The Brazilian STF and Eduardo Cunha

This morning the supreme court judge responsible for overseeing the Lava Jato investigation ordered the suspension of the PMDB’s Eduardo Cunha from his mandate and from his position as president of the chamber of deputies. This decision was ratified in a plenary session later in the day. Cunha, whose patronage powers have won him an extensive following in the congress, was the architect of the process that produced a large majority in the house for the impeachment of President Dilma Rousseff, in a process that many commentators, at home and abroad, considered a pantomime that brought Brazilian politics into deep disrepute. Cunha has been accused of innumerable acts of serious corruption and money laundering as a result of the Lava Jato investigations, and is also one of the Brazilian names that has come up in the Panama Papers scandal. The fact that Cunha and many other congressmen who voted for the impeachment were charged with serious crimes did not enhance the nobility of their cause in the eyes of the world.

Judge Teori Zavascki’s decision can only be welcomed. The question is why he has taken so long to make it. The Attorney General, Rodrigo Janot, requested the supreme court to consider Cunha’s suspension last December. So it has been a very long time coming. One explanation is that only Cunha could be relied on to produce the necessary two-thirds majority in the house to initiate the impeachment process. He was also strongly motivated to do so in vengeance for the fact that Dilma refused to assist his efforts to secure impunity. Now that the impeachment process has passed on to the Senate, which is likely to suspend the President and trigger the process by which Michel Temer, the current Vice-President, takes over, it is being argued that Cunha is no longer needed and that the failure to deal with him has made it more difficult to disguise the fact that what is taking place is really a coup, with very debatable moral, as well as legal, foundations.

On the other hand, Janot has also now requested that Teori Zavascki authorise the Supreme Court to investigate charges brought against ex-President Lula and President Dilma herself as a result of the plea-bargaining testimony of Delcído do Amaral, the now disgraced former PT leader in the Senate. The request also included Cunha again, plus the losing PSDB candidate in the 2014 elections, Aécio Neves. But it is principally targeted at PT figures and includes the minister who is currently responsible for President Dilma’s defence against her impeachment. Neutralising Lula by making him a convicted criminal would certainly be very convenient for the PMDB and PSDB, because he is still capable of winning the 2018 Presidential election unless a means can be found to disqualify him. Both Dilma and Aécio Neves have already insisted that the charges made against them by Delcídio are a pack of lies. But the point is that neither the suspension of Cunha nor the apparent inclusion of opposition figures in the new request will necessarily result in these figures being found guilty of the charges brought against them. Impunity may still be meted out selectively, and the PT singled out for special treatment.

Brazil’s supreme court sadly has a tradition of legalising coups. But there are political and ideological differences between the judges, which should, of course, be irrelevant to their legal and constitutional decisions. Tori Zavascki in fact overruled the attempt by his (notoriously politicised) colleague Gilmar Mendes to allow federal judge Sergio Moro to continue his investigation of ex-President Lula, insisting that the matter be returned to the jurisdiction of the supreme court. In response to this decision, the front of his family home in Porto Alegre was decorated with a banner with “Teori Traitor” written on it by right-wing activists, and the judge was subjected to a torrent of abuse from the same quarter in the social networks. It is certainly possible to argue that the supreme court has facilitated the coup process by a combination of actions and inactions, of which the delay in doing anything about the Cunha situation was clearly an important example. Yet doing the decent thing clearly isn’t easy in the present polarised political climate, and in this case late might still be considered better than never, even if Cunha eventually manages to save himself. Yet is it really a matter of “doing the decent thing”?

The removal of Cunha from his office, now confirmed by a plenary session of the supreme court, does not serve to distract attention from the now notorious fact that his allies have also been charged with serious crimes. Claims that the house vote for impeachment on August 17 had been delivered “by a general assembly of bandits” were amply justified by subsequent journalistic investigations into the protagonists, many of whose track records of dubious conduct precede the era of PT government. Leadership of the house now passes, if only for the moment since he will have to organise a new election amongst his colleagues, to another Cunha ally, Waldir Maranhão, of the Progressive Party: he is also being investigated by Operation Car Wash. But the assumption of the golpistas seems to be that the removal of Cunha from the scenario will prove sufficient to remove one of the most glaring impediments to the legitimacy of the coup. There is no guarantee here that the corrupt will eventually be brought to account, although the chances of that happening may prove higher if they are members of the PT.

What remains to be seen is what the supreme court will do about Janot’s more recent requests.  Are we going to have to wait another four months? Confidence in the rule of law has not been well served by events so far, and the underlying political and economic logic of what is happening should become ever more apparent over the coming weeks. Dilma Rousseff has declared that she is going to fight the impeachment process rather than resign and insists that she is the victim of a coup. There are growing calls for extraordinary elections, to prevent power being handed over to an indirectly elected and almost certainly popularly unelectable interim president. As of today, Brazilians at least have the assurance that if Michel Temer leaves the country, his functions will not be fulfilled by Eduardo Cunha in his absence. But Brazil doesn’t just need new elections, it needs the kind of political reforms that will ensure that the congress ceases to be the kind of Augean stable over which Cunha presided, with such consummate, if seldom ethical, skill.