in May 2008, after the approval of the campaign by unanimous vote at the General Meeting of the National Conference of Bishops of Brazil, one of the member institutions of the Movement.

Since then all remaining 50 organizations were invited to reflect on the topic and spread it among their bases to achieve the mobilization network needed to generate "social energy" that would gather 1.3 million signatures necessary for the presentation of a bill of popular initiative.

The “Clean Record” bill was based on the following premise: we do not recommend the candidacy of a person against who stand felony convictions issued by certain bodies of the judiciary. Several other measures were inserted in popular text.

It is not difficult to understand why the rapid accession of hundreds of social organizations and thousands of volunteers who, until September 2009, managed to gather the number required by the Constitution for the presentation of the new initiative popular bill.

Even after the delivery of the project to the president of the Chamber of Deputies, Michel Temer, on September 29, subscriptions continued to arrive, resulting in more than 1.6 million signatures.

After having collected signatures on a physical medium (paper) - an atavistic requirement of Law n. 9.709/1998 - the MCCE began a - unprecedented in the country - mobilization by social networks on the internet.

Soon manifold communities on social networks and profiles on Twitter dedicated to the cause were founded. One of the Facebook groups (2010: All for Clean Record) soon exceeded 50 thousand members. In just two days in April 2010 the hashtag #FichaLimpa was mentioned in 312,000 messages posted on Twitter.

The Movement to Combat Electoral Corruption actively took part in all discourses of Parliament, officially being heard in two public hearings. 

The project was then taken to the plenary of the House which had started its debate on April, 7th. 

According to the electronic site Congresso em Foco:

"Of the 513 members, 390 attended the session which has approved the text-based Project Clean Record, approved last night by 388 votes.” Congressman Marcelo Melo (PMDB-GO) was the only one to vote against. Soon after, he apologized saying, tired, that it was a mistake to oppose the bill. 

Ultimately, Congress began to discuss the text in the Senate. After a standoff, the project was included in the agenda for a vote and approved on May 19th. 

Sanctioned on June 4th by President Luiz Inácio Lula da Silva, the bill of popular initiative known as Clean Records became the Complementary Law n. 135, published in the Official Journal on June 7, 2010.

Soon the first questions on relevant aspects of the new legislation would arise.

The Superior Electoral Court responded on 10 and 17 June to two important consultations that gave the Clean Record Law the effectiveness that was desired by the Brazilian people. The first recognized the applicability of its provisions already for the upcoming election. The second, defined that the tribunals could consider facts happened before the approval of the new law to deny candidacy to someone previously convicted by a criminal court.

Despite having called the attention of the whole society to negate the application of convicted collegiate courts, has intrinsically more changes, becoming also ineligible: 

- Who resigned to escape the penalties of political nature;

- Who was condemned for a criminal court, even when is still possible to appeal;

- Judges and prosecutors compulsorily retired;

- Those convicted of unlawful capture of suffrage (vote buying), ducts sealed to the public, costs and expenses in illicit campaign or for abuse of political and economic power;

 

As it turns out, these are all measures that vivify the Constitution, making the promises contained in alluding to the protection of administrative morality and probity more palpable. The history of the candidates – proclaimed in § 9 of art. 14 of the Constitution - is not irrelevant to the Electoral Law.

The objective data that mark the lives of wannabe agents had their constitutional significance recognized and reaffirmed by the Clean Record Law.

 

IV

Political Reform: the last movement

 

The Brazilian electoral system is exhausted.

Successive scandals have affected recent governments, regardless of their ideological orientation.

Therefore a thorough reform of the Brazilian political institutions has gained increasing importance, starting with the way the elections are held.

Parliament, on the other hand, despite demands from society, was unable to procure change, refusing to adopt inconvenient measures. One gets the impression that MPs are not encouraged to change the rules that made their presence in elective mandates possible.

For these reasons, the Movement to Combat Electoral Corruption has recently decided to launch a new initiative popular bill, this time presenting measures for the improvement of the electoral system.

We defined four pillars for the new popular design:

a) Funding democratic campaigns;

b) Institutional design of the system of proportional composition of Parliament;

c) Using the mechanisms of direct democracy;

d) Suppression of corruption in political parties.

In late 2012, the president of the Supreme Electoral Tribunal publicly attacked the funding model based on campaign donations from large private companies:

"In any case, this is an issue that needs to be properly understood. For example, a legal entity is not a citizen and does not vote. This is a fact that really needs to be clear. An enterprise should not make campaign donations, because it's not a citizen."

Recently, the Brazilian Bar Association proposed to the Supreme Court to declare the unconstitutionality of campaign donations by private companies. The final decision on this appeal is expected this year.

In the following, I present some of the first findings of the Commission of Rapporteurs that is working on the changes that should be imposed on the electoral system.

a) Origin of values - We must prohibit funding for companies and individuals to political parties and candidates. The funding model for public majoritarian elections is composed of funds from the Union budget allocations and administrative fines applied for the Electoral Justice. These amounts will be prorated among the various political parties according to criteria defined by law. Companies and people who perform such donations will receive tax incentives.

b) Distribution of the funds - In proportional elections, all candidates of the same party to the same position in the same constituency will only receive the money from the Democratic Fund, which will be distributed equally between them.

In the majoritarian elections, parties will receive the funds from the Democratic Fund based on the representation of college party in Congress, ensured equal division of 30% of the total amount.

c) Transparency - Funds of the campaign will be handled exclusively by political parties in a bank account opened by the Electoral Court in a governmental bank.

Payments for acquisition of assets, payment of rents or hiring services will be conducted solely by debit or credit card.

The other themes are equally relevant.

We have to enhance the transparency and the accountability in the Brazilian government. Here the quality of the governments depends on the quality of the elections. When fraud and vote buying affect the electoral process negatively, a citizen will not believe in an independent government that is modern, fair and honest. 

These are the reasons why the civil society in Brazil is mobilized. 

Transparency, democracy and peace are fundamental rights of the Human Kind. This is the time to observe it. This is the time to make it real in every country in the world.

Márlon Reis.
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