Safeguarding Democracy and Preventing Polarization in Brazil

On the morning of March 4, at the São Bernardo do Campo residence of former president Luiz Inácio Lula da Silva, Brazilians witnessed a scene worthy of a prime time political thriller. Hundreds of Federal Police officers raided da Silva’s home at sunrise, taking him into custody. Meanwhile, helicopters from the country’s major media corporations circled over the area, reporting that the former head of state would be interrogated regarding his involvement in the corruption scandal engulfing the national oil company Petrobras. Da Silva is suspected of being one of the main beneficiaries of a criminal network that diverted nearly $3 billion from the company’s funds via the distribution of preferential contracts and bribes to businessmen and politicians. To make matters worse, the week after the interrogation the former president was charged for money laundering and the misrepresentation of assets by the court of São Paulo State. The latter charges are connected to a beachfront apartment he frequented, which prosecutors claim was refurbished by a firm involved in the Petrobras scam. In order to prevent da Silva from fleeing the country or using his political leverage to interfere with the proceeding, they are requesting his arrest.

The controversy surrounding the former president of Brazil is the most recent episode in Operação Lava Jato, a federal corruption investigation that began two years ago and has implicated politicians from all the major parties. Among those facing serious charges are 271 of the 594 members of Congress, including the leaders of the lower house and the Senate. The ensuing political crisis has weakened the executive and legislative branches of the Brazilian government while strengthening the judiciary, which has emerged as the sole protector of republican principles in the eyes of the public. Increasingly, the only trustworthy figure in government seems to be Federal Judge Sergio Moro, the director of Lava Jato, who many in the opposition consider a hero.

In every judicial process there are political interests at stake. But those interests do not threaten the fairness of judicial proceedings if the courts enjoy sufficient autonomy, avoid political capture, and are prevented by other branches of government from overstepping their boundaries. In a country like Brazil, however, where both the executive and legislative powers have lost support in favor of the judiciary, there is a serious risk of the courts abusing their power, especially in politically contested cases such as da Silva’s.

 There are a number of reasons why the proceedings against da Silva are particularly vulnerable to political capture, and such interference must be prevented, as their outcome is likely to affect Brazil’s social and political panorama for years to come.

President Dilma Rousseff, da Silva’s former minister and hand-picked successor, is facing a dismal approval rating of 11.4 percent. On top of the federal corruption investigation, which has crippled the governing Worker’s Party, her administration is facing the worst economic crisis in decades. Gross domestic product fell by 3.8 percent last year, and the resulting surge in unemployment has erased some of the welfare gains achieved during the boom years.

In light of yet another scandal — this time, the allegedly illegal use of state bank funds to cover budget gaps — Congress began impeachment proceedings against Rousseff in December. Until now, she has managed to remain in power thanks to a coalition with the Brazilian Democratic Movement Party and to the support of a cohort of smaller parties. Additionally, she has not been charged with corruption, which has allowed her to preserve a certain legitimacy among Brazilians. But all that may be about to change. The president’s campaign strategist was arrested last month on the grounds that he received millions of dollars in illegal offshore accounts, raising questions about the funding for her presidential campaigns. Moreover, a senator from the Worker’s Party reached a plea bargain in which he accused da Silva and Rousseff of obstructing the federal corruption investigations. As a result of these recent developments, Congress may move ahead with the impeachment process or the Electoral Court may revoke Rousseff’s presidential mandate.

 But for Rousseff to fall, so must da Silva. The current president lacks the charisma and popular appeal of her predecessor, who enjoyed an outstanding popularity rate of 80 percent when he left Brasilia after eight years in government. During his tenure, 30 million people gained formal employment and many more benefited from federal assistance programs such as Bolsa Família, which provides conditional cash transfers to poor families. It was thanks to da Silva’s patronage and the carrying on of his project that Rousseff, a virtually unknown politician, was able to win the 2010 and 2014 elections. Hence, parties seeking the president’s departure stand to benefit from tarnishing da Silva’s image because it is so intertwined with hers.

A vicious cycle seems to be unfolding in Brazil: the judiciary has violated regulations and individual rights in an attempt to garner popular support for the case against da Silva, while public sentiment and vested interests have increased the pressure on the courts to convict him.

Considering the political interests at stake in the proceedings against da Silva, the courts ought to adhere strictly to the law and behave with prudency. But the opposite has occurred, with judicial authorities violating individual rights and ignoring legal regulations in what appears to be a crusade to build popular sentiment against da Silva. This behavior has exacerbated social and political polarization in Brazil and jeopardized the very republican principles the courts claim to be defending.

For instance, when Federal Police forces stormed da Silva’s residence on the morning of March 4, forcing him to testify under custody, they exercised a measure known as “coercive conduction.” According to Article 260 of Brazil’s Code of Criminal Procedure, coercive conduction is only justified if the subject of an investigation has refused to give testimony in the past. However, this was not the case with da Silva, who had voluntarily provided testimony before. Yet, Judge Sergio Moro deemed the measure necessary to prevent confrontations between the politician’s supporters and detractors, which were likely to occur if the time and place of his citation were publically announced. The problem with this rationale is that criminal procedures must be based on established norms, not on intuition or personal opinion, and such norms hold every citizen innocent until there is sufficient evidence to the contrary. Moreover, the public response to Da Silva’s captivity was exactly the opposite of what Judge Moro intended, as turmoil broke out in front of the politician’s São Bernardo residence and around the airport where he was being held for questioning.

It is not surprising that a forceful act such as coercive conduction generated public upheaval, especially in conjunction with sensationalist media coverage. Considering the high levels of political tension in Brazil and the controversy surrounding the case against da Silva, the judiciary ought to have acted with more prudency. As political science professor Federico de Almeida argues, if authorities wanted to prevent street confrontations from taking place they should have organized a discreet way of questioning da Silva in cooperation with his defense lawyers. Choosing to execute coercive conduction instead not only increased social tension in the country, but also compromised the fairness of judicial proceedings. When media “surrenders to the temptation of spectacle … it expands the space for passion and constricts the space for juirsprudential rationality regarding the verification of facts and the accusation of suspects on the basis of evidence and of legal parameters.”

Given that street clashes developed in response to da Silva’s three-hour-long captivity on March 4, it was evident that a request for his imprisonment would generate even more severe social and political polarization.

Most countries use pre-trial detention as a measure of last resort, recognizing individual freedom as a basic human right. But Brazilian law allows judges to issue preemptive arrests to protect “public and economic order,” a justification that Mr. Moro has repeatedly invoked to lock up suspects before their trials. The judge’s critics argue that he has misused the measure to extract plea bargains from subjects or to signal the gravity of the charges they face. This use of pre-trial detention violates international conventions that Brazil is a party to and has been condemned by the country’s high courts, which argue that Mr. Moro’s orders are often based on “generic and abstract motives.”

The rationale of the state prosecutors in São Paulo who requested da Silva’s preemptive arrest was similarly problematic. The prosecutors argued that the former president could mobilize his “violent support network” to interfere with their investigation, citing as evidence a video where he can be heard disparaging the proceedings against him in a phone conversation with Rousseff. Among their fears were the possibilities of him either fleeing the country or being assigned a position in government, which would transfer his case to Brazil’s high courts. The latter transpired soon after they issued the request for his arrest. On March 16, president Rousseff made him her chief of staff, in a move that is widely seen as an attempt to prevent his imprisonment. Her decision has exacerbated political polarization, with large protests emerging both in favor and against the government and some members of the Supreme Federal Tribunal who denounce da Silva’s appointment to chief of staff as unconstitutional and others who consider it an exercise of presidential discretion.

There is a possibility that the state court’s request for his arrest, which has proven to be so severely divisive, was motivated by political objectives. The timing of the petition supports this hypothesis: it was issued on the same day political parties convened in Brasilia to discuss the different options for governmental transition and four days before scheduled countrywide protests calling for Rousseff’s impeachment.

A vicious cycle seems to be unfolding in Brazil: the judiciary has violated regulations and individual rights in an attempt to garner popular support for the case against da Silva, while public sentiment and vested interests have increased the pressure on the courts to convict him. All the while, republican principles are being eroded and social and political polarization is growing.

It is important that everyone involved in the Petrobras scandal appears before the courts and that those found guilty of corruption are punished. But this should happen in a way that avoids excessive polarization by respecting individual rights in accordance with the law. Otherwise, the major political achievements of the past decades — Brazil’s increased national unity and stronger democratic institutions — are at risk.

Special thanks to Renan Quinalha for providing input for this article and offering his perspective on the topic. Renan is a Brazilian lawyer and human rights activist from Universidade de São Paulo (USP) and a Visiting Research Fellow at Brown. This piece draws from an article he wrote for the Brazilian magazine Cult about da Silva’s coercive conduction.

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