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Brazilian Judiciary Loses Its First Battle in The War Against Corruption

For the first time in Brazilian history, criminal charges have been brought against a sitting President. Chief Prosecutor Rodrigo Janot presented charges of passive corruption against President Michel Temer to the Supreme Court. On Wednesday, August 2nd, Congress voted against charging Temer until the end of his presidency. While the implications of this result are unclear, there are several likely negative consequences. It might tip the scale of checks and balances away from the judiciary causing a greater rift between Brazilian citizens and politicians.

Image Courtesy of Wikimedia Commons, © 2016
Michel Temer

President Temer was charged after recordings of conversations of him with the CEO of JBS, one of the world’s largest food processing companies, surfaced. Temer appears to incentivize the JBS executives to continue bribing federal judges and politicians.

According to the Brazilian Constitution, if a criminal charge is brought against a sitting president it must first be presented to the Supreme Court. The Supreme Court then passes the charges to the Speaker of the House. The Speaker moves the charges to the House’s Commission of Justice and Constitution. Regardless of a for or against vote by the Commission, charges then pass to the House floor. Members of Congress are then tasked with deciding whether to accept the criminal charges, thus beginning criminal investigations against the president.

On August 2nd, less than the required 2/3 majority voted to open investigations. As a result, President Temer will remain in power. While not popular among voters, the outcome was not surprising given Temer’s congressional support.

One potential impact of the decision is that the judiciary branch may become more apathetic in the future. Its prosecutors and members may think that as long as a sitting president has support on the House floor, the severity of charges brought against him will not matter. The vote sets a dangerous precedent that might affect the relations between the three branches of power. The judiciary branch saw its work subverted to politics on August 2nd. Janot was confident enough of the evidence he had collected to present a charge against a sitting president, only to see it rejected for political reasons. The executive and the legislative successfully defeated the judiciary.

Another potential long-term impact of this vote is an increase in the dissatisfaction with the political class. Brazilians are disillusioned with politics. Temer has the lowest ever approval rating for a Brazilian President at 7%. The only public institution Brazilians trust is the judiciary. Political alliances, however, may have affected the judiciary’s decision during the August 2nd vote. This apparent undermining of the judiciary in favor of politics will not help appease the Brazilian population.

This is especially significant as the sense of impunity politicians have carried in Brazil throughout history is beginning to change. Former President Fernando Collor, for example, was impeached in 1992 due to corruption charges and is now a sitting Senator. Operation Car Wash has spurred this transformation. Politicians and high-ranking executives are starting to be charged and prosecuted for their crimes. Former President Lula, for example, was recently sentenced to 9 and a half years in prison. The vote on August 2nd sends a message that certain politicians and government posts are above the law.

Others argue the process displayed the strength of Brazilian democracy and its system of checks and balances. Constitutional rule prevailed. The Speaker of the House, a Temer ally, did not seek any maneuvers that could potentially benefit the president. Furthermore, the vote on the House floor should take into account the political situation, given that those voting are politicians and not lawyers.

Analysts in support of the vote process fail to see the potential historical effects of this vote. Subjugating the judiciary to the whims of those trying to stay in power is detrimental to Brazil. The purpose of the vote was to begin investigations; it is not a sentencing of Temer. Other than politics, there are no reasons to avoid investigations.

It is undeniable that the vote against corruption charges will have important ramifications for Brazil both in the short and long-term. Popular opinion is sure to back the judiciary in any further battles with the legislative or the executive. The most popular branch of government is also the one that appeared weakest in this latest vote. It remains to be seen how the judiciary will respond. It is said to be working on two more charges against the president in light of new evidence. In the interest of Brazilian democracy, the legislative should vote on future charges based on merit not politics.


Pedro Jardim

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