Brazil’s ‘trial of the century’

Rio de Janeiro, Brazil – Political corruption is widely recognised as one of humanity’s great ills. But people tend to pay less attention to impunity, freedom from punishment for the powerful. Impunity is both the cause and symptom of bad government, eroding confidence in the justice system and public authority, leading to civic cynicism, anomie, and contempt for the rule of law.

Brazil, a nation marked by a legacy of impunity, has a historic opportunity to put itself on an upward political trajectory. The Supreme Court has just entered its third week of hearings on the biggest corruption trial in the country’s recent history: the Mensalão, literally translated as the “big monthly payment”. The case in question centres around 38 defendants, including former President Luiz Inácio Lula da Silva’s Chief of Staff, José Dirceu, who is alleged to have laundered and then disbursed millions in public and private money to secure votes for legislation in the National Congress from 2003 to 2005.

The case is of such great importance that Brazil’s powerful Public Defender (the Ministério Público) has established a website to explain the trial to children. The resource should prove equally valuable for adults: the background and proceedings of the Mensalão are so byzantine that most of my fellow political scientists and legal scholars have long ceased to pay attention to the details.

Grave political crimes were committed, and the upcoming judgment will mark a point of inflection in the development of the country’s political culture. A positive outcome would begin to harmonise the justice system with President Dilma Rousseff’s efforts to purge and modernise Brazil’s Executive Branch.

During the first two years of her term, Rousseff has put into effect a powerful new freedom of information law, created a governmental data portal, and has begun to modernise the country’s world-renowned Transparency Portals, in which governmental entities are obligated to post expenses within a 24-hour period. Rousseff has also purged her cabinet, booting six ministers on allegations of corruption since she took office. Perhaps most symbolic of the changes underway, Rousseff volunteered Brazil to serve as co-chair of the Open Government Partnership, and presided over the establishment of a Truth Commission to deal with abuses perpetrated during the 1964-85 dictatorship.

These new initiatives represent significant progress, but what is most needed are deep reforms to institutions that allow malfeasant public officials to operate with impunity.

Brazil’s new democracy evolved in the shadow of a powerful military dictatorship that exercised significant control over the transition from authoritarianism. This is why – even in spite of the new Truth Commission – an amnesty law from 1979 still protects torturers and their respective military commanders. Impunity extends even to those who tortured Brazil’s current president, who stripped a young Dilma Rousseff naked, applied electric currents to her body, and haemorrhaged her uterus.

Traditions of impunity carried over to Brazil’s vibrant electoral democracy. High-level corruption in politics is rarely prosecuted, mainly because top officials are rarely subject to final court decisions. As Brazilian specialist Professor Matthew Taylor of American University has found, more than 700 officials enjoy exclusive procedural benefits, referred to as foro privilegiado or “special standing”. Instead of first being tried in lower courts, officials with special standing must be judged in one of Brazil’s top two courts, the Supreme Federal Court (STF) or the Supreme Court of Justice (STJ). These courts typically judge final appeals and cases of jurisdictional or constitutional import, and are ill-equipped as criminal courts. Moreover, special standing implies lengthy procedural privileges for defendants. A case in point is the Mensalão trial, which includes 600 depositions, more than 60,000 pages of testimony, and has taken more than 2,600 days to prosecute.

The Folha de São Paulo calculates that of Brazil’s 10 most important political corruption scandals over the past 20 years, approximately 6 per cent of nearly 850 defendants ended up with a conviction, and only one per cent of defendants received final convictions after exhausting the appeals process. As Taylor points out, most officials charged with corruption run out the clock: they use procedural manoeuvring until their trials reach the statute of limitations. Indeed, numerous minor charges levied against the Mensalão‘s 38 defendants have already expired.

The result is a national embarrassment: widespread impunity. The presence of prosperous, corrupt politicians across the Brazilian political landscape communicates to citizens that corruption pays dividends. Take former President Fernando Collor, for instance. Even though he resigned shortly before being impeached for grand corruption in 1992, Collor now holds the powerful Chair of the Senate Committee on Foreign Relations and National Defense. Criminal charges against the ex-president have led to naught.

A more extreme example is the two-time mayor of São Paulo, supporter of the military regime, and candidate to the presidency, Paulo Maluf. Now 80 years old, Maluf is wanted by Interpol for international money laundering, and the Federal Prosecutor in Brazil has confirmed that the politician has nearly half a billion dollars stowed away in Swiss bank accounts. Finally condemned in 2005 for crimes committed in the mid 1980s, Maluf spent one month in jail before the Supreme Court of Justice let him out on grounds of “poor health”. Two years later, the portly politician was elected to the national Congress as a Representative of São Paulo, a position which he continues to hold. Most recently, former President Lula da Silva forged a formal alliance with Maluf in order to bolster the government’s partisan alliance for the mayoralty of São Paulo.

While widely condemned by the Brazilian public, impunity is nonetheless expected. A survey by the Folha de São Paulo‘s DataFolha this week shows that 73 per cent of Brazilians believe Mensalão defendants should go to prison, even though only 11 per cent of those questioned expect punishment. Legal experts agree that avengers who long for the vicarious satisfaction of stiff prison sentences are likely to be disappointed.

President Lula da Silva, who stands directly in the trial’s line of fire, appointed six of the 11 Supreme Court Justices hearing the case. Lula has not remained idle while letting justice runs its course. At time of writing he had paid visits to five justices in 2012, including the judge delegated to be the official reviewer, Justice Ricardo Lewandowski. Not surprisingly, Lewandowski expressed his desire to see the case abrogated on technical grounds right at the beginning of the trial.

Clearly, it is not just the 38 accused of the Mensalão who stand trial, but Brazil’s justice system, and a young nation’s commitment to procedural democracy and accountability.

Gregory Michener is Assistant Professor of political science and administration at the Fundaçao Getúlio Vargas (EBAPE) in Rio de Janeiro.