Early last month, Brazilian Minister of Justice Sergio Moro (a former judge best known for his role in the so-called Car Wash corruption cases) introduced an extensive anti-crime legislation package. The package includes many measures, including some related to things like violent crime, but it notably includes five measures that are especially relevant to Brazil’s fight against corruption. What are these proposed changes, and what would their implications be?
Right-wing populist Jair Bolsonaro was inaugurated President of Brazil on January 1, 2019. As a candidate, Bolsonaro promised that his regime would break with the large-scale graft of Brazil’s former leaders and would ruthlessly pursue the corrupt and bring them to justice. At the end of January, Justice Minister Sergio Moro released, with much fanfare and press attention, a sweeping anti-crime legislation package that addresses both white collar crime and violent organized crime, and that incorporates some, though not all, of the anticorruption measures proposed by Transparency International. So does this mean that the Bolsonaro Administration is following through on its promise to make the fight against corruption a major priority, and to end the culture of impunity that has shielded Brazilian political elites?
Alas, no. While the anti-crime package (and other high-profile pieces of legislation, like tax reform) have been highlighted by the administration and attracted most of the media attention, less prominent yet equally consequential pieces of legislation related to corruption are being passed with little to no warning or public debate. Here are two examples of major events that have occurred within the first month of the regime that should give anticorruption scholars and the international community pause in their evaluation of the Bolsonaro government’s fight against corruption:
Much has already been written, on this blog and elsewhere, about the what the election of Jair Bolsonaro as President of Brazil means for the future of the anticorruption agenda in that country. (See, for example, here and here.) Bolsonaro’s appeal rested in part on the Brazilian electorate’s disgust with the entrenched corruption of the Brazilian political elite in all the major parties. Bolsonaro promised a rejection of “old politics,” positioning himself both as a “disruptive” figure and as someone who would and could “get tough” on corruption—a new sheriff in town, as it were, who would put the bad guys behind bars.
Yet fighting corruption is not just about “toughness” or making fiery speeches or enforcing laws (though strong enforcement is certainly necessary). In a country like Brazil—a complicated multiparty democracy desperately in need of significant institutional reform—an effective anticorruption agenda requires the President and his senior ministers not only, or even primarily, to be the merciless watchdogs cracking down on wrongdoing, but rather the country’s political leaders need to take the lead in articulating a coherent vision, mobilizing and coordinating with multiple stakeholders both in and out of government, and negotiating with other power centers in order to ensure not only the independence and cohesion of law enforcement efforts, but also to promote the necessary legal and institutional reforms. Promoting public integrity requires a broader set of skills, ones that have unfortunately become associated with “old politics” in a negative way: building coalitions, negotiating with different interest groups, and coordinating multiple stakeholders.
There are at least three sorts of coordination, engagement, and negotiation that Brazil’s new president must undertake if his purported commitment to fighting corruption is to yield results:
Today’s guest post is from Professor Michael Freitas Mohallem (head of the Center for Justice and Society at Fundação Getulio Vargas (FGV) in Rio de Janeiro, Brazil), Bruno Brandão (Director of Transparency International, Brazil), and Guilherme France (a researcher at FGV).
Transparency International’s Brazilian chapter, together with scholars at FGV’s Rio and Sao Paolo law schools, are leading a wide-ranging effort, with input from multiple sectors of Brazilian society, to develop a package of legislative, institutional, and administrative reforms—the “New Measures Against Corruption”—that will address the systemic causes of corruption and offer long-term solutions. The project, which was developed over approximately 18 months in 2017 and 2018, was prompted by two related developments. First, so-called Car Wash (Lava Jato) operation has uncovered one of the biggest corruption scandals in modern times, implicating hundreds of politicians, civil servants, and business leaders. Second, although the Lava Jato operation led to a proposal, spearheaded by some of the Lava Jato prosecutors themselves, for “Ten Measures Against Corruption,” which was endorsed by over 2 million people, that effort was stymied by the National Congress. So, despite the success of Lava Jato in exposing and punishing corruption, Brazil has not yet developed the necessary long-term reforms to address the underlying sources of the problem.
The New Measures Against Corruption are intended to provide a path forward for Brazil, setting out a bold reform agenda that addresses issues relating to prevention, detection, and prosecution of corruption. The New Measures consist of a package composed of 70 anticorruption measures—ranging from draft federal bills, proposed constitutional amendments, and administrative resolutions—in 12 categories:
- Systems, councils and anticorruption Guidelines;
- Social accountability and participation;
- Prevention of corruption;
- Anticorruption measures for elections and political parties;
- Public servant accountability;
- Public servant investiture and independence;
- Improvements in internal and external control;
- Anticorruption measures for the private sector;
- Improvements in criminal persecution;
- Improvements in the fight against administrative improbity;
- Tools for asset recovery.
The complete report on all 70 proposals (which runs 626 pages, and so far is only available in Portuguese) is here. Further discussion of the specific proposals would be welcome, both from domestic and international commentators, and we hope that at some point soon we will be able to provide summaries and translations of all of the measures. But in the remainder of this post, we want to offer some more background on the process that we used to develop the New Measures, as well as the prospects going forward for pushing the government to adopt these reforms. Continue reading
The biggest anticorruption-related news to come out of Brazil since the election of the far-right Jair Bolsonaro as Brazil’s next president has been the announcement that President-Elect Bolsonaro has tapped Judge Sergio Moro—the federal judge who oversaw the trials of several high profile Brazilian politicians in the Car Wash (Lava Jato) operation, including former President Lula Inácio de Silva—to be the next Minister of Justice. Some are hopeful that Judge Moro, who has emerged as an anticorruption hero to many Brazilians, will be well-positioned to use this new high-level post to push forward with systemic anticorruption reforms, including the “New Measures Against Corruption” championed by Transparency International and other civil society activists. Others, including Professor Stephenson in a recent post on this blog, worry that Judge Moro’s acceptance of this position would be a step backward for Brazil’s struggle against corruption, because his appointment could further politicize not only the Lava Jato trials, but the entire country. While President-Elect Bolsonaro wants to portray his appointment of Judge Moro as the first step toward making good on Bolsonaro’s promise to make anticorruption a priority of his administration, this appointment could be seen by centrists or the left as adding insult to injury by giving more power to the man who put Lula behind bars.
If Judge Moro accepts the appointment, then, he will be in a difficult and delicate position. He will have the power to influence the anticorruption agenda (assuming Bolsonaro follows through on his promise to give Moro autonomy in deciding how to deal with organized crime and corruption), but he needs to be sensitive to the fact that his very appointment risks entrenching the view in some quarters that the anticorruption agenda is really a politically-motivated conspiracy against left-wing politicians. There are four things Judge Moro can and should do in his new position to minimize this risk: Continue reading
Two weeks ago, far-right candidate Jair Bolsonaro was elected President of Brazil. Likely no single factor explains Bolsonaro’s success, but as I noted in a previous post, disgust at the corruption of the Worker’s Party (the PT), which had been exposed by the so-called Car Wash (Lava Jato) investigation, likely played a significant part. The Lava Jato operation has brought to light shocking levels of corruption, mainly though not exclusively at Brazil’s state-owned oil company Petrobras, and has led to the convictions of scores of businesspeople and politicians. Some of the key figures involved in the Lava Jato operation, including prosecutor Deltan Dallagnol and Judge Sergio Moro, have become national heroes, at least in some quarters. But their popularity is by no means universal. The fact that Lava Jato has investigated and convicted so many PT politicians, including former President Luiz Inacio Lula da Silva (known as Lula), has led some PT members and sympathizers to accuse the investigators, prosecutors, and judges involved in the Lava Jato operation as engaged in a politically-motivated right-wing conspiracy against Lula, the PT, and the left generally. On this account, Lula is a “political prisoner,” and the impeachment and removal of his successor, President Dilma Rousseff, was a “coup.”
Many people, me included, have pushed back hard against the notion that the Lava Jato operation is a politically-motivated conspiracy. The evidence that has come too light seems incontrovertible, and while critics have identified a number of questionable decisions by the prosecutors and judges (criticisms I’m not in a position to evaluate on the merits), the notion that it’s all a politically motivated sham are baseless. Overall my impression, shared by many other domestic and international observers, is that the Lava Jato operation has been conducted with great professionalism. Yes, it’s true that the operation has targeted many PT figures, but Lava Jato has gone after politicians from across the political spectrum, and if PT politicians seem to make up a disproportionate share, this is most likely because the PT had held the presidency from 2003 to 2016, first under Lula and then under Dilma. Furthermore, many of us in the international community, along with a number of Brazilian anticorruption scholars and activists, worried that these unsubstantiated attacks on the integrity of Lava Jato—attacks that go beyond challenging individual decisions or rulings—would do serious damage to the longer-term development of an effective set of institutional checks and balances in Brazil. One doesn’t need to subscribe to a naïve view that prosecutors and judges are entirely “neutral” to recognize the importance of developing institutions of justice that are not, and are not perceived as, partisan or “political” in the crude sense.
It’s in that context that I was so disheartened to learn last week that Judge Moro had accepted President-Elect Bolsonaro’s appointment to serve as Minister for Justice. I have no reason to doubt Judge Moro’s integrity or to believe that he accepted this job for any reason other than because he believes it will give him an opportunity to serve his country. But I nonetheless fear that it was a mistake, one that will set back Brazil’s ongoing efforts to develop more robust anticorruption institutions. Continue reading
My post last week expressed some dismay at the political situation in Brazil, and the role that understandable disgust at widespread corruption in the left-wing Worker’s Party (PT), which controlled the presidency from 2003 to 2016, seems to be playing in contributing to the astonishing electoral success of far-right candidate Jair Bolsonaro. Bolsonaro—whose extremist views, history of bigotry, violent rhetoric, and admiration for autocrats has led some to label him, with justification, as a quasi-fascist—was the top vote-getter in the first round of Brazilian’s two-round presidential election system, and he is favored to win the run-off against PT candidate Fernando Haddad on October 28. Though I’m no expert on Brazil or its politics, this situation—voter revulsion at the corruption of the mainstream parties leading to the rise of a tough-talking extremist—is distressingly familiar. It’s a pattern we’ve seen play out in several countries now, usually with quite unfortunate consequences. So, much as I believe that corruption is a serious problem, and tend to support aggressive anticorruption efforts—including the so-called Car Wash (Lava Jato) investigations in Brazil—I used my last post to express my dismay that anticorruption sentiments might propel someone like Bolsonaro to victory. Some things, I argued, are more important than corruption.
The post seems to have touched a nerve—I’ve gotten far more feedback on that post (some in the public comments section, some in private communications) than anything else I’ve written in the four and half years I’ve been blogging about corruption. While some of the comments have been the sort of substance-free invective one gets used to on the internet, a lot of people have provided useful, thoughtful, constructive criticism and pushback of various kinds. So I thought that perhaps it would be worth doing another post on this general topic, and connecting my thoughts about the current Brazilian political situation to some more general themes or problems that those of us who work on anticorruption need to confront, whether or not we have any particular interest in Brazil. Continue reading