Ficha Limpa

The first major challenge to the Clean Record Act for elections took place in the Supreme Electoral Tribunal. It concerned the 2010 general elections, presided by Justice Ricardo Lewandowski. By six votes to one, Justice Marco Aurélio's vote prevailed, holding that the law would apply to that year's election.[7] Lewandowski, as president of the TSE, visited many Regional Electoral Courts, seeking the enforcement of the law.

Visiting TRE Ceará, on 29 July 2010, the then-president of the Supreme Electoral Tribunal said:

The TSE guides all TREs to adopt the Clean Record earlier this year. This is the orientation of the TSE, as we move away from the article 16 of the Constitution which deals with the principle of annuality, which is one device that law says that all entailing changes in the electoral process only comes into force a year later. But we said that this does not apply because there was a change in the electoral process|author=Enrique Ricardo Lewandowski|source=[8]

This guidance told Regional Electoral Courts to apply the Clean Slate Law to the current elections.[8] President of the Supreme Electoral Tribunal and Justice of the Supreme Court Ricardo Lewandowski in his 36-page opinion contended that the Clean Record Act already applied to the 2010 elections and should apply to candidates who were convicted or who resigned to escape impeachment, even before the new rules had come into force. For Lewandowski, the Law of Clean Record put a "filter" on Brazilian politics.[9]

Interior of the building of the Supreme Federal Court building

After the electoral court decision that upheld the bill's validity for the 2010 elections, on account of criticisms made by members of the Supreme Court against the application of the law, such as justices Gilmar Mendes and Marco Aurélio de Melo, several candidates barred by the bill filed legal motions with the federal court, for the right to run for office on the grounds that the law was unconstitutional or not yet effective, since another law bars changes to the electoral process from taking effect on an election year. Those in favour of the bill taking effect that year claimed, among other things, that the law would not change the election process, but only the rules for registration of candidates.

On September 22, less than a month before the election, the justices of the Federal Supreme Court (STF) began the trial of the case of Joaquim Roriz, a former senator who resigned in 2007 to escape a lawsuit for breach of parliamentary decorum. So Roriz, trying to fight the government of the Federal District for the fourth time, had his record challenged by lower courts. The outcome of this trial was important because it would define all other cases in that election. After Justice Carlos Ayres Britto, rapporteur for the case, voted in favour of the law being applied to Roriz, President Cezar Peluso interrupted the proceedings to question the constitutionality of the law. This surprised the other magistrates, and after a standoff, justice Dias Toffoli asked for in-chambers review. The trial resumed the next day, the 23rd, and the vote was tied, with five justices voting in favour and five against. Carlos Ayres Britto, Cármen Lúcia, Joaquim Barbosa, Ricardo Lewandowski and Ellen Gracie voted for constitutionality and Gilmar Mendes, Dias Toffoli, Marco Aurélio Mello, Celso de Mello and Cezar Peluso voted against.

The court then had ten justices, since justice Eros Grau had retired voluntarily on August 2, 2010 and the position had not yet been filled. Since the full court had an even number of justices and the vote tied at 5-5, intense arguments broke out. Cezar Peluso, the chief justice, chose to suspend judgement without announcing the result. According to O Globo the "expectation is that the justices will return to the issue next Wednesday, four days before the election." The report also noted that possible results, according to the votes cast:

• Ricardo Lewandowski, Carmen Lúcia, Joaquim Barbosa, Ellen Gracie and Carlos Ayres Britto (rapporteur of the case) proposed upholding the TSE decision, i.e. that the Clean Record Act was already in effect;
• Antonio Dias Toffoli, Gilmar Mendes and Marcus Aurelius suggested that the court wait for the appointment of a new justice, and the court decides the vote using the newly named judge casting a vote, or a tie-breaker given by the president. President Cezar Peluso refused to have his vote counted twice, declaring he was not a "despot".

The Supreme Federal Court ruled in 2010 that the Clean Record law applies to that year's elections and applied to resigning the political office to escape impeachment process, even in situations that occurred before the law.[10][11][12] The trial on the case of Congressman Jader Barbalho, again ended in a draw.[10] Ricardo Lewandowski, Carmen Lúcia, Ellen Gracie, Joaquim Barbosa and Ayres Britto again manifest by the immediate application of the law. Were against Marcus Aurelius, Dias Toffoli, Gilmar Mendes, Celso de Mello and Cezar Peluso.[11] As a tiebreaker, by seven votes to three, it was decided that they would use Article 205 of the by-laws of the Supreme Court which says that "having all justices voted, unless prevented or licensed by the remaining period exceeding three months, the impugned act shall prevail. "well worth the decision of the Superior Electoral Court applicability in the elections of 2010.[10][11][12]

On March 23, 2011, the validity of the election law was overturned in 2010 6-5 by the Supreme Court. The vote of Justice Luiz Fux - who had succeeded Eros Grau - ruled the law invalid under the constitution.[13] The decision not to apply the law in that election directly benefited several candidates whose eligibility had been barred because of legal actions, such as Jader Barbalho, Joaquim Roriz and João Capiberibe.[14] The Clean Record Act took effect only after the 2012 municipal elections,[15][16] and was to be applied only if actually passed another vote on its constitutionality.[17]

Even though the law was found to have been applied on a constitutional basis, protests broke out and some politicians such as Senators Marinor Brito,[18] Heloisa Helena[19] and Pedro Simon, who remembered the popular mobilization and society entities for the civil construction of democracy in Brazil,[20] and that the Law of Clean Record was a popular initiative that had over 1.6 million signatures.[21]

I am under the impression that the Supreme Law of the land killed Clean Record.

— Pedro Simon

The Order of Attorneys of Brazil (OAB) filed a declaratory action of constitutionality of the law, expected to be tried in the second half of 2011. [28] The trial was suspended from the beginning of November to the 28th due to a request from justice Joaquim Barbosa for in-chambers review. Besides its scope -- when it would take effect -- the Supreme Court was debating the constitutionality of the provision itself. This discussion was initiated by a lawsuit filed by OAB that tried to resolve any doubt about the constitutionality of the law.

After that two more actions were entered. The three actions were:

• ADC 30, [30] proposed by the Federal Council of the Bar Association of Brazil (CFOAB);
• ADC 29, [31] proposed by the Popular Socialist Party;
• ADI 4578, [32] proposed by the National Confederation of Liberal Professions (CNPL).

They were tried jointly. The plenary session on February 15, 2012 was closed, suspending the trial, scheduled to resume on February 16, 2012 (Thursday). They expressed the parties as follows:[22]

• the Solicitor-General of the Union, Luís Inácio Adams, the attorney general Roberto Gurgel, the national president of the Bar Association of Brazil, Ophir Cavalcante, and the Popular Socialist Party, argued the constitutionality of the law and its applicability to the events that occurred before 2012, when candidates registered for the upcoming municipal elections;
• the National Confederation of Liberal Professions protested against sub-paragraph "m", section I, article 1, the LC 64/90, with the wording given by LC 135/2010, which made ineligible "those who are excluded of the profession, by the penalty decision of the competent professional body, due to ethical and professional infraction for a period of eight (8) years, unless the act there been annulled or suspended by the judiciary."

On February 16, 2012, the Supreme Court ruled that the law did not violate the Brazilian Constitution and was in force for the 2012 elections and for elections to come.[3]

STF justices voted 7-4 in favour of the law. The affirmative votes were based on the "principle of morality," in the ninth paragraph of Article 14 of the Constitution of Brazil: "conditions of ineligibility to protect the administrative probity, morality for the exercise of mandate, considered the candidate's past life." The four dissenting opinions argued on the basis of the principle of presumption of innocence, in section 57 of Article 5 (an entrenched clause) of the Constitution of Brazil, which says that no one shall be considered guilty until a penal sentence was final and unappealable. The Clean Record Act says that anyone convicted of crime was ineligible for a collective body, even though recourse was still available, would become ineligible. Justices opposed to the constitutionality of the law deemed that section of the legislation unconstitutional. However, justice Ricardo Lewandowski said the presumption of innocence that applies to criminal cases, is not being wide enough to reach the text of the Clean Record.[3]

Activists in favor of the law