Brazil in Focus

Brazil's Supreme Court takes on corruption, sort of

by Matthew Taylor
Brazilians have been anxiously watching their country's high court's deliberations over one of the most significant corruption scandals in nearly thirty years of democratic rule. Seven years ago, President Luis Inácio Lula da Silva's administration was shaken to its core by allegations of illegal payments to coalition partners. Members of the government admitted to the payments, but chalked them up to nothing more than the repayment of campaign debts. This too would be a crime, far less serious than bribing members of Congress, but nonetheless severe enough to force the resignations of Lula's chief of staff and leading coalition members. The nation's highest court, the Supreme Federal Tribunal, is now completing deliberations over the fate of these politicians and their alleged conspirators.

Although Brazilians are fascinated to see leading political figures in the crosshairs of the famously reticent court, the panel's final decision is unlikely to completely satisfy anyone. Admirers of Lula's Workers' Party see the entire scandal - dubbed the mensalão - as a conspiracy of a conservative press, intent on sullying the reputation of the first working class president of post-military Brazil. Nor are opponents of the Workers' Party likely to be satisfied, given that the maximum sentences for most of the crimes under scrutiny are short, and winning parole is easy.

So why are judges, lawyers and the press increasingly trumpeting the success of the trial? Enthusiasts highlight the fact that never before have so many leading politicians been brought to justice. Some make this argument to defend the performance of the judiciary, while many are looking to score points against Lula and his party. Still others cheer the process because they are looking for a tidy storyline.

Whatever the reasons, this triumphalism is misplaced. Indeed, the mensalão trial is an important cautionary tale about Brazil's rise to world prominence. Brazil's byzantine judicial system is a significant impediment to development, and its failings aggravate corruption, stifle business, and threaten human rights. The court system is delay-ridden and exasperatingly formalistic, structured in ways that serve and benefit elites and their lawyers. Regardless of what sentences the high court eventually imposes, it is hard not to be appalled by how long it has taken to resolve a case that broke in 2005, during Lula's first term. Although it started in the high court, and thus cannot be appealed, the mensalão case already has lasted more than seven times longer than a famously equivalent case, also involving a presidential chief of staff: the US Watergate case. And this is not even one of Brazil's longest trials.

Some of the delays in Brazilian courts emerge from the laudable protections implemented to safeguard human rights in the aftermath of the authoritarian regime. Just one example: extraordinary habeas corpus laws created to shield against violations of basic freedoms. Far more damaging, however, is the longstanding elitist legal code in Brazil which graces officials with perks and privileges, such as the one forbidding bringing suit against politicians in all but the highest courts.

The results have been perverse, generating an exaggerated deference to elected politicians, not to mention a significant degree of impunity. The first politician to be convicted in the Supreme Federal Tribunal was sentenced in 2010, a quarter century after Brazil's return to democracy. Politicians such as Paulo Maluf - a former governor indicted by the Manhattan District Attorney's office and currently on Interpol's watch list - have used the country's laggardly justice system to their advantage, blitzing the courts with appeals and procedural delays to avoid conviction. One state governor, who famously shot his predecessor in broad daylight in a crowded restaurant, played out his case in the high court for 14 years, then resigned from office before sentencing - so causing his case to start all over again in common trial court. Like many defendants and plaintiffs, he died before the courts could reach a definitive verdict in his case.

The judicial reform implemented by President Lula in 2004 failed to address the question of accountability for corruption or the special protections given to political elites. Given that corruption is estimated to cost at least 2% of GDP annually - roughly six times the amount spent each year on Brazil's lauded Bolsa Família cash redistribution program - the lack of attention to the dysfunctional court system is disturbing.

Yes, Brazil's economy has managed to prosper despite the chronic misuse of government funds. And the fact that the high court is weighing in on the mensalão at all illustrates how much accountability has improved since the country's return to democracy. But the intense media focus on the duel inside the courtroom obscures a larger point: the mensalão is the exception that proves the rule. Corruption's costs to the poor and emerging middle class are a major impediment to achieving Brazil's enormous potential, and the courts' failure to address this scourge represents a troubling challenge to a country aspiring to the global stage.

Matthew Taylor teaches at the School of International Service, at American University, in Washington, D.C. He is the author of Judging Policy: Courts and Policy Reform in Democratic Brazil (Stanford, 2008), and editor, with Timothy Power, of Corruption and Democracy in Brazil: The Struggle for Accountability (University of Notre Dame, 2011).