IMPEACHMENT IS PATRIOTIC III

Introduction III

While I writing this article, Thursday, December 17, 2015, around 3pm, the Brazilian Supreme Court is deciding what us the roll of the Federal Senate in the process of impeachment against Dilma Rousseff.   There is a big possibility that they decide that the Senate will have to open an impeachment trial right after the house approves the charges and suspend Rousseff for up to six months with Vice President Michel Temer taking over as Senators debate to remove her permanently or clear her, returning her to office.

The STF minister Fachin vote saying that "The house decides on the admissibility of impeachment, the Senate judges ... it must necessarily to begin a trial,", rejecting most of the complaints lodged against the impeachment case by the Communist Party of Brazil.

He is absolutely right! This was part of the rite of 1992 impeachment against Fernando Collor, and the one should repeat. If the rite was good from one, should be good for the other one. But I don’t think the other judges/ministers will follow his vote.

Part 3

The Brazilian Constitution was promulgated on 10.05.88 by a Constituent Assembly convoked specifically for this purpose. In the paragraph or article 85, the Brazilian Constitution states that crimes of responsibility committed by the President of the Republic “will be defined in special legislation”.

Since, according to the grammar of the Portuguese language, the verb “will be” above is in the future tense, it was understood that, once the Federal Constitution had been promulgated, the National Congress would meet with the objective of approving special legislation containing a definition of crimes of responsibility, as required by the provision in article 85, paragraph, of the Federal Constitution. However, this was not done.

On September 23, 1992, the Brazilian Supreme Court issued a surprising decision in a case designated Appeal no.21,564, involving the interpretation of the paragraph of article 85 of the Federal Constitution. The Court stated that, despite the future tense of the definition of crimes of responsibility, there is no impediment to application of Law no.1,079, passed by the Congress on 04.10.50, more than 48 years prior to promulgation of the Federal Constitution.

The decision issued by the Supreme Court was all the more surprising in the sense that, once he has been considered guilty, the punishment to be imposed on the President of the Republic is defined in the Federal Constitution (article 52, paragraph), while the crime upon which the accusation is based is that specified in a lesser law promulgated more than 48 years ago or, more precisely, in article 5 to 10 of Law no.1,079, dated 04.10.50. Thus, we have the following situation: the crimes upon which the accusation is based are defined in less important legislation approved by a simple majority if the Congress, while the sanctions are specified in the nation’s constitution.

Consequently, once the Chief Federal Legal Advisor is excluded, all other public agents to be tried before the Federal Senate will be judged according to the terms of Law no. 1,079/50.

Here, one should stress that the office of the Chief Federal Legal Advisor is excluded for the simple reason that this position, which corresponds to the chief legal advisor of the President of the Republic, was introduced with the 1988 Constitution and, therefore, did not exist when Law no. 1,079/50 was passed. Though the Brazilian Constitution was promulgated more than ten years ago, no legislation has been passed in the intervening period dealing with impeachment of the Chief Federal Legal Advisory. Thus, should he be charged with the crime of responsibility, there is no way in which, according to Brazilian legislation, he could possibly be tried before the Federal Senate or any other entity for that matter.

According to Law no. 1,079/50, any Brazilian citizen entitled to full civil and political rights is qualified to denounce a public authority before the Federal Senate. However, the denunciation must be received and examined while the accused has not definitely left office. Should the office be vacant for any reason whatsoever, including resignation or dismissal from office upon request, the process of impeachment cannot be initiated no matter what the gravity of the accusations.

In the case of the Ministers of the Federal Supreme Court and the Attorney General of the Republic, the denunciation is submitted directly to the Federal Senate with no need for examination by the Federal Chamber of Deputies. In this specific case, there is no need for a Committee of Accusation, since the denouncing party would be called upon to sustain the accusation before the Senate.

In case involving accusations against the President, Vice President and Ministers of State, the denunciation must first be submitted to the Federal Chamber of Deputies. That House of Congress is charged with examining the denunciation of crimes of responsibility and determining whether it is or is not admissible. The members of the full House are called individually by name and must announce their acceptance or rejection of the denunciation. During this stage of the process, the accused is not entitled to defense, since the House is not sitting in judgment of the accused but rather deciding whether or not there are grounds for a trial.

Once the denunciation has been accepted by two thirds of the Chamber of Deputies, the entire process, including the accusation and all other documents appended by the accusing party, are remitted to the Federal Senate where the accused will be tried. At that point, the Chamber of Deputies designates a Commission of Accusation composed of three Federal Deputies who are charged with accompanying the process before the Senate. This Commission will present formal accusation before the Senate and define the limits of the denunciation. Once the case has come before the Federal Senate, article 23,& 4 of Law no. 1,079/50 excludes the accusing party (citizen) from the process and charges the aforementioned Commission with exclusive responsibility for presenting the charges.

During the entire impeachment process, the accused, the Commission of Accusation and the Senator are entitled to contest any witness brought forward by either side. This can be done by casting doubt upon the testimony of witnesses, raising suspicious as to their reliability or possible impediments to acceptance of their testimony or even raising the possibility of false witness.

How fair is an impeachment process conducted by the Congress? Let’s debate that in the next article. Part 4.

IMPEACHMENT IS PATRIOTIC- PART 2

The Brazilian Congress launched impeachment proceedings against president Dilma Rousseff who is accused of manipulating government finances to get re-elected last year. The petition accepted by the Lower House Speaker Eduardo Cunha, was filed by several jurists, including Helio Bicudo, one of the PT's founders.  

The accusations against Rousseff are unrelated to the corruption scandal, which has uncovered a complex multi-billion-dollar corruption scheme at state-owned oil company Petrobras and led to the arrests of top business and political leaders, but has not implicated the president directly.

Rousseff, however, has seen her popularity drop precipitously since being narrowly reelected last year. The Petrobras scandal has taken down members of her party, and the country has entered its worst recession in decades.

According to Datafolha poll only 10% of respondents characterized Rousseff's government as “good,” while 22% called it “regular,” and 67% considered it “bad or terrible.” Definitively this is not the best scenario to face the impeachment.

Part 2

In Brazilian constitutional law, the expression “crime of responsibility” corresponds to political-administrative violations not subject to penalties of a criminal nature. On committing “crimes of responsibility”, the public agent violates the duties inherent to his public position or function.

In Brazil, impeachment is defined in the Federal Constitution and in Ordinary Law no. 1,079, dated 04.10.50. These instruments grant the Federal Senate exclusive authority to judge the President and Vice President of the Republic for crimes of responsibility, as well as Ministers of State for crimes of the same nature connected to those said to have been committed by the President or Vice President, and the minsters of the Federal Supreme Court, Attorney General of the Republic and the Chief Federal Legal Advisor.

The Brazilian Senate is composed of 81 members or three from each state and the Federal District and their tenure in office is eight years. Every four years, the representation of each State and the Federal District is renewed alternately by one third and two thirds of the members.

Governors, mayors and the members of municipal councils are also subject to impeachment for crimes of responsibility. However, these trials are not held before the Federal Senate.

The Governors of the States and Federal District are judged by their respective Assemblies or as determined in the state constitutions. Normally, once the required authorization has been granted by the Assembly or Legislative Chamber, Governors are judged by a mixed tribunal composed of 5 State Deputies and 5 Senior Judges, with the Senior Judge who holds the position of President of the Court of Justice of the State or Federal District as the presiding judge. The members of the court of impeachment are chosen as follows: the representatives of the legislature are elected by the full Assembly or chamber, while those from the judiciary are chosen by lot.

Mayors and Councilpersons are judged by the Municipal Legislative Chambers, according to the terms of Decree Law no.201, dated February 27, 1967. In these cases, there is a basic difference that deserves mention. When judging mayors and councilpersons, the powers of the respective legislative councils are restricted to removal from office and do not include loos of political rights or ineligibility for public office. However, article 1, line “b” of Complementary Law 64/90, states that office-holders who have been found guilty are ineligible for election during the remaining period of the mandate for which that person was originally elected and in the three-year period subsequent to the end of that legislature.

If there is no consistent connection or link between the crime of responsibility practiced by the President or Vice President and the crime practiced by a Minister of State, the latter will be judged by the Federal Supreme Court, the highest court of the judicial system, and not by the Federal Senate. Consequently, one concludes that crimes of responsibility committed exclusively by Ministers of State will always be judged by the Supreme Court and nobody else.

Now that I explain how the process begins, next article I will analyze how that the Process of Impeachment of a Brazilian president should works before the Brazilian Federal Senate. As I write this article many political parties are trying to change the rite at the Supreme Court to accommodate their interests.

Let’s talk about that next!

IMPEACHMENT IS PATRIOTIC

Introduction

After 23 years, the word Impeachment is back in use in the day-to-day vocabulary of the Brazilian people. The most interesting part however is that in 1992 I criticized the 42 years old law from the 1950, for not been regulated, and today 65 years after being approved and 23 years since it was used for the last time, it continues with the same vices and defects from day one. So, once again is at the mercy of many interpretations, where each side, conveniently, interpreted the law as they see fit in accordance with their best interest and cause.

This process should only be led, debated and decided by the Congress and not by the Judiciary, but because of the inefficacy and lack of interest of the Brazilian Congress in passing regulations for this 65 years old law, which is about to be used in an Impeachment procedure against President Dilma Rousseff, the legislators in order to avoid their responsibilities, decided to ask the judiciary to take over the proceedings.

In my 2001 book, "Globalization-Public Administration Essays", Chapter 8, I wrote about the impeachment process in details and I made an analytical comparison with Impeachment process applied in United States with the one in Brazil. At that time the USA Congress was debating on impeaching President Bill Clinton. In the next few days I write about this important chapter of the law, since are many things to be said and analyzed

Part  1

The concept of impeachment arose in the second half of the 19^th century in Great Britain. It was initially conceived as an instrument of parliamentary oversight of the executive and was designed to hold those exercising political power accountable both individually and for administrative acts of the State. In England, the house of Commons, the most solemn grand inquest of the whole kingdom, is charged with formulating the accusation, while the House of Lords, the highest court of criminal jurisdiction of the Kingdom, sits in judgment.

The power of judgment exercised by the House of Lords is not restricted to political crimes but is also extensive to criminal offenses, thus justifying the fact that it has issued sentences normally reserved to the criminal court system, including banishment and even capital punishment.

Though initially targeted at government ministers, impeachment could also, at least in thesis, be used against all subjects of the kingdom and seems to have been applied to judges and jurists. In the 1678 judgement of Lord Danby, it was determined that Ministers were accountable not only for questions of legality, but also for honesty, fairness and the usefulness of their acts.

The United States of America was the legitimate heir to the English concept of impeachment.  The nation rapidly adapted the institution of impeachment to its own needs and incorporated it into the system of checks and balances among the three branches of government, an essential element of any federal system. Aside from this, the United States transformed it into an essentially political instrument. Though the question is not dealt with in the Articles of Confederation, the colonies of Virginia, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, Georgia and New York introduced the concept of impeachment into the debates at the Philadelphia Convention.

Aside from the President and Vice President, all civil servants in the United States are subject to impeachment. In the American Constitution, impeachments cited in article I, Section 3; article II, Section 4; and article III, Section 3.  Articles II, Section 4 states the following: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”.  

The fundamental difference between impeachment in England and in the United States is the fact that, in the first case, the House of Lords has full and unlimited jurisdiction to judge the accused, even for criminal acts, and can apply sanctions of a penal nature to the accused. In the United States, on the other hand, the only punishment that the Senate can impose is removal from office and ineligibility for office, while the judiciary is responsible for judging any common crimes that may have been committed.

Another important difference is that, in the case of the House of Lords, impeachment trials are not carried out under oath, though each member will make what is called a declaration of honor. In contrast to this, the members of the American Senate, when brought together in a Court of Impeachment, are placed under oath.

In Brazil, the institution of Impeachment is very similar to the American model, particularly in the sense that, in both countries, the only sanctions that the Senate can impose are removal from office and ineligibility, while the judiciary is charged with judging common crimes and imposing the corresponding sanctions. Consequently, in Brazil, the process of impeachment is also an essentially political proceeding.

Let’s talk about that next!

THE POLITIC OF HATE

The Republican Party candidates are involved in a game of hate trying to become the Party nominee, they are trampling over each other insulting as many people as they can on the way to November.

The latest group to be muck was a New York Times Reporter with a physical impairment, when  Trump, the king of the insult parade, made fun of the awkward movements of someone that cannot control his arms.

Of course Hispanic were the biggest punching bag, with all candidates accusing them of all kinds of crimes and misdemeanors, including some that voted in favor of a solution to the country immigration crisis.

Right now the principal target of all of the Republican nominees is Islam, they are simple using the its religion as a punching bag, in order to win the election; ISIS must be happy as hell, showing videos of muslin hating Republicans to their hordes of new recruits, especially those video of Republicans calling for the USA starting to kill muslin families or a Christian President of a University calling for the arming of his students to kill muslins.

Is amazing how Republican think they can win a national election hating women, Hispanic, Asians, gays, lesbian, handicapped people and of course blacks, the poor, and senior citizens. They may need a course in basic mathematics in order to find out that if you add 2+2 the answer is not 5. Perhaps this is the perfect script for the next best seller: Campaign for Dummies.

It's clear that the US citizens hopes that future elections will be about issues and not hating, about solutions and not criticisms, about progress and not pessimism.

THE THREE CUBAN EXILES

As a result of the Obama Administration recent approach to Cuba, the Cuban community in Miami is into an inter community fights, between thus in favor of the new relations between Cuba and the United States and thus against it, to understand  why, we need to analyze the composition of the Cuban Exile community and how years of Castro control of Cuba has affected the Cubans in the United States.

The first Cubans to arrive in the US in the 1959 to 1961 where Cubans that were from the beginning against Castro and its Government, either because they supported the Government of Batista, where participant of the 1958 elections for President and Congress in Cuba, who never assumed their positions because Castro suspended the National Congress, and did not allow the elected new President Justo Luis del Pozo to assume his elected position, see despite everything that has been said about Batista, he like the Dictator in Chile, agreed to new elections, and despite the fact that he was called a Dictator, the National Congress before Castro had two bodies, a Senate and a Congressional site, and more than 21 parties participated in prior elections, so we had one strong man Batista and a very competitive Congress. So these first Cuban exiles amounted to maybe 30 to 50 thousand people, that were against the Revolution from day one.

After these first set of Cubans came in and after the failed bay of pigs invasions, the next set of Cubans were people disillusioned with the Revolution, simple put, they sought they were going to get a better Government and they got a worse dictator than they bargain for, this dictator dissolved the National Congress, created a Committee of Defense of the Revolution, to watch over everyone and jailed people left and right and during the first year of the takeover executed over 5000 people without a proper trail.

During the next 30 years the people that came could not talk to their families or friends in Cuba, because talking to them, means that they could go to jail for talking to the gusanos (worns as Castro called the people against the Revolution) or could lose their jobs or their college scholarships. So as a result people in Miami only care about Castro going down, and care much less about the situation of their friends and family in Cuba, since they were not in touch of them, because it was no good for their families for them to talk or simple because in the US, people have to work for living, and being worrying about a family or friend in Cuba that they could not talk to, was not in their cards.

Then came the fall of the Russian Empire, and the end of the subsidies to Cuba, no more free oil at the tune of 9 million tons per year, no free fighters planes, making Cuban Air Force the third largest in the Americas after USA and Canada, no more free Naval ships, making Cuban Navy the second largest at one point after the US, even thou Canada had probably better naval ships, Cuba more of them; No more Cuba biggest fishing fleet in the Americas; no more buses that did not work but Cuba did not have to pay for it; no more loans that they did not have to pay for it.  So what did Castro do, he decided that he could not milk the Russians and Easter European countries and some other dummies like England, Japan, Spain and France, he was going to milk the Cubans coming into the US, telling the Cubans in Cuba, tell your friends and families that now they can help you and no more problems, they are no longer gusanos, now they are the Cuban Diaspora in Exile, nice people that left looking for a better living.

So the third exile group became a force to be reckon with, people who came here looking for a better living, taken advantage of the Cuban Adjustment Act, but not caring that Castro was using them to keep the Revolution afloat, thanks to his 20% tax on the dollars that they send to Cuba to help their families. 

Immediately this third exile group, became the enemies of the first two groups, because it represent the people that are financing their sworn enemy Castro at a tune of 1200 million dollars per year. 

These new exiles have cousin, brothers, mothers and fathers that they wanted to help, they do not care about the 20% of the 20 dollars jeans that they were buying for 100, they only care about the fact that their dollars were helping their friends and family making a better life.

So it has taken awhile but after 20 to 30 years of a new exile group coming to our shores, all of a sudden these new group of Cubans also have political power, about 40% of them voted with Obama, they mostly register as Independent or Democrats, and they are in favor of things like Obamacare, because they are used to Government sponsor medical insurance and more government assistance.

So what do we have now, a right wing political group of Cubans against the Revolution from the beginning, others that develop a hate for the Revolution after it did not do what they wanted and the sons and daughters of these two groups of exiles trained to hate everything that the Democrats have to offer and to love anything that the Republican Party offers even if it is an stupid idea, and the new Cubans who may or may not agree with the old Cubans, but definite are not following the line or the instructions of the old Cuban community.

What is the solution, must of the old Cubans are 80 years old or older, so sooner or later they will be gone, while they have a very large followers compose of their son and daughters their grandkids are not following on their parents or grandparents footsteps, they are gradually becoming more independent, so sooner or later there will be a change on the election results and the 40% voting for changes on the Cuban American policies, will become 50 or maybe 60, is all a matter of time, because people change even if some do not want them to change.

About Castro, well he is losing too, he does not have the money to provide free education or even to guarantee a better future, people are no longer afraid of the Government, and things that you could not imaging 10 years ago, are happening, like a lady writing a paper that is more popular than the Gramma national newspaper. 

The good thing about life, is that life changes, nothing stay the same.

http://www.presstv.com/Video/2015/06/16/416070/Jeb-Bush-US-2016-presidential-campaign

http://www.hispantv.com/detail/2013/04/28/222656/seminario-internacional-sobre-desarrollo-economico-sustentabilidad-brasil

La presidenta de Brasil, recibió en Brasilia, a las autoridades de la Unión Europea (UE) que intervinieron en la VI cumbre de la Asociación de ese bloque de Naciones y el Mercosur. 

En la recepción, realizada en el Palacio del Planalto, estuvieron presentes Herman Van Rompuy, presidente del consejo europeo, José Manuel Durao Raposo, presidente de la comisión europea y Karel de Gucht comisario europeo del comercio.

Entre los temas de mayor trascendencia tratados en el encuentro anual que se efectúa entre las dos regiones, están el análisis de la situación económica y financiera internacional; el proceso de los temas del G-20 y el avance de las negociaciones para un acuerdo de Asociación de la UE con el Mercosur.

Por parte de Brasil quedó claro que este país tiene interés en buscar herramientas para combatir la crisis e impedir que la adversidad de la coyuntura internacional afecte a la mayor economía latinoamericana.

Para la Unión Europea, que es el principal socio comercial de Brasil, la idea es aumentar el comercio y las inversiones brasileñas en Europa, las mismas que ya superan los 80 mil millones de dólares.

Rony Curvelo, Brasilia 

The majority of Brazilians living in the southern city of Sao Paulo feel insecure and dissatisfied with the services provided by the government, Press TV reports.

The Brazilian Institute of Surveys and Statistics revealed 91 percent of residents in Brazil’s largest city feel the need for greater police protection and more entertainment facilities, according to reports on Wednesday. 

The opinion poll has recorded a 47 percent satisfaction in living standards -- being the worst since four years ago -- and 56 percent of Brazilians would prefer to leave the city. 

Sao Paulo’s 11 million residents have seen an increase of crime rates since 2009, which has heightened anxiety levels among the public. 

“The fact is that 100 percent of the population is scared. The situation of public safety in the city of Sao Paulo is shameful. The gangs are in command and the state governor is responsible for that,” Sao Paulo Commissioner Laercio Benko Lopes said.

Social science experts say the rise in violence across the city comes from social inequality and inadequate public services such as libraries, parks or culture centers. 

Crime prevention on the streets of Sao Paulo comes with tens of thousands of civil and military police officers, which 60 percent of people in the city say they do not trust. 

“The police are working the streets with more than 100,000 officers,” Governor of Sao Paulo Geraldo Alckmin said and added, “We have increased the number of officers to act extensively to reduce crime.” 

On October 31, 2012, the government launched a key anti-crime operation aimed at reducing major offenses, following a rise in killings in the area

In defense of a sacred ground, about 20 Indians from the Maracana Indigenous tribe, who are now living on the ground of the ruins of the Indian Museum, promise to fight to the end against the demolition of the property ordered by the State Governor Sergio Cabral.

The museum was built 150 years ago and is located near the famous Maracan stadium, one of the landmarks of Rio de Janeiro. 

To protect the Indians from lawsuits, the Public Defender Union contested the demolition arguing in court that the property presents no risk of collapse and that it does not interfere with the mobility of people during the Soccer World Cup, the main reason given by the government to remove the Indians from the building. 

The Shock Battalion of the Military Police stands outside waiting for the final decision to remove all members of the tribe from the site. 

The Indians have made a cultural center at the site and hope that the current situation will give visibility to tribal concerns. The Indians have reaffirmed that they will fight to the end to stay in the area saying that the Indian Museum is a historic building and it is where they want to live.

Hugo Chavez

Trata de Personas

Según un nuevo estudio realizado en Brasil, hubo un aumento en la tasa de homicidios entre los adolescentes, en su mayoría afrodescendientes. 

Rony Cuvelo, nuestro corresponsal en Sao Paulo, nos explica lo que acontece en Brasil. 

Capítulo X- Final

Os bastidores do julgamento no TSE e no STF

O julgamento do recurso foi incluído na pauta, inicialmente, da sessão de 21 de setembro de 2000, quinta-feira, oportunidade em que o Ministro Fernando Neves, antecipadamente declarou-se impedido de julgar, uma vez que ele era advogado do ex-presidente desde 1993. Collor, por sua vez, sempre através de seu advogado, pediu o impedimento do Ministro Nelson Jobim e a suspeição do Ministro Carlos Madeira.

Jobim porque fizera parte ativa no julgamento do Senado em 1992, quando este era senador atuante e o outro por ter sido advogado de Fernando Henrique na campanha passada.

Os ministros entenderam e acolheram a alegação, o que resultou no adiamento do julgamento, já que não havia dois ministros naquele momento para substituí-los e recompor o tribunal.

Com este adiamento, aguardou-se o preenchimento da vaga, em razão de o julgamento envolver matéria constitucional, o que, nos termos do § único do art. 19 do Código Eleitoral, exige a presença de todos os membros do Tribunal.

Quatro dias depois, 25 de setembro de 2000, foi nomeado o ministro Carlos Caputo Bastos para substituir Fernando Neves, e, quando empossado no dia seguinte, chamado a compor o quorum para o julgamento do recurso especial eleitoral. Neste momento o ministro espontaneamente manifestou sua suspeição, por motivo de foro íntimo, ou seja, da mesma forma que o Tribunal Superior Eleitoral encontrava-se impossibilitado de compor o quorum para julgar o recurso na sessão de 21 de setembro, voltou a encontrar-se impossibilitado de compor o quorum para julgar o recurso na sessão de 26 de setembro de 2000

Neste caso, como manda a lei, o TSE deveria ter enviado imediatamente o processo para o STF.

Entretanto, para surpresa de todos, os ministros decidiram julgar o recurso assim mesmo. Por 4 votos a 2, o plenário do TSE considerou que Collor não poderia participar das eleições, afirmando que ele só terá a plenitude dos direitos políticos no dia em que puder votar e ser votado, e que a inabilitação para o exercício de função pública, embora seja uma sanção peculiar, não se confundindo nem com a inelegibilidade e nem com a suspensão de direitos políticos, levaria à inelegibilidade.

Com esta decisão Collor estava fora do horário eleitoral

O estranho e curioso é que o próprio TSE divergiu da jurisprudência já consolidada por eles mesmo. Como em um prazo de cinco dias ter dois comportamentos? Como julgar com quorum não completo? O que mudou em cinco dias? A lei? Sabemos que não. As pressões, possivelmente.

Com este comportamento, o TSE violou os arts. 14 , 15 e 52, § único , da Constituição Federal.

Mais um recurso ao STF

Com o provimento do recurso no dia 26 de setembro de 2000, Pedro Godilho recorreu da decisão ao STF com um embargo declaratório para garantir a Collor a participação no horário gratuito como também para que os votos dados a Collor nas eleições fossem válidos, enquanto se esperava o julgamento do recurso ao STF, caso viesse depois das eleições.

No recurso ao STF, o argumento mais forte foi o de que o julgamento do TSE teria sido feito por apenas seis ministros quando o certo seriam sete e que, se todos tivessem participado do julgamento, o resultado poderia ser outro.

Em síntese, disse Godilho: “ Sem o quorum completo não podia o TSE julgar recurso especial que envolve matéria constitucional “ e mencionou decisão de Medida Cautelar relatada pelo ministro Sepúlveda Pertence:

“Ementa:
STF: competência originaria: exceção de suspeição da maioria do Tribunal competente, pendente de decisão: diligência.

1. Compete a cada tribunal julgar mandado de segurança contra seus próprios atos administrativos, incluídos os de instauração de processo disciplinar e suspensão cautelar de magistrados sujeitos a sua jurisdição.

2. Para que essa competência se desloque para o STF, não basta que o interessado haja argüido a suspeição da maioria dos membros do Órgão Especial do Tribunal competente.

3.Oposta a exceção, se os excetos reconhecem a suspeição, ai, sim, a competência do STF se firma de logo; se a recusam, porém, ao STF incumbe julgar originariamente a própria exceção e, somente quando acolhida essa, o mandado de segurança.

4. Suspensão do processo do mandado de segurança e conversão em diligencia para obter informações acerca da exceção de suspeição.

Como se pode ler no ponto número três, em decisão anterior, o Supremo Tribunal Federal já havia determinado que o TSE sem quorum deve enviar o julgamento para o STF.

Com a decisão tomada pelo TSE sem o quorum previsto no § único do art. 19 do Código Eleitoral, além de ter usurpado do STF, eles causaram um dano irreparável ao Collor, uma vez que houve a suspensão da propaganda eleitoral gratuita que acabava no dia seguinte, embora pudesse seguir candidato,

Godilho então pediu ao STF o deferimento do pedido de liminar nos seguintes termos:

“Em face do exposto, considerando especialmente o dano irreparável que acarretará ao reclamante, pelo seu afastamento da propaganda eleitoral gratuita, requer o mesmo se digne V.Exª deferir o pedido de liminar, para suspender os efeitos da decisão tomada do TSE, até que, depois de requisitadas as informações à autoridade reclamada (Presidente do TSE) e dada a vista ao Ministério Público, pelo prazo improrrogável de 5 dias (Lei 8.038/90, art. 16 ), possa essa eg. Corte julgar procedente a presente reclamação, para o fim de determinar o regular processamento e julgamento do recurso especial eleitoral por esse STF, caso em que estará esta eg. Corte praticando mais um ato de inteira justiça.

No dia seguinte e último de horário gratuito de televisão e rádio, todos corriam, mais uma vez, contra o tempo. Jogando todas as cartas que ainda possuía o advogado, enquanto esperava a decisão do STF, deu entrada no TSE, o mesmo que horas antes havia negado a Collor o direito de prosseguir, com um RECURSO EXTRAORDINÁRIO pedindo que autorizassem Collor a participar, pelo menos do horário gratuito noturno, enquanto o STF julgasse o mérito, de acordo ao artigo 15 da lei complementar 64 de 18 de maio de 1990, que diz:

Art. 15. Transitada em julgado a decisão que declarar a inelegibilidade do candidato, ser-lhe-á negado registro, ou cancelado, se já tiver sido feito, ou declarado nulo o diploma, se já expedido.

Depois que o horário para entrega da fita para veiculação passara o ministro Néri da Silveira despachou, negando o pedido

Neste momento, Collor não só perdeu o direito de aparecer pela ultima vez no horário gratuito como também não pode participar do debate final na Bandeirantes.

O advogado, ainda deu entrada no TSE com um pedido específico para que Collor participasse naquela noite do último debate da TV Bandeirantes, lembrando que na vez passada este mesmo tribunal reconheceu ser a participação de Collor legitima, uma vez que o partido tinha representação na Câmara Federal. Lembrou ainda que a decisão final de indeferimento do seu registro só se dará depois de transitado em julgado, o que ainda não havia ocorrido. Disse também entender que os efeitos do cancelamento por parte do TSE no julgamento anterior se restringiam como determinava a resolução 20.562/2000, a propaganda eleitoral gratuita e não ao debate.

Este recurso não chegou a ser julgado por que poucas horas depois, às 20 horas do dia 28/09, o STF julgou improcedente o recurso de Collor aniquilando, de uma vez por todas, as chances de continuar candidato à Prefeitura da capital paulista.

Em São Paulo, no aguardo de notícias, Collor tomou conhecimento do resultado, pegou uma folha de papel escreveu a seguinte nota e foi jantar:

“Coroa-se um longo processo de amesquinhamento político com a proibição de minha candidatura à prefeitura de São Paulo. Denuncio à consciência cívica da Nação, ao povo brasileiro, especialmente ao eleitorado de São Paulo, o esbulho de meu direito em submeter-me à vontade soberana de minha gente.

Pode um homem público, no gozo de seus direitos políticos, após ter ocupado a Suprema Magistratura de seu país, ser impedido por manobras subalternas e pela má interpretação da Lei, de disputar um mandato eletivo?

Por quais motivos somente agora, na antevéspera do pleito, num ato de força e com a participação capciosa e ativa dos maiores partidos políticos, cerceiam a possibilidade de meu retorno às lides eleitorais?

A cidadania testemunha minha luta pelo direito de submeter-me ao seu irrecorrível julgamento.
 cassação do meu inegável direito de disputar o voto é, tão somente, mais uma das perseguições que me promovem os ódios e o ressentimento dos que, incapazes da vitória eleitoral frente a mim, buscam-na nos bastidores do poder, apadrinhados por um governo fraco, ineficiente, desmoralizado e corrompido.

Mais cedo do que imaginem os meus detratores, estarei – novamente – levando minhas idéias e minhas propostas aos brasileiros, buscando sua confiança expressa pelo seu voto.

Agradeço, sensibilizado, aos paulistanos que se preparavam para sufragar meu nome. Sou-lhes grato e continuarei na luta por um país justo, fraterno e livre.

São Paulo, 29 de setembro de 2000.
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A moral da história aqui contada nos dez capítulos, deixo por conta da frase do economista Ibn Khalbun

“ O Estado é um agente que impede muitas injustiças, exceto as que ele próprio comete ”.