Whoever judges lawmakers can't be a lawmaker
Abestadão argues that the ethics councils of the Chamber of Deputies and the Senate should be made up of citizens from civil society, with fixed terms and no party affiliation. As long as colleague judges colleague, ethics in Congress will keep getting shelved.
Adapted translation of the Portuguese original. Read the original.
CartoonImagine a court in which the judge, the prosecutor and the defendant lunch together, share the same office, trade votes on bills and depend on one another to pass earmarks next year. Nobody would accept that court to judge a neighbor. It is exactly what Brazil accepts to judge its deputies and senators.
The ethics councils of the Chamber of Deputies and the Senate are made up of lawmakers, appointed by the parties. Colleague judges colleague. Whoever wears the robe today may be in the dock tomorrow, and everyone there knows it. The result is what you expect from any corporation that judges itself.
What the numbers show
From its creation in 2001 through 2022, the Chamber's Ethics Council received 212 complaints and shelved 152 of them, more than 7 out of 10. It asked for removal from office 24 times, and the floor confirmed only 8. In more than two decades, 8 removals in a House of 513 deputies.
In the Senate, the situation is worse. The Ethics Council simply stopped working in September 2019 and was only elected again in March 2023. During an entire legislative term, it met once, to choose a chair and vice chair. There was no trial because there was no council. In 2007, when the council asked for the removal of Renan Calheiros, the floor acquitted him in a secret vote.
It is not a shortage of complaints. It is a shortage of anyone with an interest in judging them.
The Judiciary already accepted it. Congress has not
The idea that a branch of government cannot be overseen by outsiders does not survive the Constitution itself. Since 2004, the National Council of Justice (CNJ) has had among its 15 members two citizens from outside the judiciary, one appointed by the Chamber and the other by the Senate. The judges complained, but outside oversight has worked for two decades, and no serious person defends ending it.
There are examples abroad too. In the United Kingdom, the committee that judges the conduct of members of the House of Commons has lay members, citizens without a seat, who have voted since 2019. Investigations are left to an independent commissioner, who is not a lawmaker.
If Brazil's Judiciary and the oldest Parliament in the world accept being judged by people from outside the house, the National Congress has no argument for continuing to judge itself alone.
What Abestadão proposes
The ethics councils of the Chamber and the Senate should be made up of citizens from civil society, not lawmakers. The composition can follow simple rules:
- A fixed, non-renewable term, not coinciding with the legislative term, so that no council member depends on the deputy being judged.
- No party affiliation in the previous five years and a cooling-off period afterward: a council member cannot run for office or hold a position of trust in Congress.
- Plural nomination and a lottery: universities, the Brazilian Bar Association (OAB), professional associations, social movements and the Public Prosecutor's Office nominate names, and the final panel is drawn by public lottery among those nominated.
- Power to decide: the council investigates, hears the defense and applies the penalties of reprimand and suspension. When it recommends removal from office, the floor will have a deadline to vote and can overturn the decision only by a qualified majority.
Because the Constitution hands the House itself the decision on loss of mandate, the change requires a constitutional amendment. It is work, but not impossible: in 2013, Congress approved the end of the secret ballot in removal votes, after years of pressure from society.
The usual objection
They will say this violates the sovereignty of the vote and the separation of powers. It does not. Voters chose the deputy to make laws, oversee the government and represent their region. They did not choose him to be a judge in his own case. Decorum is not an internal matter of a club: it is the trust the country places in whoever speaks in its name.
An honest lawmaker has nothing to fear from a council of citizens. The ones who fear it are exactly those who today count on the shelving.
Congress keeps asking society to trust it. Let it start by handing society the key to the Ethics Council.
Abestadão editorial. The opinions in this text are the newspaper's; the data cited are in the sources below.
Sources
- Conselho de Ética da Câmara arquiva 70% das ações contra deputados
Since October 2001, the Chamber's Ethics Council has received 212 complaints and shelved 152; it asked for removal from office 24 times, and the floor confirmed 8.
Data through July 2022.
- Senado elege novo Conselho de Ética, inativo desde 2019
The Senate's Ethics Council went without working from September 2019 to March 2023; in the previous legislative term, it met once, only to elect a chair and vice chair.
- Constituição da República Federativa do Brasil, arts. 55 e 103-B
Loss of mandate for breach of decorum is decided by the Chamber or the Senate, by absolute majority (Art. 55, §2). The CNJ has two citizens appointed by Congress among its 15 members (Art. 103-B, XIII).
- Emenda Constitucional nº 76, de 2013
Ended the secret ballot in votes to remove lawmakers from office.
- Committee on Standards: lay members
The House of Commons' Standards Committee has lay members, from outside Parliament, with voting rights since 2019.
The House of Commons keeps the final word on sanctions.
