The crisis provoked by the actions taken against ex-President Lula by the federal police and São Paulo Public Prosecutor’s office earlier in the month is continuing to escalate. Yesterday Federal Judge Sérgio Moro, in charge of the Lava-Jato (Operation Carwash) cases, made public the transcripts of wire taps of phone conversations between President Dilma and Lula made by the federal police. These have been reported in detail this morning by newspapers notorious for their antagonism to the current government. This dramatic and unprecedented move has, possibly not accidentally, deflected attention from the fact that the losing candidate in the 2014 Presidential elections and current president of the opposition PSDB, Aécio Neves, was also named in the extensive range of denunciations made under a plea-bargaining agreement by Delcídio Amaral, former PT spokesperson in the Senate, arrested and gaoled in 2015 but currently at liberty again. All these recent developments fit a pattern that many defenders of democratic institutions and the rule of law are finding increasingly disturbing.
Admirers of Sérgio Moro praise him for taking an unflinching stance on corruption and impunity. He has condemned and gaoled leading Brazilian businessmen, most recently Marcelo Odebrecht, head of Brazil’s largest construction company (founded here in Salvador, Bahia, in 1944), an enterprise of international importance. Marcelo Odebrecht received a sentence of nineteen years in gaol, although this will probably end up being reduced to something far less onerous. Leading politicians have also been arrested. Those now serving time in relation to Lava Jato already include leading PT figures such as João Vaccari Neto, a trade union leader who was the PT’s treasurer. Vaccari got 15 years.
What is going on at the moment seems to be focused not only on implicating Lula and even President Dilma herself in personal wrongdoing, but on convincing the public that the President herself has attempted to impede the pursuit of justice through the Lava Jato investigation. Although the case for her impeachment has other dimensions, including charges relating to election campaign finance, it has proved difficult to demonstrate any wrongdoing on her part in relation to the scandals surrounding Petrobras that are at the heart of Lava Jato. A cynic might note that the values of the properties allegedly acquired without disclosure and as the result of company favours that might constitute money-laundering by ex-President Lula would remain comparatively modest in comparison with those owned by former British prime-minister Tony Blair and his wife and children, estimated to be worth twenty-seven million pounds sterling. Although Blair’s remuneration for consultancy services and lectures, and his use of his position as a far from effective Middle East peacemaker for personal economic gain, have been subject to some criticism on ethical grounds, nobody has seriously suggested that he should be subject to police investigation, let alone preemptive incarceration. To understand the logic of what is happening to Lula (and not happening to Blair) we need to dig more deeply. But first we need to think a little more about why it is important to remember that the charges brought against Lula are allegations and not proven facts, whether there is any truth to them or not.
Although foreign commentators, such as journalists of the Financial Times, treat Judge Moro’s actions in pursuing the Lava Jato investigations as evidence of the robustness of Brazilian institutions, this conclusion needs to be examined critically. Brazilian justice is not totally blind: some judges are in the pockets of landowners who use violence against peasants and indigenous people with relative impunity in consequence, for example. The separation of powers should be respected, but not all embodiments of judicial power merit respect. Some members of the judicial branch have themselves been involved in webs of political corruption and acts of individual corruption. In saying this, I absolutely do not intend to cast any doubt by insinuation on the personal probity of Judge Moro, let alone disparage the memory of a judge such as Patricia Acioli, murdered in 2011 for her determination to expose and punish wrongdoing by members of the military police of Rio de Janeiro. Judges can indeed be heroes. But they can also be venal and enjoy a high degree of impunity. Readers not familiar with Brazil may be surprised to learn that the federal judge in charge of the case arising from the collapse of Eike Batista’s business empire in 2015 was simply forced into early retirement after he was found to have helped himself to Batista’s Porsche and other confiscated assets, not exactly a very heavy punishment for what was apparently not his first offence of this kind. And although they are not problems of this kind, Judge Moro’s way of administering justice does create serious problems in its own right, which are compounded by the kind of public support that he has been receiving from some fellow judges.
Problem number one is his habit, manifest once again in yesterday’s events, of leaking information immediately to a largely hostile press, which can be guaranteed to treat anything that might not stand up as definitive evidence in a properly conducted judicial process as if it were fact, and to put the worst possible interpretation, from the point of the PT, on anything that is simply ambiguous. Leaking of information by either judges or the police that would be protected by sub judice rules of procedure in many countries is a very serious matter if one really does believe in the rule of law.
A second problem that arises from the relationship between the judiciary and the media is that the mainstream press and Globo television network in Brazil have repeatedly been accused of bias in reporting in two senses. Firstly the media have been accused of minimising scandals that implicate politicians of opposition parties, especially former president Fernando Henrique Cardoso and Aécio Neves, and focusing on those that involve the PT. It is not that they never report anything about these figures (and there is certainly much that is less than edifying to report in the case of these and other leading tucano politicians). It is simply that the reports rapidly disappear from public view and are not subject to the same depth of follow-up. Secondly, the mainstream media have been accused of giving disproportionate coverage and air time to the case against the PT in relation to the point of view of the accused and their supporters. Click here for a detailed analysis from the magazine Carta Capital of the biases of Rede Globo in the coverage of the operation against ex-President Lula (in Portuguese).
Problem number three with Sérgio Moro’s strategy, which he claims is inspired by the “Clean Hands” anti-corruption operation by judges in Italy, and which led to the destruction of established political parties but is, ironically, considered a failure by some Italian academics, is its reliance on evidence acquired by delação premiada. In a process that has become so intensely politicised, there is a serious danger that a witness who agrees to aid the investigation in return for a lightened sentence for his or her own admitted wrong-doing, will say what he or she thinks the prosecutors want to hear. The value of evidence extracted on this basis is also diminished severely when its content is made public before a legal process has provided the accused a chance to challenge it and mount a defence. At the very least, the kind of publicity that the allegations received in the mass media prejudice the chances of the accused receiving a fair trial. But worse, what we are seeing in Brazil is how the selective application of what might be described as “lawfare” is promoting a climate of popular disillusion in which a democratically elected government can be removed from power. The fact that Brazil is sliding into deepening recession is clearly reinforcing dissatisfaction with Dilma Rousseff’s administration, but that administration’s ability to tackle economic problems is clearly being impeded by the political crisis that Lava Jato has created. Lava Jato has recovered quite a lot of public money, but the damage that it has done done to major construction companies at a time when much-needed infrastructure projects would help maintain economic activity is something of a downside.
It is certainly no accident that the latest moves are targeted at Lula, still a potential presidential candidate in 2018, and, increasingly, at Dilma herself. A major problem faced by the President’s political enemies is that her administrations have done far more to attack the corruption that has long been at the heart of Brazilian political life than any previous governments, even when this meant punishing misconduct by leading figures in the PT itself, as was the case in the mensalão scandal. This is why we are suddenly seeing a focus on efforts to try to prove that Dilma has attempted to block the progress of the Lava Jato investigations: up to this point the fact that the investigations were taking place and the PT was taking the hits aided the President’s survival, even if that fact reinforced the growing alienation between the President and her party created by the direction of her economic policies, which has also attracted strong critiques from social movements that previously provided support to the PT, in particular the MST (Movement of Landless Workers). Even the mainstream press cannot totally ignore the fact that the sins of PT politicians are also typical of their opponents, but the questions that alternative media keep posing all highlight the extent to which past sins by others enjoyed impunity and even now seem to keep disappearing from the spotlight.
The scale of the anti-government demonstrations throughout Brazil last weekend should not be exaggerated but they were significant, not least because the demonstrators manifested some repudiation of opposition politicians as well as the parties in the existing government coalition. PSDB leaders were booed in São Paulo and a leading regional figure from the right-wing DEMs received the same treatment in Salvador. So there is naturally some speculation about where all this might end. If the present government falls, will there be a smooth transition, or growing polarisation and violence on the streets? Will new political forces emerge as a result of this crisis? If so, what will they look like? It is extremely unlikely that those Brazilians who feel nostalgia for the military dictatorship will find their fantasies fulfilled, but citizens of the United States and Europe are already seeing how ultra right-wing populism and intolerance thrives on crisis. Brazil’s crisis has particular features, but the broader global outlook is hardly positive, for reasons that are structural rather than simply conjunctural. Neoliberal “austerity” fixes are manifesting exhaustion, while the enormous social disruptions posed by the combination of advances in robotics and artificial intelligence with climate change makes it imperative to rethink many of the assumptions of the political left. If the PSDB opposition in Brazil does eventually manage to come to power as a result of the impeachment of Dilma, it is not clear that it offers Brazilians much that would be different, let alone better, from what they already have in terms of economic and social policies. But to the extent to which governments formed from the present opposition hand over more national resources to foreign corporations, accept even higher rates of unemployment, reverse past improvements in real wages, and dismantle Brazil’s improved welfare state and anti-poverty programs, they could certainly prove a lot worse. This is what may ultimately be at stake in what increasing looks like an attempt to eliminate the PT from the political landscape.
So how should we interpret this deepening crisis? Many of us see what is happening as a threat to democracy that also undermines rather than strengthens the rule of law. Pablo Gentili, the executive secretary of CLACSO (the Latin American Council of Social Sciences), issued a statement on March 4 describing the initial moves against Lula in the following terms (full text available in Portuguese and Spanish here):
Today, in Brazil, another step has been taken in the process of institutional destabilisation which a sector of the Judicial Power, Federal Police, press monopolies and forces defeated in the last national elections have been attempting to perpetrate. It is a destabilisation of the democratic order that has as its principal objective: to prevent progressive forces from continuing to govern the country, and put a definitive end to the Workers’ Party and its most emblematic figure, ex-president Lula.
So this is basically a slow motion coup d’état. This interpretation is denied by analysts who argue that Lava Jato is not just about the PT and that personal corruption is unacceptable even if its perpetrators have other virtues (such as advancing the cause of social justice). But in my opinion, yesterday’s actions by Judge Moro greatly strength the case that the methods being used to bring the administration of Dilma Rousseff to an end deserve the label “golpista”. They undermine democracy and take short-cuts with the advancement of the rule of law that are likely to undermine rather than strengthen institutionality and, at the end of the day, the universal right to receive just treatment that everyone deserves, whatever they have done. But what is truly worrying is that it is increasingly difficult to know where all this risk taking will lead in the longer term. It is already gravely undermining sociability, even within politically divided families.
What is happening in Brazil today can and should be seen as part of a wide process of undermining alternatives to neoliberal capitalism. Although Lula and Dilma were once quite explicitly identified in the United States as the “acceptable” or “moderate” face of the alternatives characterised as Latin America’s “Pink Tide”, this apparent tolerance was always limited: foreign policies that clash with North Atlantic imperial geopolitics and measures that complicate the business interests of US-based transnationals are never going to win real approval. But Brazil’s political crisis has largely been engineered from within. Its elites would prefer not to have a PT government, have more or less been on strike for the last few years when it comes to investment in the country (although they have invested abroad, including in the UK), and are as willing as ever to collaborate with foreign interests to their own mutual advantage and the grave disadvantage of the Brazilian people. As has long been apparent, social mobility for working class people is not viewed kindly by many middle class Brazilians, so the machinations of powerful economic interests opposed to the PT have been able to pander to the worst aspects of class prejudice (all too often tinged with racial prejudice as well). Those whose politics are motivated by resentment are a minority, but they are a vociferous one and their tendency to shout loudly and bang pots in protest against the government makes them very useful contributors to a slow coup process organised through sophisticated media machines.
The PT’s enemies are perfectly justified in saying that all personal corruption is unacceptable and that some figures in the PT have shown themselves to be corrupt in a self-serving sense by any definition of a term that I and many other academics have attempted to unpack in more analytical terms over the years. The kind of “corruption” associated with the mensalão was in part personal, as in the case of ex-minister José Dirceu, like Dilma an active opponent of the dictatorship, who was arrested again last year as a consequence of Lava Jato. But it was also systemic, related to managing the political process and making a country like Brazil “governable in practice” by the PT. Lula’s relationship with political notables with dark reputations, such as ex-president José Sarney, who actually supported his campaign in 2002, might be described as pragmatic and realistic, means and compromises justified by ends. But the PT’s failure to embrace structural political reform may well be considered with hindsight to have been its greatest historical failure. Nevertheless, as a party of the Centre-Left obliged by the structure of the Brazilian political system to govern in coalition, principally with the more centrist PMDB, the PT’s record on social policy brought Brazil a good deal of credit internationally. Even if it was heavily dependent on a fragile expansion of credit-based consumption, real social mobility resumed after a long period of absence, and many new jobs with formal contracts and access to social security were created at a time when many other Latin American countries were content to let the informal economy fill the sustainable livelihood deficits created by the growing inequality neoliberal economic policies provoked. This achievement deserves to be recognised and defended. The argument that it does not excuse other failures and vices is valid, but not in the sense that it justifies the conclusion that all the elements of the political class are the same and that it does not matter which coalition is in power. As I pointed out in an earlier post, the present congress is both extremely reactionary in terms of social issues, ranging from land reform and indigenous rights to questions of abortion and homophobia, and utterly irresponsible, as exemplified by its eagerness to weaken gun control in a society ravaged by everyday violence. Dilma Rousseff’s track record of resistance to this reaction and irresponsibility is not as strong as many would like it to be, but another president might be even less willing to use the veto in the face of the powerful social and religious forces that support the conservatism of what has become a congress of lobbyists as a result of issues of campaign financing that, once again, go far beyond the specific case of the PT.
Dilma Rousseff has been criticised for personal weakness as a leader and inability to handle the political demands of the crisis, but she has also been attacked for the kinds of policies she has favoured. Even from within the ranks of her own party, she has never enjoyed total support, but she is now accused by some of having abandoned her election pledges completely, and of surrendering to the dictates of the (international financial) “markets”. By bringing Lula back into government as chief of staff (minister of the Casa Civil, replacing the very loyal former governor of Bahia, Jacques Wagner, who now becomes head of the President’s cabinet), she may succeed in reuniting the PT around her government. But it is a risky strategy. Lula’s taking office as a minister should make it impossible for Judge Moro to continue investigating the former president, since cabinet ministers can only be tried by the Supreme Court. Yet although Dilma was able to carry out his ceremony of investiture, one of the leaked tapped phone conversations has been interpreted by some as proof that the ex-President and the incumbent were conspiring together to provide him with impunity, and a judge issued an injunction to suspend his taking office. This judge subsequently admitted that he voted for Aécio Neves in the 2014 elections, after visitors to his Facebook page discovered that it documented his personal participation in anti-Dilma protests.
Even if these problems caused by the increasingly evident politicisation of the Brazilian justice system can be overcome, the move to make Lula a minister can also be presented as a failed President accepting defeat in turning to her mentor for support. If Lula is now seen as the “real” president, this may be positive for some, but it will probably further undermine the credibility of the government for others, and will put a further premium on efforts to remove this government altogether through the impeachment of Dilma. In any event, the attacks on Lula’s personal integrity will intensify, and even if Judge Moro ceases to be able to act against him directly, there are other ways in which the ongoing Lava Jato investigations can tighten the screw. The impeachment process is gathering steam in the lower house of congress, still presided over by Eduardo Cunha of the PMDB, who continues to urge his party to break with Dilma’s government completely. Cunha is still calling the shots on impeachment despite the fact that he himself has been declared an official target of investigation for his own alleged involvement in the Petrobras kickback scandals by the Supreme Court.
The political crisis will continue to impede Brazil from finding an effective response to the deepening economic crisis, and the deteriorating economic situation will have political as well as devastating social effects. Yet what those effects will be in the medium to longer term is becoming increasingly uncertain, and it is not easy to formulate a judgement about the balance of political attitudes more broadly on the basis of the voices of those who show up to demonstrate in the streets or go to protest against or defend the government outside Lula’s apartment or the presidential palace in Brasilia. What is clear, in my judgement, is that recent events have undermined democratic norms and the genuine rule of law in ways that are profoundly worrying. The (selective) leaking of unsubstantiated accusations should cease, and all the political protagonists should become more open about past sins and the kinds of reforms that might genuinely diminish future sins, bearing in mind that kickbacks and the payment of politicians for lobbying are hardly exclusively Latin American vices. Above all, both the mainstream media and opposition politicians should start reflecting more deeply on what they really wish for in this crisis, as its consequences are in clear danger of escaping their control.