Brazilian Prosecutors: Crossing the Line?

By Fabio Kerche*

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PSB Nacional 40 / Flickr / Creative Commons

Brazil’s Federal Prosecutors – treated as heroes by parts of Brazilian society and the mainstream press – have become so powerful and aggressive that they face growing allegations of violating some civil and political rights. The Lava Jato (Car Wash) investigation that helped bring down President Dilma Rousseff is not the first time that prosecutors have been in the spotlight; they are often easier to find in newspapers political section than among crime news. For instance, during the 1990s State Prosecutors sued hundreds of mayors and became protagonists in the Mensalão, a campaign finance scandal during the administration of President Lula da Silva. But their activities have never been as intense as recently, leading to the unprecedented “judicialization” of politics, a term that political scientists use to refer to over-reliance on the judicial system to mediate policy debates and political disputes.

The roots of prosecutors’ extraordinary power are in the 1988 Constitution, which assured their autonomy and gave them extensive civil and criminal tools with which to act. At the same time, lawmakers created few processes to ensure prosecutor accountability, making them autonomous even in relation to the Procurador-Geral da República, who is supposed to be the chief Federal Prosecutor but cannot provide effective oversight under current law. After passing the pre-employment examination, prosecutors cannot be fired or demoted. They are an army of 10,000 who are entirely independent of politicians and society. Unlike in the United States, where the President can dismiss a U.S. Attorney and electors can vote out a District Attorney, Brazil lacks analogous mechanisms for ensuring prosecutors’ professionalism.

Two innovations during the Partido dos Trabalhadores (PT) governments of Presidents Lula and Dilma fed the powers that now try to devour them.

  • While nominating Chief Prosecutors for their two-year terms, they essentially waived their right to choose by going with the candidates with the most support from their own agency colleagues, at times based on institutional interests (such as wages) rather than professional integrity and vision. Not only did this weaken the influence of the incumbent President; it opened the way for leading prosecutors friendly with past administrations to become relentless pursuers of PT leaders. Dilma also approved legislation expanding prosecutors’ authority to offer plea bargains, reducing suspects’ sentences in exchange for information about accomplices and their bosses. Prosecutors and the judge responsible for Lava Jato have been constantly ordering arrests of officials, whose only ticket out of prison is to turn over information. Yet, since potential snitches cannot receive credit for reporting cases and names that have already been provided by others, this process has created a voracious accusation market and a deluge of new “facts” and new names, particularly including PT leaders. Suspects are condemned by public opinion, creating a true cycle that feeds on itself.

A survey released last week by Vox Populi and Brazil’s largest trade union federation, the Central Única dos Trabalhadores (CUT), shows that 43 percent of Brazilians think prosecutors are “fair” and treat all politicians equally. But an almost equal number – 41 percent – claim prosecutors persecute politicians from the PT and do not act against politicians from its principal adversary, the PSDB. With Brazilian society split over the Brazilian Prosecutors Office’s integrity, the lack of any instrument for punishing or rewarding prosecutors is particularly problematic. Brazilian citizens have few political and legal tools to wield against prosecutors whom they believe abuse power. When institutions fail and do not shape behavior, personal and political agendas become paramount. This is not a good democratic model, even when prosecutors are supposedly fighting against corruption. It opens the door to political witch hunts and erodes popular confidence in democracy and its institutions.

October 27, 2016

 

* Fabio Kerche is a CLALS Research Fellow and Researcher at Casa de Rui Barbosa Foundation, Rio de Janeiro.

Brazil: Not-so-Happy New Year

By Matthew Taylor*

Brazil Basta

Photo Credit: Antonio Thomás Koenigkam Oliveira / Flickr / Creative Commons

A vicious combination of corruption scandal and economic malaise suggests a troubled new year awaits Brazil.  Economists estimate gross domestic product has contracted 3 percent this year and will decline a similar amount in 2016, while inflation and weak government finances hamper efforts to stimulate growth.  Two of three big rating agencies have cut Brazilian debt from investment grade to junk. Unemployment has risen from under 7 percent a year ago to nearly 10 percent, with forecasts of 12 percent on the horizon.  Efforts to reform fiscal policy are getting nowhere, and the champion of fiscal reform, Finance Minister Joaquim Levy, has just resigned.  The bonanza launched by the 2003-2010 presidency of Lula da Silva – seemingly setting Brazil on a unique path of state capitalist development – is long over.

The country’s interconnected scandals cast shadows on many of the leading players on the national stage, including President Dilma Rousseff.

  • Petrobras, the crown jewel of Brazil’s state capitalist model, is at the center of allegedly massive corruption schemes. Rousseff, who was chair of the Petrobras board at the time of the alleged wrongdoing, has claimed absolute ignorance.  But the charges implicate Brazil’s leading political and business elites, many of whom have been jailed in recent months.
  • A feud between Dilma and the president of the Chamber of Deputies, Eduardo Cunha, reached a new low this month after Cunha’s approval of impeachment proceedings against her. (His own ethics problems continue to fester.)  The charge against Dilma is not of personal corruption but rather that Rousseff flouted budget laws by using public banks to cover up unauthorized debt issuance and off-books spending.  Rousseff supporters have argued that the impeachment charges represent the worst of golpismo, or coup-mongering, and a constitutional overreach that threatens to undermine democracy.

For Brazil, 2016 will be dramatic and unpredictable – as the country weathers the most dangerous political crisis since the impeachment and resignation of President Fernando Collor in 1992.  Dilma’s opponents will have difficulty convincing two-thirds of the Chamber and Senate to oust her, but the crisis is already creating significant fissures in the democratic system.  The parties have been turned upside down.  Even if Dilma survives in office, she faces nearly impossible odds in restoring the credibility of her administration and party, the Partido dos Trabalhadores, or PT.  There are early indications that the PT will face a bloodletting in the 2016 municipal elections, and former President Lula, the party’s once-ironclad standard-bearer, has the highest rejection rate (55 percent) of any potential candidate in the 2018 presidential contest.  The PMDB, Dilma’s coalition partner, is threatening to break with the government, but is internally divided. The opposition PSDB is facing scandals, protests, and troubles of its own in the states it governs.  The newfound proactivity of prosecutors and judges is making democratic checks and balances work as never before – and is largely welcomed by Brazilians – but Brazil’s old party system may not be able to keep pace.  Rumblings for a rethinking of the political system will grow louder in the new year, as the crisis deepens.

December 21, 2015

*Matthew M. Taylor is associate professor at the School of International Service at American University.

Venezuela: Implications of the Opposition’s Landslide Victory

By Michael McCarthy*

Venezuela Elections 2015

Photo Credits: Nicolas Raymond and 2 dvx ve (modified) / Flickr and Wikimedia Commons, respectively / Creative Commons

Venezuela is just beginning to feel the shock waves of the opposition’s landslide victory and humbling defeat of President Nicolás Maduro’s PSUV.  Riding a wave of discontent with the Maduro government’s management of the economy and political repression, the opposition Mesa de Unidad (MUD) coalition won at least 112 seats in the 167-seat parliament, giving it a commanding two-thirds majority.  The MUD won the popular vote 56-41.  The political scenarios are wide open.  Some preliminary analytical judgments follow:

  • Maduro has accepted the election results, but serious questions remain whether he and his advisors will engage in the give-and-take necessary to make divided government work. He is restructuring his cabinet and has called on supporters to “relaunch” the Bolivarian Revolution.  He says he will strenuously oppose any amnesty law for imprisoned opposition members – a top MUD priority – and that he will “go to combat” if the opposition tries to remove him from office.
  • Despite its historic achievement, the opposition will face challenges to build sustainable unity. The MUD is a heterogeneous electoral alliance, and the hardline and moderate factions are likely to disagree about strategy – whether the time is ripe for pressing for Maduro’s resignation or for cultivating support from disaffected chavistas.
    • The opposition faces the challenge of demonstrating a commitment to what they have criticized most about chavismo – democratic inclusion.  If they want to put Venezuela back together, for example, the MUD will have to decide how to provide PSUV officials guarantees of political inclusion.
    • Passing an amnesty law for political prisoners and addressing the dire economic situation are high on the MUD’s unified agenda – and probably will remain part of a consensus platform.
    • Less clear is how aggressively the opposition will push its agenda from the National Assembly.  Most in the MUD are more closely aligned with the moderate strategy of former presidential candidate Henrique Capriles, but others will want to push harder.  They may try to remove chavista-appointed Supreme Court judges likely to oppose Constitutional changes that would curtail Maduro’s powers.
    • The forced resignation of Guatemalan President Pérez Molina and the recent opening of an impeachment process against Brazilian President Dilma Rousseff may embolden similar initiatives in Venezuela.
  • The country’s tarnished election system functioned better than many critics had predicted. The 74 percent voter turnout was eight points higher than the last legislative elections.  Reports of violence and irregularities were few.  The Armed Forces provided effective security at the polls, and behaved in a manner that suggests an interest in defending their institutional reputation.  The National Electoral Council (CNE) disappointed many by issuing an unprecedented call for voting centers to remain open even if there were no voters in line, and for delaying reporting the final results, but the voting process was clean enough.
  • Outside Venezuela, chavismo’s loss may be a setback from some leftists – but a relief for most others. Maduro’s defeat is a potential liberation from the albatross that the disastrous Venezuelan regime has become.  For most left-leaning leaders, chavismo had become a deeply flawed project that has, for several years, been toxic.
  • For anti-chavistas outside Venezuela (including some in Washington), the election results indicate that the way to overcome the catastrophe over which Maduro presided was not to threaten the regime with sanctions and encourage extremists in the opposition, but instead to push for the election to take place, with the most safeguards possible. There is precedent for Latin American dictatorships falling in elections that they put on the agenda and then could not stop.
  • Although Maduro’s saber-rattling along the Colombian and Guyanese borders failed to divert attention from his internal mess, his rhetoric of resistance to yielding power suggests the international community should keep an eye on him in case he tries again.
  • The Venezuelan victors should also understand the anxiety of their neighbors over the future of Petrocaribe and other initiatives. Venezuela under Chavez did an enormous service to the region by subsidizing oil in ways that helping governments achieve important social advances.  Long before Chavez, Venezuela used its oil wealth to support allies.  Such assistance is as important now as it has been for decades.

December 9, 2015

* Michael McCarthy is a Research Fellow with the Center for Latin American and Latino Studies.

Brazil-U.S.: Implications of Postponed State Visit

By Luciano Melo

Picture2The postponement of Brazilian President Dilma Rousseff’s state visit to Washington was officially cast as the consequence of the lack of a good explanation for the National Security Agency’s cyber-espionage targeting her, the cabinet, Petrobras (the national oil company), and others.  Although the Brazilian Foreign Ministry issued a letter stating that both countries agreed to the postponement, Dilma’s remarks at the UN General Assembly on September 25 about NSA’s activities were so harsh that it was clear that frustration with the Americans’ widespread spying on Brazilians remains extremely high in Brasilia.

Experts agree that economically the postponement and bilateral tensions hurt the United States more than Brazil.  Contracts worth billions of dollars between Boeing and the Brazilian air force (FAB) are at stake, as are agreements that would favor cooperation in oil exploration and development of biofuels and others that would facilitate the transfer of “sensitive technologies.”  For Brazil, on the other hand, the postponement jeopardizes progress in talks to allow Brazilian citizens to enter the United States without visas – a project long-desired by Brazilians that was on the agenda for the state visit. Some observers in Brazil also speculate that, with the overall Brazilian economic slowdown, Dilma may actually prefer to have Brazilians spending their reais at home, not in the United States.

In a tactical sense, Dilma may have feared that Edward Snowden will leak more damaging information during her visit to the U.S., causing her even greater embarrassment at home and abroad.  In this way, fear and self-protection certainly played a role in her decision. On the other hand, the Brazilian president almost certainly saw domestic political advantages in a good old fight between the Brazilian David and the American Goliath.  She is desperately in need of boosting her popularity after the demonstrations against corruption in the country.  In fact, opinion polls show that public approval of her leadership increased from 45 to 54 percent just since the NSA dustup.

In strategic terms, the postponement fits Brazil’s strategy for claiming its position as a global player – and expressing unhappiness when it feels frustrated.  Dilma already had told President Obama in 2011 that Brazilians would seek a “more balanced relationship” with the United States. The postponement, like the speech at the UN, clearly reflects Brazilians’ desire to be treated better by the United States.  Obama’s speech at the General Assembly the same day, on the other hand, was interpreted by many Brazilians as emphasizing the United States’ traditional role as world policeman – not as the respectful neighbor in a new, multi-polar world order.  In this battle of self-images, Brazil sees itself as one of the global leaders, while the United States sees itself as the mighty one, considering only the European powers as full equals.  The broad base of Brazilians that Dilma is reaching out to is not “anti-American” in sentiment, and indeed wants a robust and respectful U.S.-Brazil relationship.  That is in the interest of both countries, but for this shared objective to be achieved, Washington will need to recalibrate its responses to Brazilian concerns.

Luciano Melo is a PhD candidate in the Department of Government at American University.