UPDATED: In Brazil, the Legislative and Judiciary Face Off

Updates - Dec. 15, 2016.

1. Supreme Court Justice Luiz Fux ordered that process on voting on the 10 measures against corruption bill start again, meaning that the many changes and amendments that all but gutted it have been canceled. The Chamber of Deputies will now once again deliberate on the original bill. Justice Fux cited the notion that a project born of popular initiative may be amended, but its purpose may not be inverted. Congress has the authority to reject it but not to completely transform it. The president of the Chamber of Deputies, Rodrigo Maia, called the intervention “strange” and “inappropriate”.

2. Meanwhile, in the name of closing the budget deficit, the Senate approved measures to combat “super salaries” among public employees, i.e. those salaries that exceed the ceiling mandated by law. If enacted, this project would affect, among others, judges and prosecutors, who have been lobbying against the efforts and called them “retaliation” for corruption investigations. It is estimated that three out of four Brazilian judges earn salaries above the ceiling of 33,700 reais per month (about USD 10,000). Many earn even more than the Justices of the Supreme Court. Senate President Renan Calheiros also tried to bring his proposed project to combat prosecutorial “abuse of authority” to the Senate floor, but did not get enough votes. The project will be relegated to a committee. 

The past few weeks: A series of unfortunate events

After a brief period of respite, tensions are once again building in Brazil at the end of what has been a singularly tumultuous year. Recent moves by Congress to shield itself from anti-corruption investigations have set off the latest round of widespread popular protests, but it was just the straw that broke the camel’s back. A series of missteps, corruption allegations and controversial measures by the government of Michel Temer, combined with continued negative economic forecasts, have been trying the Brazilian people’s patience.

Given all the turmoil, it is becoming abundantly clear that Brazil’s predicted recovery will not be nearly as rapid or straightforward as many had hoped.

Corruption vs. abuse of power

It a country where entrenched corruption has been the norm for as long as anyone can remember, the blockbuster Lava Jato corruption investigation has made lawmakers very nervous. It is hardly surprising, then, that they have decided to push back. So far, their efforts seem to be working, at least partially.

The trouble began with what should have been a success story, the proposed 10 measures to combat corruption. A popular movement initiated by prosecutors as a response to the massive corruption investigations that have swept Brazil in recent years, the measures reached Congress through a petition signed by over 2 million Brazilians. If enacted as originally proposed, the bill would have criminalized and created more stringent penalties for corrupt activities like illicit enrichment and illegal campaign donations. The impetus of the measures was to help reduce impunity by increasing the efficiency of the judicial system, whose byzantine structure has shielded corrupt politicians from prosecution for what feels like forever.

Despite the popularity of the measures, they were always going to be a hard sell for Brazil’s scandal-plagued politicians. The law did not originate with them, after all, but was rather brought to Congress through a popular petition. Although members of Congress were obligated to review and vote on it, they managed to stall for months as they worked behind the scenes to undermine the legislation.

The acrimony and delays intensified as Congress found itself unable to alter the law due to public scrutiny. When they floated the idea of including amnesty for previous illegal campaign donations, public outrage ensued, forcing them to back down. Never in history had Brazilians paid so much attention to what Congress was doing.

It was only when an unexpected tragedy captured the attention of Brazilians that Congress saw a window of opportunity.

A tragic plane crash killed almost the entire Chapecoense soccer team, as well as dozens of journalists. They were traveling to Medellin, Colombia, for a championship final that should have been a triumphant ending to what had been a fairy-tale season for the small-town team. Brazilians were devastated as three days of national mourning were declared.

It was during this moment that Congress, taking advantage of the fact that attentions were elsewhere, decided to finally alter and vote on the anti-corruption measures. Multiple amendments were made to reject most of the proposed measures, replacing them instead with ways to prevent “abuse of authority”. In practice, the gutted legislation would have weakened rather than strengthened anti-corruption efforts by threatening the ability of public prosecutors and judges to do their jobs.

It passed in the lower Chamber of Deputies in a marathon session that lasted until four in the morning on the night after the plane crash. Then, it was promptly sent to the Senate, whose president, Renan Calheiros, tried to call a vote on it right away by using emergency procedures. His own legal issues, however, soon got in the way, and the Senate never voted (although it may not be off the table quite yet).

The Supreme Court: So much for checks and balances

Calheiros has managed to dodge accusations of corruption for his entire career. He is currently facing a whopping 11 investigations and, as a sitting politician, can only be tried by the Supreme Court. This week, he was finally charged (after a three-year delay) in one of the corruption cases pending against him, thereby jeopardizing his ability to push the “abuse of authority” or any other legislation through the Senate.

The problem is that, as president of the Senate, he is second in line in the order of presidential succession, following the President of the Chamber of Deputies. This created a bit of an institutional crisis as the Constitution clearly states that someone who has been charged with a crime cannot be in the presidential line of succession. The implications of this would be for Calheiros to have to resign from the Senate presidency as a result of the charges.

This would create a problem for President Temer because Calheiros, a member of his own party and a close ally, is crucial in getting the Senate to pass the controversial austerity measures that form the basis of Temer’s economic platform. Calheiros’s replacement would have been Senator Jorge Vianna of the Workers’ Party, who is adamantly opposed to the president’s reforms and has threatened to block their passage.

Upon the official filing of the charges, one justice of the Supreme Court indeed called for Calheiros to resign the Senate presidency. However, his decision needed to be confirmed by a vote of the full court. In the meanwhile, Calheiros, who is no doubt taking advantage of his bargaining power in this situation, simply refused to step down. When the full Supreme Court voted, they allowed for a compromise in which Calheiros would get to remain Senate president while being removed from the presidential line of succession.

Jeitinho, Acordão or Pizza?

When push came to shove, it is likely that the executive branch intervened in the fight between the legislative and judiciary to save Calheiros. Simply put, the current administration needs him, and they were willing to sacrifice the Constitution in the name of “political stability”.

It is worth mentioning that this is not the first time that the questionable compromises to what is written in the Constitution have been made recently. When Dilma Rousseff was impeached a few months ago, she was not stripped of her political rights for eight years, as is constitutionally mandated. Ironically, many of the people who applauded this patently unconstitutional move as a show of mercy are now criticizing the compromise made for Calheiros, her political rival.

In any case, Calheiros’s tenure as Senate president will be short-lived. His term ends in February, and another ten investigations are pending against him in addition to the one for which he was charged last week (misappropriating public funds to cover expenses for a child born out of an extramarital affair). After he has served his purpose to the executive, will the judiciary finally be allowed to go after him? We’ll have to wait and see.

Legitimate problems with Brazil’s judiciary

There is no question that legislators are trying to muzzle the judiciary to save their own hides, and that the executive is basically being forced to help them to protect its own agenda. But this is not to say that there are not some legitimate issues with the judicial branch of Brazil’s democracy. As the country uses the current crisis to implement some reforms, it should not overlook the judiciary and its problems.

An issue that has become abundantly clear in recent days is the process through which Supreme Court justices are appointed. They are political appointees, which clearly have repercussions for how the justices vote. Justices have engaged in obviously partisan behavior, calling into question their independence (a problem hardly unique to Brazil – the US faces a similar dilemma). Since they are charged with prosecuting all the corruption cases against sitting politicians, that is a serious problem. Their whole reason for existing is to provide a check on the power of the other branches of the government, and yet they seem to be doing the exact opposite.

It is also important to note that, despite their popularity, the Lava Jato investigations have not been without controversy. The activist judges and prosecutors behind them have consistently been aggressive, at times perhaps pushing the limits of their authority. Another criticism is that the investigations have tended to target some parties (especially the Workers’ Party of Rousseff and the Democratic Movement Party of Temer and Calheiros) and not others (notably the Social Democratic Party). These criticisms are fair and must continue to be stated, and the investigations need to course-correct.

Another important and relevant factor ripe for reform is the fact that Brazil’s judiciary is among the most expensive in the world. The problem of “super salaries” occurs throughout the world of government workers, but it is particularly evident among judges. When journalists have tried to point this out, they have often faced harassment from judges wishing to protect their status. Both of these things need to be remedied, but in the right way. Any reforms have to be for the benefit of the country, not of corrupt politicians who are just trying to avoid getting into trouble.

It is no surprise, then, that the country’s prosecutors and judges tend to oppose both tenets of Temer’s economic reforms. They oppose the freeze on public spending because they want to continue receiving outsized salaries and getting periodic raises. They oppose the pension reform because they are the recipients of some of its most generous benefits.

The battle between the legislative and judiciary, then, is clearly just beginning. For now the executive is plainly on the legislative’s side. How will this play out remains to be seen.

Back to the streets

Meanwhile, ordinary Brazilians, battered by years of recession and political crises, have been watching the drama unfold in an increasing state of alarm. A spate of recent protests indicates a generalized dissatisfaction with the status quo, but also continued division and polarization among the population.

Violent protests have broken out against Temer’s proposed austerity measures, which would freeze public spending for twenty years in an effort to close the gaping budget deficit left by his predecessor, Dilma Rousseff. In Brasília, cars were burned and a ministry building vandalized by a mish-mash of protesters spanning landless peasants, labor unions, Workers’ Party members and students protesting cuts to education. Other recent protests against austerity in Rio de Janeiro  have been the most violent so far, with police firing rubber bullets against increasingly aggressive protestors.

Meanwhile, the Chamber of Deputies was invaded by protesters demanding military intervention in the government. Representing exactly the opposite viewpoint of the mainly leftist anti-austerity protesters, these people are demanding a replay of what happened in 1963, when a military coup overthrew the government, leading to two decades of a right-wing military dictatorship.

The largest protests by far, as has been the norm in the past few years, were peaceful expressions of support for the sweeping Lava Jato corruption investigations. Last Sunday, thousands of people took to the streets to demand that Congress not interfere with Lava Jato by gutting the 10 anti-corruption measures and passing the “abuse of authority” laws. Their biggest desire? The fall of Renan Calheiros. The fact that the Supreme Court stepped in to save him just a few days later has been extremely demoralizing.

War of attrition

After years of protests and acrimony, Brazilians are exhausted. The country’s corrupt power players are playing on this, trying to fight a war of attrition. They are hoping that people will simply give up, go back to their previously held beliefs that the country’s systemic corruption is simply intractable, that fighting it is useless, that it just has to be accepted, and that the only way to get anything done is to participate in the system.

Brazilians have made so much progress in changing this mentality in recent years. For a time, they genuinely believed that they could change Brazil for the better. It would be tragic for them to lose hope now.

In this regard, there is reason for optimism. In a sharply divided country, almost all Brazilians agree that the investigations must continue. A recent poll found that 96% of Brazilians support the anti-corruption investigations. A recent plea agreement by one of the companies most caught up in the scandal, Odebrecht, will likely implicate many establishment politicians that have managed to avoid trouble thus far. Despite all of Brazil’s problems, it seems that Lava Jato has too much momentum to be stopped.