The electoral process is traditionally considered as an example to be followed, due to its high effectiveness when confronted with other forms of jurisdictional actions. This happens because, in fact, it is fast and responds promptly to the claims for protection meant for it. To a large extent, this is because there is a timetable to be followed and, therefore, the system is clearly intended to make the social scope prevail – pacification by eliminating the controversies – over the legal system.
Modus in rebus: considering that there is no magic formula, haste causes a risk of injustice. Moreover, out of the electoral timetable the electoral court’s response – notwithstanding the dedication and commitment of magistrates and servants – is not always so agile. There were cases reported of proceedings aimed at the termination of mandate that could not be concluded before the end of such investiture. In addition, the specialty of the electoral system – maybe together with the relatively strict model of its proceedings (which is justifiable to reach the above mentioned agility) – makes of it an instrument perhaps less open to solutions than the general theory could provide.
This can be illustrated by the serious problem experienced at the time of the registration of candidates who intend to run for office, but are admittedly prevented from participating in the election proceedings. What happens is that, since it is permissible for them to apply for the registration and, more than that, to campaign until the decision that rejects the application becomes res judicata, a situation of great perplexity is created, which seriously discredits the electoral system.
This problem has at least two sides.
First, if the above mentioned possibility does not make the complementary law 135 (the “Ficha Limpa” law or the “Clean Record” law) meaningless, it is a reason for its discredit.
In some previous articles – one of which was published in the newspaper “Folha de São Paulo”, issue of March 30th 2011 – we had already warned of the fact that although it was understandable that the society wanted the moralization of politics and that the provisions of the above mentioned law – though with exceptions – could contribute to this, the vote is – or should be – the most important form of expression of society’s will, even more than the will expressed by the legislative power when a law is enacted, and certainly more than that expressed in judicial decisions. Thus, it should not be necessary for a law to tell a citizen that he or she cannot vote for this or that candidate because if society wishes moralization, then people are ready to guarantee their will by voting, not with the application of a law.
Seven years later, the paradox remains, and in the political context that projects the dispute for the position of President of the Republic, it becomes even more evident: candidates prevented by the aforementioned law have significant popular support, which is demonstrated in reliable surveys. So, the question is inevitable: which should prevail, people’s will expressed in the law or in the polls?
However, on the premise that there is a law in force in the country, there is a second facet of the problem, as already said: it is the apparent inability of the electoral system to prevent, in a prompt and efficient way, a candidate who is considered to be ineligible for a certain position from applying for an application record; and, until there is a final decision from justice, he or she will have enough time to participate in the campaign.
Besides undermining the effectiveness of that law, the situation is also harmful because it confuses the voters. The confirmation of the impossibility of the registration may occur practically on the eve of the action and the substitution – limitedly authorized by art. 13 of law 9.504 / 97 – tends to mislead the demonstration of the popular will. In fact, in the past there were even those who questioned the constitutionality of the rule that allowed for substitution considering that for this there was no time limit fixed by law. And even if it is somewhat different, advertising campaigns like the ones that urge that voters “meet their candidate” will lose meaning in the face of such possibility.
In the “ordinary” civil procedure, in order to overcome the so-called “certainty crisis” it is used the declaratory relief, which, even before being of the concern of the doctrine and even of the legislator with the preventive relief, its role had somehow been fulfilled, precisely because it extirpated relevant objective questions about the existence or inexistence of legal relations. However, the use of this technique in the electoral process – at least with the necessary generality or unusualness – does not seem to succeed. This is paradoxical in a context which, precisely intended to provide security, admits the institute of the mere consultation – that is, a case that is disconnected from a concrete case and is built in theory.
An important warning: the problem herein does not only occur in cases of candidates for the Presidency of the Republic, although the importance of the position really gives the issue undeniably great repercussion. However, this is a fundamental concept: whatever the position – notably for the heads of the executive system – it does not seem possible for the system, after all, to support someone who knowingly will not be able to be elected – and, will not even get the application record to run for office.
The proposition is: it is necessary that, preserving the rules of original jurisdiction and of standing to file an action (= standing to sue), in the case of a relevant question raised by the public behavior of an ineligible person who introduces himself or herself in advance as a candidate, there should be the adequate initiative, as well as compatible and equally anticipated jurisdictional response. It would be necessary, in short, to overcome the dogma that the control of a particular person’s eligibility for a specific position could only be done during the registration proceedings.
As an alternative, since it is not possible to advance the discussion prior to the registration proceedings, it would be necessary to, at least, give the rejection decision – unless there are really exceptional cases, which should be analyzed on a case-by-case basis – immediate enforcement. Any similarity to the discussion about someone’s detention before the conviction decision becomes res judicata shall not be a simple coincidence. However, in the electoral case, there is no express constitutional provision that is in force for that other issue – and that establishes a condition between the enforcement of the decision and its becoming res judicata.
Do these options offer any risks? Certainly they do. However, the question is: would such risks be greater than the losses that are actually caused to the system by tolerating the gestation of applications admittedly impossible?