Exactly one year ago, on October 28th, 2018, Jair Bolsonaro, a right-wing congressman and former army captain, was declared the winner of Brazil’s presidential election after receiving 55.13% of the valid votes. He defeated the center-left-wing Workers’ Party (PT) candidate Fernando Haddad, ending the PT’s streak of four consecutive presidential election victories that had begun in 2002.
Brazil’s corruption problem played a major role in the election and in Bolsonaro’s victory. The Car Wash Operation had not only uncovered widespread corruption scandals during the PT administrations, but that Operation also led to the prosecution and conviction of former President Luiz Inácio “Lula” da Silva, which rendered Lula ineligible to compete in the 2018 election. Moreover, Bolsonaro centered his campaign especially on a vigorous anticorruption discourse, promising to set a new standard of public integrity and to hold corrupt companies and politicians liable for their misconduct (see here and here). To be sure, Bolsonaro did not campaign exclusively on an anticorruption platform. He also positioned himself as the defender of more conservative social values and pledged to take a hardline approach to violent crime and drug trafficking. Yet his anticorruption rhetoric undoubtedly played a key role in his victory.
Even before the election, though, some commentators expressed skepticism that Bolsonaro would undertake genuine efforts to fight corruption and strengthen the institutions needed to promote integrity, and this skeptical view has been echoed by other commentators, both inside and outside of Brazil, during Bolsonaro’s first term (see, for example, here and here).
Now, one year since Bolsonaro’s electoral victory, is a suitable time to analyze the Bolsonaro Administration’s performance so far on anticorruption related issues. Have his substantive accomplishments in this area matched his tough rhetoric?
Before examining the Bolsonaro Administration’s anticorruption record, it’s important to clarify that an assessment of a government leader’s track record in advancing the anticorruption agenda is different from an inquiry into whether that politician is corrupt. These may be related, of course, but they’re not the same. A clean leader may nonetheless prove ineffective, or worse, in fighting corruption, while even a leader who engages in corrupt conduct might still achieve significant pro-integrity reforms. My concern here is assessing the Bolsonaro Administration’s policy record, not in the question whether he is personally corrupt, as there has not been any evidence thus far that President Bolsonaro is personally involved in acts of corruption as defined in the Brazilian Criminal Code.
Let’s start with the positive: The Bolsonaro Administration took some preliminary steps that were viewed favorably by the anticorruption community in Brazil, and helped bolster the popular impression that Bolsonaro would do more to promote government integrity than previous administration. First, Bolsonaro appointed federal judge Sergio Moro, the most renowned figure involved in Operation Car Wash, as Minister of Justice and Public Security (see here and here). He also promised that Moro would be a “super-minister,” who would have broad powers to decide any matters related to that ministry, without presidential direction or interference. Additionally, Bolsonaro fulfilled his campaign promise to appoint a cabinet composed mainly of ministers who do not have a partisan affiliation. This is significant because previous presidents had appointed partisan ministers as a way to build support for the administration in Congress, and this political strategy had been fiercely criticized as a mechanism that facilitates political corruption. Third, Bolsonaro introduced to Congress an extensive anti-crime legislation package, elaborated by Minister Moro, which proposed measures to address the problem of white-collar crimes impunity. Though many have criticized various aspects of the bill, this legislative package, and its anticorruption provisions in particular, appears to be an attempt to meet the public demand for legislative reforms to ensure swifter, surer, and harsher punishment for those engaged in corruption.
However, despite this promising start, the subsequent developments are not so encouraging, and indeed seem more consistent with the skeptics’ predictions that the Bolsonaro Administration’s anticorruption actions would not match its campaign rhetoric. Indeed, two key prosecutors that took part in Operation Car Wash have even alleged publicly that the Executive Branch was in fact taking steps against the investigations (see here and here, in Portuguese). The following list of questionable decisions illustrates these concerns:
- First, Bolsonaro’s government has resisted transparency in the public administration. A presidential decree signed by the Vice President changed the regulation of the Access to Information Law, expanding the number of public officials who could classify official information with the highest degree of confidentiality. Consequently, the Chamber of Deputies had to initiate the approval of a legislative decree to suspend that presidential decree, which led the executive branch later to reconsider the measure. The Bolsonaro Administration has also followed its predecessors’ practice of imposing secrecy on the president’s travel expenses abroad, despite journalist’s official demands to access this data.
- Second, the Bolsonaro Administration restructured the Financial Activities Board Control (known by its acronym in Portuguese COAF), a financial intelligence unit responsible for investigating suspicious activities concerning money laundering. COAF was responsible for many politically sensitive investigations, not only concerning Operation Car Wash, but also regarding, for example, the suspicious financial operations of many assessors of representatives and former Rio de Janeiro State legislative assembly representatives, which included Bolsonaro’s elder son. One of the most criticized changes is the fact that COAF no longer has to be composed only of stable career civil servants, thus allowing political nominations.
- Third, there have been presidential attempts to directly interfere in the Federal Police, a department that was fundamental for the success of Car Wash investigations and hierarchically linked to Sergio Moro’s Ministry, in order to announce substitutions of regional chiefs of the entity. Such interference in the Federal Police not only created internal embarrassment in that investigative bureau, which has traditionally enjoyed a certain degree of autonomy, but also signaled that Moro’s “super-minister” powers were in fact very limited.
- Fourth, President Bolsonaro broke with longstanding practice by appointing a Prosecutor General who was not on the list of three candidates drawn up by the country’s federal prosecutors. (The Prosecutor General is the head of the Federal Public Prosecutor’s Office, is personally responsible for representing the Prosecutor’s Office before the Supreme Court, and is the only officer who can criminally prosecute the president and his ministers.) While not illegal or unconstitutional—under the Brazilian Constitution, the President is free to appoint any federal prosecutor over age 35 as Prosecutor General, so long as the appointment is confirmed by the Senate—there had been a practice since 2001 that the Federal Prosecutors’ National Association would hold an internal election and submit to the President a shortlist composed with the three names that received the most votes, and the President would choose one of these three. The purpose of this practice is to reduce the risk of political influence over the Public Prosecutor’s Office, which is an independent body and is supposed to be apolitical. Yet Bolsonaro disregarded the shortlist and opted instead to appoint a Prosecutor General who he believed would be more ideologically aligned with his government. This was the first time since 2003 that a President had ignored the prosecutors’ suggestion by not appointing a name from the shortlist.
Brazil’s recent anticorruption achievements were all obtained through the collaboration of stable and permanent public officials, who received sufficient resources and independence in their entities to perform their tasks properly. It’s hard to reconcile Bolsonaro’s promise to usher in new standards of public integrity in Brazil with the fact that he appears to be directly interfering with the most relevant public administration control bodies. If he is serious about his pledge to fight corruption, he should endow such bodies with greater autonomy and independence, even (indeed, especially) when they are investigating his own administration.
With three years left for Bolsonaro Administration, there is still time for the president to prove that his tough anticorruption talk wasn’t just campaign rhetoric. However, if Bolsonaro Administration fails to make a clear commitment to good public governance practices and to strengthening oversight bodies, it risks becoming another example of government that uses anticorruption discourse for electoral purposes but never delivers all the promised results.
The most promising anticorruption measure taken by the Bolsonaro Administration is the anti-crime legislation package sent to Congress. However, in the legislative branch the proposal has been modified with the intention of excluding some of its main ideas, like the punishment after conviction by appellate courts and the expansion of negotiated settlements for criminal cases. If the bill is undermined this way, it will be difficult to see a meaningful contribution of the government to counter corruption in Brazil.
Anyway, in my opinion the Brazilian Supreme Court appears to be the principal obstacle to anticorruption efforts in the country, especially after some of the court’s latest decisions in Car Wash Operation, such as those related to the jurisdiction of electoral courts over corruption and money laundering crimes connected to elections, as well as those concerning the nullification of convictions for non-compliance with a supposed order of closing arguments. Besides, the damages caused by the Brazilian Supreme Court to the fight against corruption can be even greater, considering other relevant questions in the court’s docket, like the challenge to the investigative use of reports directly sent by the Financial Intelligence Unit to law enforcement authorities. In this context, perhaps the most hopeful and useful anticorruption attitude of President Bolsonaro will be the nomination of two justices during his presidential term, in 2020 and 2022. Those two appointments can shift the court’s position and make it more favorable to combating corruption.
The difficulty I have with your suggestion that Bolsonaro’s most “hopeful and useful” anticorruption movements would be Supreme Court nominations is that this does not seem to address Victor’s four concerns. And Victor’s concerns, as I understand, speak directly to the absence of a clear commitment by the government to actually move forward with a strong anticorruption agenda. We could draw a parallel here with the nomination of the Prosecutor General. If Bolsonaro was unable to choose a Prosecutor General within the institution’s three-candidate list – even in times where the Federal Public Prosecutor’s office official agenda was/is focused on combating corruption – one should beg the question of what are the motives and reasoning behind the president’s nominations (and government acts in general). Maybe we could have a hint of an answer if we look to the president’s failed attempt to nominate his own son as ambassador in the U.S. – an act in itself problematic from an anticorruption (or more broadly, form a republican) perspective. Finally, centering the debate on the Supreme Federal Court seems to neglect that there are dozens of hundreds of agencies, government office and public and private players in charge of advancing the anticorruption agenda (especially in the Executive branch, but also elsewhere). Even if the Supreme Federal Court is a relevant and strong player in this sense, it is difficult for me to imagine that it can stand alone as the one obstacle between a corrupt and an honest administration/government.
An interesting article, but perhaps its scope was too narrow, limiting itself to measures adopted by Bolsonaro exclusively within the Executive branch, when actually the major setbacks recently suffered regarding Brazil’s anticorruption agenda have come mostly from the Legislative and Judicial branches of government (but with Bolsonaro’s approval or complicity).
In this regard, there were three major setbacks listed by the OECD Working Group on Bribery (see https://www.oecd.org/corruption/law-enforcement-capacity-in-brazil-to-investigate-and-prosecute-foreign-bribery-seriously-threatened-says-oecd-working-group-on-bribery.htm and in Portuguese, https://www.bbc.com/portuguese/brasil-50174618):
1) Probably the most significant setback was the President of the Supreme Court’s injunction to halt all investigations and criminal proceedings in the country based on reports by the Financial Intelligence Unit (COAF) and by tax authorities, when shared without prior judicial authorisation (see https://voices.transparency.org/the-role-of-financial-intelligence-units-and-the-fight-against-corruption-in-brazil-e745f1c8e749). Such extrajudicial sharing of information is standard international practice, and was until then explicitly allowed under Brazil’s anti-money laundering law. Such order was requested by Bolsonaro’s son, who is under investigation for misappropriation of his aide’s salaries in the Rio de Janeiro state Legislative. Bolsonaro has publicly praised the Supreme Court’s decision, and was reportedly upset when Sergio Moro met with the President of the Supreme Court to ask for reconsideration (according to reports, he said: “if you can’t help, please don’t hinder” – see in Portuguese https://oglobo.globo.com/brasil/pedido-de-moro-para-toffoli-revogar-decisao-sobre-coaf-irritou-bolsonaro-23900747). Besides, when COAF’s President (a Sergio Moro ally) publicly criticized the Supreme Court’s decision, Bolsonaro demanded his replacement. The changes in COAF’s structure (mentioned as the second item in the post) were most likely a compromise solution, allowing Bolsonaro to remove COAF’s President while saving face and not demoralizing Sergio Moro.
2) Another setback was a Supreme Court’s decision halting the investigation of “politically exposed persons” by tax authorities, and suspending tax auditors involved in the investigation (briefly mentioned in https://voices.transparency.org/threats-against-anti-corruption-framework-in-brazil-multiply-d6c4acfbfd4c). The origins of this particular decision can’t be traced to Bolsonaro, as it was a quite obviously self-serving ruling, given than the two Supreme Court justices were implicated in such tax investigation. However, the Federal government apparently has not moved to defend the tax agency’s investigation or its auditors, suggesting a pact for non-agression with the Supreme Court justices.
3) Finally, the Legislative branch approved a law against “abuse of authority”, including vague and broad definitions that – in the terms used by the OECD Working Group on Bribery – “could serve as a mechanism for corrupt individuals to unfairly attack justice-seeking prosecutors and judges for appropriately doing their jobs and have a significant chilling effect on anti-corruption prosecutions and investigations in Brazil and beyond” (https://www.oecd.org/brazil/abuse-of-authority-provisions-adopted-by-the-senate-raise-concerns-over-brazil-s-capacity-to-ensure-independence-of-prosecutors-and-judges-in-fighting-corruption.htm). The law was approved under a “fast track” legislative procedure, thanks to support by Bolsonaro’s political party; and despite Bolsonaro’s veto of several provisions, such vetoes were overruled with the votes of his political supporters in Congress. Therefore, it seems unlikely that Bolsonaro has put actual political pressure on his allies to reject such law.
Ironically, opinion polls have indicated that – in the public’s perception – the area in which Bolsonaro’s government is best evaluated is the fight against corruption (in Portuguese – https://cnt.org.br/agencia-cnt/governo-destaca-combate-corrupcao-seguranca-dificuldades-saude-meio-ambiente). This contradiction is probably due to the enduring popularity of Sergio Moro, who has remained a loyal aide to Bolsonaro despite such setbacks.
Thank you very much for your comment and important additions. However, just to clarify, the purpose of the post was not to discuss all recent anticorruption setbacks in Brazil, but to analyze, without speculating, Bolsonaro’s Administration direct performance so far on anticorruption related issues. If I intended to comment on all anticorruption setbacks in Brazil, I would certainly have to include, for example, some significant “Lava Jato” constitutional defeats in the Supreme Court. Could the Executive Branch have used its political power to prevent such defeats? We will never know.
I agree with your view that the Supreme Court’s injunction you mentioned was probably one of the most most significant anticorruption setbacks. Nonetheless, the injunction was decided in an appeal (RE n. 1,055,941), in which the Court intends to make an abstract decision on the possibility of sharing financial data with the Public Prosecutor’s Office without judicial authorization. The Federal Government is not even a party in the legal proceeding. The injunction might have pleased the Federal Government, but given the independence and strength of the Supreme Court, it was probably not imposed by it. Concerning Sergio Moro’s alleged dissatisfaction, what we objectively know is that he remains in the cabinet and he is still publicly supporting President Bolsonaro.
Regarding the law against “abuse of authority”, it is a well-known fact in Brazil that Bolsonaro is in dispute even with his own political party. He relies on the political ability of the Speaker of the House of Representatives to pass important government laws, such as the recent social security reform. The Bolsonaro Administration has never been able to organize a solid political support in the National Congress. Additionally, the Legislative Power appears to have its own political agenda. In Brazil we used to consider in political analyses the Legislative Power as a subordinate to the Executive branch, but this no longer seems to be the case. Moreover, many congressmen might have personal interests in passing the law against “abuse of authority”. Having said that, I have sincere doubts to what extent a decision of the Legislative Branch could or should be attributed to Bolsonaro’s lack of political will to reject a law.
This is a really interesting post, and I learned a lot from it. I’m curious about the appointment of the Prosecutor General, and the degree to which this should be seen as a harbinger of corruption. While I can certainly see the cause for concern in appointing an apparent ideological ally to the post that can prosecute the president, I am curious if the appointed individual shares Bolsonaro’s anti-corruption stance. Is there any evidence to suggest this person is less interested in prosecuting corruption overall than the other prosecutors nominated? In addition, does the President retain the ability to fire the Prosecutor General at will? It seems that the ability to fire (perhaps even more than the choice to appoint) is the key power that will determine if the president has undue sway over the Prosecutor General’s conduct in office and if he can strongarm the Prosecutor General into complying with his will.
Thank you for your thought-provoking questions. The Prosecutor General is appointed for a two-year term. He can’t be fired during his mandate. Thus, you are totally right. After the appointment, the Prosecutor General could act independently of the President’s will. The only consequence would be that, after the end of his first mandate, he certainly wouldn’t be nominated for another term. Some critics claim that the new Prosecutor General is not the most experienced prosecutor in anticorruption investigations and that he has made dubious statements about Operation Car Wash. However, according to Bolsonaro, he is committed to anticorruption related issues as any other federal prosecutor and was nominated for other reasons, such as his more conservative view of the world and his moderate opinion on environmental issues. As he was appointed about a month ago, it is still too early to analyse his performance in the office.
It is enough that the analysers and the reseachers are mostly confused of the Brazilian administrative anticorruption fight that is just suspicious and concocted. And it is the global feature of anticorruption motivation only.
Why it is derailed?
I’m trying to do a college job in which I chose to talk about my president but how difficult it has been. First finding the truth in foreign articles has not been easy. Many lies or partial truths told and published in newspapers. This is not true. President Jair Bolsonaro was not only popular for giving money to the people during the pandemic and that is all I found. He is now respected by all Brazilians because he did not negotiate the government as all past presidents did. In the past, only people were placed in the government that was closed with corruption in the government, it was more or less an exchange of favors that was expensive for Brazilians. He also defends a family and religion that brought many people close to him, in addition to the simplicity and sincerity he has. So stop saying that it is only because of the help he has given because it is not true. The population supported him long before that. It is regrettable that in Brazil everything is manipulated even the research that evaluates the government. Even though I live here in the USA, I manage to follow politics in Brazil by my family and I am from the northeast, a poor region that has been helped a lot by the president.