Struggling Against Impunity: The Budding Revolution in Brazil’s Judiciary

For decades, Brazil has earned itself an international reputation as a land of impunity, where corrupt politicians, crime bosses, and former military torturers have been able to live above the law, unburdened by the fear of having to pay for past misdeeds. With a weak and deferential court system burdened by systemic corruption, parliamentary immunity against prosecution, and a generous amnesty law shielding past members of the military regime, the government and its citizens were virtually powerless to hold the powerful elite to account. No story better exemplifies this state of affairs than that of former president Fernando Collor. After resigning the presidency and being impeached by the Senate in 1992 on corruption charges, he was acquitted by the country’s Supreme Federal Tribunal (STF), the nation’s highest court. Collor lay low for a decade, but returned to politics in 2006 and was elected to the Senate, where he currently serves. Many Brazilians I talk to are infuriated by Collor’s presence in their highest legislative body, and point to this as evidence that the rule of law does not seem to apply to the country’s ruling elite.

This state of affairs is more than simply unjust. It is a major inhibitor of the country’s development. I have written before about the importance of developing shared norms and rules to govern societal interactions in order to build an economy’s human capital stock and improve its prosperity. The rule of law is an essential ingredient in this process. It represents the truest form of fairness that human society has yet developed: communities coming together to determine their own rules and enforcement procedures to guarantee that each individual will be held to the same standards. When the rule of law is not strong in a society and decisions appear to be made arbitrarily by government officials, citizens’ faith in the collective is undermined.

Many of the world’s major emerging economies are struggling to build an adequate rule of law (China and Russia come to mind). Brazil is much further along in this regard, as it has fully functional legislative, executive and judicial institutions defined within a constitution supported by popular mandate. But the country’s long tradition of impunity for the elite undermines faith in these institutions, and thus weakens the rule of law. When those at the top do not play by the same rules, those below fear that strict obedience to rules and laws will put them at a disadvantage. This has led to the famed “jeitinho brasileiro” (Brazilian way), a strategy for circumventing rules and procedures by a variety of approaches, such as using insider contacts, emotional appeals, or offering favors. Such behavior is considered a necessary strategy to get ahead here, but it poses a major challenge to Brazil in terms of building an honest, fair, meritocratic society.

Despite this disappointing history, there is reason to hope that Brazil is finally turning a corner. In a previous text, I mentioned some positive signals in the country’s fight against corruption, most notably a new Freedom of Information Act to empower citizen watchdogs as well as the “Clean Record” law that bars those convicted of a crime in the last eight years from holding office. But the most heartening signs of change are coming from an institution that was once widely distrusted by the public: the Supreme Federal Tribunal itself. 

The Mensalão Trial and the CNJ

Over the last several months, Brazilians across the country have been glued to their televisions watching daily broadcasts from the STF as the court tries the most high-profile corruption case in its history. Known as the “mensalão” (big monthly payment), the scandal dates back to President Lula’s first term in office, when some of his top aides and congressional allies were caught diverting money from state-owned enterprises in order to buy votes in the Congress. The scandal caused a massive uproar in the press, as it embroiled President Lula’s chief of staff and presumed successor, José Dirceu, who was accused of coordinating the scheme on behalf of the executive. Although Mr. Dirceu was expelled from Congress, President Lula denied any knowledge of the incident and went on to be reelected by a wide margin just a year later. Furthermore, Mr. Dirceu’s replacement as chief of staff, Dilma Rousseff, was elected president in 2010, and members of the ruling PT claimed that the election results spoke for themselves, acquitting the party of any wrongdoing.

While the scandal did not shake the PT’s hold on power, it did spring the country’s judiciary into action. The attorney general brought charges against 38 individuals, including Mr. Dirceu, accusing them of money laundering, embezzlement, corruption, and formation of a criminal gang. After six years of legal wrangling, the STF finally heard the case this year. Many Brazilians were cynical about the process. Opinion polls showed that, while the vast majority believed that those involved were guilty, few believed they would actually be convicted, considering that eight of the court’s eleven ministers were PT appointments. It was thus a pleasant surprise when 25 of the accused were convicted, including the PT’s three “big fish”: Mr. Dirceu, José Genoino, the PT’s ex-president, and Delubio Soares, ex-treasurer of the party. While the STF is just beginning to hand out sentences and many are still skeptical that any of these three will serve prison time, it has nevertheless been a watershed moment for Brazil. There is growing hope that the case is a sign of things to come, that the STF will begin to exert its influence as a fair and independent arbitrator, and that impunity will no longer have free reign. There is no denying the important psychological impact the case has already had across society.

The Mensalão case comes on the heels of another recent groundbreaking decision from the STF. In 2010, Eliana Calmon, a career judge, was appointed as head of the National Council of Justice (CNJ), an ombudsman agency for the judiciary. She quickly earned a reputation as a fiery crusader determined to promote accountability and fight corruption, excessive benefits, nepotism, and general sclerosis and inefficiency within the third branch of government. Ms. Calmon made headlines when she accused many of the country’s judges of being “bandits who hide behind their togas” (referring to the black robes high-ranking judges wear in court), interested only in advancing their own interest rather than promoting the rule of law. The judiciary pushed back, threatening to curtail the CNJ’s investigative powers. Yet the public rallied to her cause, and Ms. Calmon quickly emerged as a popular hero in social media and national news outlets. The issue came to a head in February of this year, when the STF voted by a nail-biting 6-to-5 margin to maintain the ombudsman’s full powers intact. Ordinary Brazilians were overjoyed by the news, and Ms. Calmon even earned a Carnival float in her honor. Former President Fernando Henrique Cardoso was effusive in his praise, calling the case “crucial for Brazilian democracy”. 

Future Cases 

Several upcoming cases will continue to test the mettle of the STF and will serve as crucial indicators as to whether the Mensalão trial and the CNJ case were flashes in the pan or signs of a broader shift. The first of these is expected to be the “Mensalão Mineiro”, a vote-buying program in the state of Minas Gerais run by the PSDB that was widely seen as the model for the PT-led scheme (even involving some of the same individuals). The second is a more recent scandal involving a major organized crime boss, “Carlinhos Cachoeira” (Charlie Waterfall), who was arrested earlier this year. Extensive wiretaps have revealed Mr. Cachoeira’s relation to numerous high-level politicians, including Demostenes Torres, a right-wing senator who gained fame in 2005 for leading the congressional inquiry into the Mensalão scandal. Mr. Torres was recently removed from the Senate by his colleagues and looks likely to face prosecution in the near future. A congressional panel continues to investigate the affair, but it may end up ensnaring several governors and congressmen and is likely to have involved the embezzlement of hundreds of millions of reals earmarked for construction projects. At some point, the case is likely to end up at the STF as well.

PT leaders, including former President Lula, have been especially keen to prosecute both cases, as they see them as a chance to even the score following the Mensalão trial. In essence, political parties are now eager to use corruption scandals in order to discredit their opponents and strengthen their popular support. These motivations may not be pure, but they do represent a hopeful sign in the struggle against impunity. Rather than politicians conspiring amongst themselves to avoid prosecution, they now see anti-corruption crusades as their ticket to electoral success. This should ultimately help to strengthen the rule of law, providing that an attentive public and investigative media continue to press the issue.

In addition to corruption scandals and oversight of the judiciary, Brazilians have opened up one more front in their fight against impunity: the blanket amnesty for those involved in the military dictatorship. I have written before about President Rousseff’s promotion of the Truth and Reconciliation Commission that is currently investigating human rights violations by the former regime, an issue that her predecessors preferred to avoid altogether. Before relinquishing control, Brazil’s generals passed a generous amnesty law that would shield them from any future prosecutions. Unlike its Southern Cone neighbors, Brazil chose to keep the law on the books well after its democracy became firmly established. A 2010 STF review upheld the law, although it was struck down later that year in a non-binding decision by the Inter-American Court of Human Rights. Yet the issue remains a somewhat grey legal area, and human rights lawyers have argued that kidnapping and torture of “disappeared” individuals constitutes an ongoing crime that is not protected by the amnesty law. They were successful this week in convincing the São Paulo judiciary to take up just such a case. While no one is sure where such prosecutions will lead, and what the end result of the Truth Commission will be, there is growing optimism that Brazil will finally gain some closure on the issue and end the legacy of resentment and frustration caused by the amnesty law. 

Problems Ahead: Will Real Reforms Come? 

While these recent cases have created some optimism around the future of the Brazilian judiciary, a few words of caution are in order. High profile corruption cases may cause a political stir for some time and generate hope that the system will be forced to change, but that is not necessarily the case. Italy is the perfect example of this. The “Bribesville” corruption scandals in the early 1990s toppled the entire political order and brought to power new parties and individuals who promised to bring about major change. Twenty years later, Italy is facing a new Bribesville, as a new series of scandals has emerged and the political order is once again in flux. Without undergoing major reforms to root out corruption and change its political culture, the country wound up repeating its own history. A series of cases in front of the STF may make Brazilians feel that justice has been served, but it will ultimately be meaningless if major reforms to combat white-collar crime are not undertaken as well. A former president of the STF recently claimed that the Mensalão trial would not change the country’s history if not accompanied by more meaningful political reforms to change the process of coalition-building in Congress and discourage vote-buying schemes.

Looking at just the Mensalão trial alone, the weaknesses in Brazil’s judiciary are readily apparent. The general sensationalism of the trial was on full display during the proceedings, as ministers at time switched their votes following public outcry that they were being too lenient. Two separate votes to condemn Mr. Dirceu were taken right before the first and second rounds of the municipal elections, causing suspicion among many observers that the timeline was planned for political theatre.

The bigger problem, however, has been the relative inefficiency of the process. The case took six years to be tried, highlighting the complexity and slowness of the judiciary. (The Cachoeira case, if charges are indeed brought, is not expected to reach the STF for many years.) The trial itself has already been ongoing for three months, and looks likely to be extended for a significant amount of time due to a chaotic sentencing process that had even the STF ministers confused on procedures. The fact that politicians are entitled to trial by the STF rather than in lower courts makes the process significantly slower, and adds to the public perception that politicians are not treated as equal to ordinary citizens.

The wheels of justice turn notoriously slowly in all judiciaries, including the U.S., but the sclerosis of the judicial system is especially problematic, as it slows down the general functioning of the economy as a whole. The World Bank’s most recent “Ease of Doing Business index” gave Brazil poor marks in important legal matters such as resolving insolvency, enforcing contracts, and registering property.

There is certainly much work to be done in the future, and changes to Brazil’s legal system, if they come, will be slow and steady, not sudden and spectacular. But the country does seem to be moving in the right direction. No longer will politicians be able to assume they are automatically above the law. They are now aware that the public has the power to hold them to account in certain situations. This in itself amounts to a sea change in the way Brazilians view their political system.