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Brazil: the dummies’ guide to the constitutional crisis


Latest version: 23 March 2016 (LAB will attempt to update this article as new events and discoveries clarify the background to this fast-moving drama)

Rio, March 18th. Brazil is in crisis: impeachment proceedings are pending against President Dilma Rousseff. A vast corruption scandal has engulfed Petrobras and the country’s largest construction companies. Prominent officials and members of Congress from both the ruling PT party and all the main opposition parties are implicated. The judiciary is divided, with some judges making highly political and perhaps inflammatory statements. It seems that few, if any, politicians have clean hands, and almost no-one is impartial. Huge numbers of people are taking to the streets to support impeachment or to support the President and her party, the PT. There seems to be no mechanism for resolving the crisis.

How has it come to this pass? We offer this quick guide to the structures, the players and the main issues.

1. The Judiciary and the Executive.

The main institutions of the Brazilian legal system are the judges and the Ministério Público.

Judges preside over the course of a case, examine arguments of prosecutors and defence, pass judgement and sentence. They are organized in a corporate body as a separate profession with its own entrance examination. They preside over the whole course of a case, sometimes in teams, receive the evidence for and against, sit in judgement and pass sentence.

The Ministério Público is a nationwide apparatus of lawyers maintained by the state who are empowered to take up any issue of public interest (like the pollution caused by the recent mining accident in the state of Minas Gerais), and also act as state prosecutors. Like judges they enjoy high prestige, high salaries and generous benefits, total security of tenure and a very high level of autonomy with respect to the executive branch and even to one another. The head of the Ministério Público is the Procurador Geral da República who is appointed by the President from a short list produced by the Ministério’s own self-governing professional body.

Unlike in other countries, it is not uncommon for judges to make public statements on controversial issues, and as the enquiries into the various corruption scandals have advanced so they have become more daring. This week, for example, the judge who is coordinating the various enquiries related to the plunder of Brazil’s biggest corporation, Petrobras, released tapes of private conversations between Lula and Dilma which had taken place within the previous two days: when criticised the reply was that in a democracy the public was entitled to know what people in those positions were doing. In the British or American system, or indeed in the European system, this would be unthinkable until the case came to trial. (Lula has still not been indicted.)

Furthermore, the contents of these conversations, during which Lula made some pretty rude remarks about the Supreme Court as well as about almost everybody else, were the subject of indignant and highly politicised remarks by a Supreme Court judge in a session of the court today. (He spoke of them, without naming Lula, as reflecting an autocratic mentality among other things, and these comments, couched in flowery rhetoric, were broadcast.) The judge in the Federal District of Brasilia who today halted the installation of Lula as a government Minister has also made highly political comments (for example on Facebook) in the past about the scandal. His decision was confirmed by the selfsame Supreme Court judge who issued a temporary injunction pending a decision by the full court.

The president is now returning the favour: in the aborted ceremony today she attacked the judge coordinating the case (though not of course by name) and said he was conducting a conspiracy against her and violating the Constitution. Meanwhile Lula is conducting government business from São Paulo because he cannot take office in Brasilia. His job is to restore sufficient alliances in Congress to prevent the impeachment from proceeding.

The uncertainty of the Brazilian judicial system is due in part to the absence of the notion of precedent which is so central to Anglo-Saxon (common law) legal systems. Very few decisions of any court, even of the Supreme Court, are strictly speaking binding on lower courts.

2. Immunity

Brazil’s kilometric 1988 Constitution was drawn up by, with and for politicians: at the time voices were raised to contest the doubling-up of roles with Congress as both legislature and Constituent Assembly and now I can see why. So among their innumerable privileges is immunity from prosecution unless by the express authority of the Supreme Court – and this applies to all Deputies, Senators and Ministers. This is why so many people saw the appointment of Lula to a Ministerial position this week as a device to at least delay his indictment.

3. The cases

Operation Lava Jato. ‘Oh, steady there, here are more names appearing…’ (the initials are of various Brazilian parties, both PT, coalition partners and opposition). Cartoon by Que Mário?

Lava Jato: The whole business started with the denunciation by a Petrobras insider (a top manager, no less) of a veritable system of kickbacks designed to fund the Workers’ Party (PT), to line the pockets of Petrobras executives and various intermediaries and to inflate the profitability of construction contracts. There was the suspicious purchase of a refinery in California (the ‘Pasadena’) and its sale at a massive loss a year or two later; there was rigged bidding for construction contracts in which the country’s biggest contractors divided up the spoils; and there were straightforward kickbacks for contracts. The sums involved are indeed startling and they forced Petrobras to delay its annual statement of accounts in 2015, narrowly averting a default on its massive borrowings in international markets. According to the magazine Epoca (said to be the preferred medium for leaks from the prosecutors) the prosecutors hope to recover R$14.9 billion (c. US$ 4 billion in today’s devalued reais – but the real -pronounced ‘ray-al’ -was worth much more at the time). This is the ‘Lava Jato’ racket.

Brazil's Supreme Federal Court -- may be required to rule if Lula's cabinet status is confirmed. Photo: WikimediaThe case against Lula is a minor one in financial terms: whether a building or part of a building he uses and which was renovated by and at the expense of Brazil’s biggest construction company (Oderbrecht) is in fact being held for him by third person ‘straw men’. But the prosecutorsand the police may suspect that it forms part of the kickback system in the Petrobras case. Meanwhile, Oderbrecht’s chief executive, Marcelo Oderbrecht, is already serving a 19-year jail sentence for corruption.

The Mensalão:, this was a big scandal relating to Lula’s first government (2003-2007): in that case the leaders of the PT were found to have run a racket extorting payments from contractors (especially to the Post Office) and used it to fund monthly payments to members of Congress from small parties to support their programme and smooth its way through the legislative process. As a result Lula’s two most important associates were removed and Dilma was the last one standing: that is how, despite her relative political inexperience, she became his protégée. Lula always said he knew nothing and at that time the people believed him.     

According once again to the magazine Epoca, 38 people are in jail as a result of these cases, which is extraordinary in the light of the usually lethargic pace of Brazilian justice. 1,114 cases have been pursued.

4.         Impeachment

The current case for impeachment rests on the charge that Dilma’s government finessed public accounts in order to show a better performance than the reality – but, as you can see, this is a technical issue not an impeachable offence in normal circumstances. But impeachment is of course a political process not a legal one, in which proof votes take precedence over proof and the circumstances are not normal.

There are also charges of illegal campaign financing in the 2014 elections which are currently being considered by the Election Tribunal. If the Tribunal finds against Dilma then both she and the Vice-president (who has declared himself in the opposition against her) would be removed. (Of course, it is unlikely that they would be the only offenders on this score.)

The process: Impeachment requires 342 out of 513 Deputies (two thirds) to set the trial in motion: the trial then takes places in the Senate which must agree by a simple majority to proceed. However, to confirm the impeachment and remove the President requires approval by two thirds of the 81 Senators.

Recent precedent: the last time this happened was not so long ago, in 1992, when President Collor was forced out: he resigned just before the process began. But in his case the country was united against him and the issues were almost entirely related to corruption. Note however, that Collor returned to political life and is now a Senator and … is being investigated for corruption in relation to the Petrobras affair.

As you can see, the removal of Collor does not seems to have discouraged the plunder of the state. This time, however, the underlying divisions are ideological and the substance of the case is flimsy – this is not the Petrobras case.

With so many uncertainties, it is hard to predict what will happen. If street demonstrations turn violent, or the authorities or police (not the same thing) repress them, that could add another dangerous ingredient to the stew. The PT may come to rue its past timidity in failing to confront and attempt to resolve the deep-running problems in the structure of Brazil’s body politic. With all the main parties so tainted, even new elections will not necessarily resolve matters.

5. Lula’s legal situation

The big issue for Lula is whether he will be investigated by the judge overseeing the Lava Jato cases, Sergio Moro, or by the Supreme Court. This in turn depends on whether the Supreme Court confirms his appointment as a Minister. And that in turn depends on whether the Court takes the view that his appointment was a device to get him out of the hands of Moro or a genuine ministerial appointment. (Readers will recall that ministers can only be judged by the Supreme Court.)

This may seem strange: after all it is not normally the job of judges to rule on the motivations of a ministerial appointment; they might rule on its propriety (if for example bribes were involved), but that is not the issue here.Once again we see that Brazilian judiciary behaves differently from others. 

So far two judges of the Supreme Court have handed down temporary injunctions against the appointment: eventually the court as a whole will rule. Lula  must be worried.

In other developments the Council of Brazilian Bar Association (0AB) which oversees legal education and certification, so it is a statutory body, has voted overwhelmingly in support of the impeachment of the President. Although some may be surprised by such a move, they should recall that back in the 1970s the OAB campaigned vigorously for the end of the military government.

In contrast various lawyers’ associations, which are simply professional interest groups, have expressed their opposition to impeachment.

In this instance judges are not being called upon to rule on the legality of judge Moro’s action, but rather their attention is being drawn to the use of a device to circumvent his authority. While some people see the sequence of events as a grandiose plot by right-wing judges to destabilise the government, others may see them as a corporate closing of ranks in the face of this defiance of judge Moro’s authority. Not to speak of the rude words unfortunately publicised from tapped phone conversations.

The 1988 Constitution was designed, among other things, to ensure the paramountcy of the law over the government. But now we see that the power of the judiciary has acquired a dynamic of its own.





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