Palestra de Márlon Reis - Combating money politics and electoral corruption in light of Malaysia 13 th General Elections

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Palestra proferida pelo juiz eleitoral, representante do Movimento de Combate à Corrupção Eleitoral, Márlon Reis, durante Conferência das Eleições Gerais da Malásia, na capital Kuala Lumpur.

Palestra proferida pelo juiz eleitoral, representante do Movimento de Combate à Corrupção Eleitoral, Márlon Reis, durante Conferência das Eleições Gerais da Malásia, na capital Kuala Lumpur.

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  • 1. International Conference on Malaysias 13th General Elections Session 6 - Combating money politics and electoral corruption in light of Malaysia 13th General Elections Kuala Lumpur, Malaysia, March 5, 2013 People Making Laws: Brazil’s Silent Revolution _________________________________________________________________ Márlon Reis1  __________________________________________________________________ I IntroductionIn 2002, a great number of organisations of the Brazilian civil society decided tocreate a network dedicated to improve the quality of elections. This was the veryorigin of the Brazilian Movement to Combat Electoral Corruption (MCCE) thatunites lawyers, judges, prosecutors, journalists, priests, bishops, economists, socialleaders and a large range of others professional as well as cultural backgrounds. Within a decade, said social mobilization network grew strong and affectedremarkable changes in Brazil’s political sphere. With the support of its 350 local committees spreading across the country, theMCCE is currently launching a new campaign aiming to end the present electoral1 State Judge in Brazil, Executive Director of the Movement to Combat Electoral Corruption (MCCE),President of Brazilian Association of Electoral Judges and Prossecutors.
  • 2. system which is considered to be expensive, elitist, and unfair as it suffers from alack of transparency.The map below indicates the geographical distribution of these popularcommittees2:   The political environment needed to create this social movement was born after themobilization and conquest of the MCCE’s first popular initiative resulting in the Law9.840, edited in September 29, 1999.The Brazilian Constitution allows for the people to collect signatures in support ofdrafted bills desired by the grass roots movement which, in turn, can be presenteddirectly to Parliament without any support of MPs. Said petition does require oneper 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, shouldyou be able to gather the support of one million and four hundred thousand2 Map composed by professor Simeon Nichter (University of California in San Diego) with data provided bythe MCCE Executive Secretary.
  • 3. signatures for your legal initiative, you are able to push the Parliament to respond topopular demand by reviewing the rules. This mechanism is an important non-violent way to change the political reality inaccordance with the rule of law. II A Law against Vote-BuyingIn February 1997, the Brazilian Commission for Justice and Peace (CBJP), a bodyaffiliated with the National Conference of Bishops of Brazil (CNBB), launched theproject "Fighting Electoral Corruption". It was the result of discussions launched inthe foregoing year, when the representative body of bishops has developed itsBrotherhood 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 ofthe CNBB, where it was debated and approved, facilitating a pool of activities thatincluded the mobilization of the Brazilian society around a theme that would drawthe attention of its proponents: vote buying.The methodology adopted for the development of the project involved conductingresearch and popular consultations with the aim to identify the mechanisms andinstitutional mobilizations that should be activated for a frontal attack on theproblem at hand.The initiative contemplated the need to build a process of political mobilization thatmade possible to present a bill of popular initiative. This would be made possible bythe engagement of a large number of Brazilians - at that time little more than amillion - 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 theFederative 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 popularinitiative is the submission of the bill to the House of Representatives, signed by at
  • 4. 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 organizationsinterested in the success of the initiative began. By the end of 1999 the Brazilian Federal Parliament finally approved the first lawborn directly from the wishes of the people. The text of the new law defined two new kinds of illegal acts:a. Vote buying, considered as the act of give, offer, promise or transfer to voters goods or advantages in exchange for their votes;b. 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 beaccentuated: I - In the State of Espírito Santo, the president of the Legislative Assembly(Provincial Parliament) lost his mandate after abusing public funds to pave streetsin the city centre, promoting his own image with these works instead of debatingand creating laws, the local parliament could carry out. II - In Sousa, one of the poorest cities in the state of Paraíba, the mayor offered civilservants tombs of the cemetery as payment for “electoral services”. His mandatewas revoked due to this illegal act;III - The Governor of Roraima was the first of its degree of being demoted by acourt 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 applicationof the anti-vote buying law;
  • 5. IV - A small town in Northern Brazil was the first to demand that the SupremeElectoral Tribunal acknowledged the simple offering of benefits to a single voter assufficient to result in a loss of public mandate. During the campaign the mayor haddonated a water tank to a voter. After the election victory, even though alreadyinstalled, the mayor ordered the removal of the tank. The case was discoveredbecause the voter, not satisfied with the resumption of the donated equipmentdecided to issue a complaint with the Electoral Prosecutor, trying to get back thementioned good; V - The Brazilian electoral law allows candidates to hire people to work in theircampaign committees. In one city of the state of Goiás, the mayor had his electionnullified. The tribunal took the fact into account according to which he had recruitedat least 5% per cent of the total local electorate;VI - In another place, a large merchant donated the sum of 5000 reais (twothousand and five hundred dollars, approximately) for each of his "canvassers".They were responsible for the transfer of blocks of votes for the candidatecontractor.This were some examples of the diversity of circumstances in which the occurrenceof vote buying took place in Brazils recent history.It is necessary to admit that the problem of corruption of the will of voters is anunsolved problem, however, now it can be argued in court in order to see thesanctions applied that are contained in Law No. 9840 originating from popularinitiative.Between 2000 and 2008, almost 700 constituents (governors, mayors, senators,deputies and mayors) lost their mandates due to judicial decisions based on the lawagainst vote buying.The map below - composed by professor Simeon Nichter (University of California inSan Diego) with data provided by my own research - demonstrates the distributionof the mandates withdrawn due to illegal vote buying across the country.
  • 6. 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 growingsocial demand for improved criteria for electoral candidacies.The petition began in May 2008, after the approval of the campaign by unanimousvote at the General Meeting of the National Conference of Bishops of Brazil, one ofthe member institutions of the Movement.Since then all remaining 50 organizations were invited to reflect on the topic andspread it among their bases to achieve the mobilization network needed togenerate "social energy" that would gather 1.3 million signatures necessary for thepresentation of a bill of popular initiative.
  • 7. The “Clean Record” bill was based on the following premise: we do not recommendthe candidacy of a person against who stand felony convictions issued by certainbodies of the judiciary. Several other measures were inserted in popular text.It is not difficult to understand why the rapid accession of hundreds of socialorganizations and thousands of volunteers who, until September 2009, managed togather the number required by the Constitution for the presentation of the newinitiative 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 morethan 1.6 million signatures.After having collected signatures on a physical medium (paper) - an atavisticrequirement of Law n. 9.709/1998 - the MCCE began a - unprecedented in thecountry - mobilization by social networks on the internet.Soon manifold communities on social networks and profiles on Twitter dedicated tothe 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 ofParliament, officially being heard in two public hearings. The project was then taken to the plenary of the House which had started its debateon April, 7th. According to the electronic site Congresso em Foco:"Of the 513 members, 390 attended the session which has approved the text-basedProject Clean Record, approved last night by 388 votes.” Congressman MarceloMelo (PMDB-GO) was the only one to vote against. Soon after, he apologizedsaying, tired, that it was a mistake to oppose the bill. Ultimately, Congress began to discuss the text in the Senate. After a standoff, theproject was included in the agenda for a vote and approved on May 19th.
  • 8. Sanctioned on June 4th by President Luiz Inácio Lula da Silva, the bill of popularinitiative 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 importantconsultations that gave the Clean Record Law the effectiveness that was desiredby the Brazilian people. The first recognized the applicability of its provisionsalready for the upcoming election. The second, defined that the tribunals couldconsider facts happened before the approval of the new law to deny candidacy tosomeone previously convicted by a criminal court.Despite having called the attention of the whole society to negate the application ofconvicted collegiate courts, has intrinsically more changes, becoming alsoineligible: - 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 thepublic, costs and expenses in illicit campaign or for abuse of political and economicpower;As it turns out, these are all measures that vivify the Constitution, making thepromises contained in alluding to the protection of administrative morality andprobity more palpable. The history of the candidates – proclaimed in § 9 of art. 14of the Constitution - is not irrelevant to the Electoral Law.The objective data that mark the lives of wannabe agents had their constitutionalsignificance recognized and reaffirmed by the Clean Record Law. IV Political Reform: the last movement
  • 9. The Brazilian electoral system is exhausted.Successive scandals have affected recent governments, regardless of theirideological orientation.Therefore a thorough reform of the Brazilian political institutions has gainedincreasing importance, starting with the way the elections are held.Parliament, on the other hand, despite demands from society, was unable toprocure change, refusing to adopt inconvenient measures. One gets the impressionthat MPs are not encouraged to change the rules that made their presence inelective mandates possible.For these reasons, the Movement to Combat Electoral Corruption has recentlydecided to launch a new initiative popular bill, this time presenting measures for theimprovement 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 thefunding model based on campaign donations from large private companies:"In any case, this is an issue that needs to be properly understood. For example, alegal entity is not a citizen and does not vote. This is a fact that really needs to beclear. An enterprise should not make campaign donations, because its not acitizen."Recently, the Brazilian Bar Association proposed to the Supreme Court to declarethe unconstitutionality of campaign donations by private companies. The finaldecision on this appeal is expected this year.
  • 10. In the following, I present some of the first findings of the Commission ofRapporteurs that is working on the changes that should be imposed on the electoralsystem.a) Origin of values - We must prohibit funding for companies and individuals topolitical parties and candidates. The funding model for public majoritarian electionsis composed of funds from the Union budget allocations and administrative finesapplied for the Electoral Justice. These amounts will be prorated among the variouspolitical parties according to criteria defined by law. Companies and people whoperform such donations will receive tax incentives.b) Distribution of the funds - In proportional elections, all candidates of the sameparty to the same position in the same constituency will only receive the moneyfrom the Democratic Fund, which will be distributed equally between them.In the majoritarian elections, parties will receive the funds from the DemocraticFund based on the representation of college party in Congress, ensured equaldivision of 30% of the total amount.c) Transparency - Funds of the campaign will be handled exclusively by politicalparties 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 beconducted solely by debit or credit card.The other themes are equally relevant.We have to enhance the transparency and the accountability in the Braziliangovernment. Here the quality of the governments depends on the quality of theelections. When fraud and vote buying affect the electoral process negatively, acitizen will not believe in an independent government that is modern, fair andhonest. These are the reasons why the civil society in Brazil is mobilized. 
  • 11. 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 theworld.Lobbies in USLobbies is a characteristic of democracy. And it has to be treated with transparency.Lobby is not necessarily an act of corruption. Period of inelegibility What is the role of the policeA general promise - like the promise to adopt a public policyDifferent of a particularistic promiseThe people decide to make politics. But not partisan politics. We are trying todesign democracy.Criminal versus administrative Political violenceReason why the 700 mandates were revoked:The electronic vote changed the illegal acts from fraud to vote buying. One form ofvote buying is official. Hiring people