JURIST Guest Columnist Thiago Santos Limas discusses the recent controversy surrounding an elected official with a criminal conviction in Brazil...
Recently, Brazil's Supreme Federal Court condemned representative Natan Donadon for crimes against Public Administration. Sentence: thirteen years, four months and ten days.
The episode was as historic for Brazilians as landing on the moon was for Americans. After all, Donadon was the first congressman judged and convicted under the 1988 Brazilian Constitution [PDF]. It seemed like a dream. And, yes, it was just a dream, for we have woken up and realized that Donadon will not be eliminated from office as swiftly and decisively as he was convicted.
Following the sentence, a question presented itself to representatives and judges involved in the case: were the Supreme Justices' signatures of condemnation enough to remove Donadon from congress? The population hoped so and Supreme Justices did too, but the House of Representatives felt otherwise.
Title IV, Section IV, Article 55 of the constitution permits this situation. In the case of final condemnation of a lawmaker, his respective House will ultimately determine the political destiny of the lawmaker. So, even riding around in a police car, possibly wearing colorful prisoner clothes, it is possible for Donadon to continue presenting himself as a congressman.
As feared, this situation came to pass. On August 28, 2013, tenure was preserved by acquaintances of his Excellency Donadon and the Federal Republic of Brazil now shoulders the embarrassment of having one of its sitting federal congressman housed in a jail.
In Brazilian politics, seemingly nothing is impossible. Actually, this decision by the National Congress is par for the course. Impunity enjoyed by government criminals in the country is the main dish of our political menu. The attitude which which congressmen carried out this action speaks volumes. On top of disregarding public opinion, they wanted to make a mockery of the justice system with one single legislative action.
Preserving Donadon's tenure is direct vengeance for the judiciary's frequent disturbance of the executive and legislature's recent political objectives. By preserving the representative title for a prisoner after he was afforded correct due process of law in the Constitutional Court and judged under an unsystematic interpretation of the 55th article, lawmakers disregarded legal principles and other constitutional dispositions. In doing so, they only weakened the judiciary's legitimacy with an eye on mocking that political branch of the republic and maintaining the present state of disorder in Brazil.
Interestingly, Article 55 affirms that a representative or senator will lose his tenure in the case of a final criminal condemnation, yet it goes on to state that this action still requires a secret vote of approval by the appropriate House legislators. Here, these legislators voted against the will of the nation. They held the 55th item of our Constitution in their breast, diminishing, for example, another constitutional provision Article II which orders harmony among the governmental branches.
As Carlos Maximiliano, the former Brazilian Supreme Court minister who taught once stated, "[l]aw must be interpreted intelligently, not leading to absurdity, prescribing inconveniences, achieving inconsistent or impossible conclusions".
The August protests through Brazil were necessary for citizens, as many perceive their prerogative lives as not matching their dreams and desires. Traditionally, they have deferred addressing their government's licentiousness to a later date, but this is changing. Brazilians will continue to be alert for misdeeds like this vote of the legislature on Donadon's tenure.
Maurice Hauriou was right: we really do have one last Bastille to demolishthe belief in the sovereignty of Parliament.
Thiago Santos Lima is a lawyer in Brazil.
Suggested citation: Thiago Santos Lima, His Excellency: How a Jailed Felon Remains in Brazil's Legislature, JURIST - Hotline, Jan. 7, 2014, http://jurist.org/hotline/2014/01/thiago-santos-lima-his-excellency.php.
This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com