Yesterday afternoon a light plane carrying four passengers crashed into the sea off the coast of Rio de Janeiro. One of the bodies recovered was that of Teori Zavascki, the Supreme Court judge responsible for oversight of the Operation Carwash (Lava Jato) corruption investigations and judgement of cases against politicians who, by virtue of currently holding office, cannot be investigated and tried by judge Sergio Moro in his lower court in Curitiba. Minister Zavascki, whose outstanding reputation for rigour, impartiality and discretion as a jurist has remained unscathed despite some questioning of the amount of time it has taken him to reach some judgements, was about to pronounce on the legal validity of the evidence provided under plea bargaining agreements by executives of the Odebrecht Group. Odebrecht CEO Marcelo Odebrecht was sentenced to 19 years and 4 months in gaol in March 2016 for his part in paying tens of millions of US dollars in bribes to executives of the Brazilian national oil company Petrobras. Odebrecht, founded in Salvador, Bahia, in 1944, became a global company in the 1980s. Its diverse interests cover not only engineering and industrial, infrastructure and real estate construction but also petrochemicals, through its control of Braskem, the fifth largest company in its sector in the world. Although Odebrecht is central to the corruption scandals surrounding Petrobras, which date back to the period before the Workers Party won the presidency, and illegal financing of electoral campaigns by all the major political parties, including the PT, the company has been accused of routinely securing contracts through payment of kickbacks in all its business, including business in countries outside Brazil, and at the highest levels of foreign as well as domestic government. The company has published an apology for its wrongdoing. We are still waiting to hear from most of those who accepted its money.
We already know that the denunciations made by Odebrecht executives implicate Brazilian politicians across the party political spectrum. Those named include President Michel Temer himself. Minister Zavascki’s untimely death now presents Temer with a dilemma, since in the first instance he is responsible for nominating his successor in the Supreme Court. In normal circumstances, the successor of a judge who retired, resigned or died would assume the responsibilities of the judge he or she was replacing, although the rules of the Supreme Court do allow for the possibility of redistributing elements of the work of the judge who is to be replaced to another sitting member of the court in exceptional circumstances, that is circumstances in which any delay in a process could result in a failure of justice to be properly executed. In this case, it would fall to the president of the supreme court, Cármen Lúcia, to redistribute Zavascki’s functions in relation to Lava Jato to a sitting member of the court. Nevertheless, on past precedent the procedure would be for the president to do this by lot in a court plenary session, to guarantee impartiality, which could also be controversial given that sensitivity of the case demands the “discretion” for which Teori Zavascki, nominated by Dilma Rousseff, was distinguished. Some sitting members of the Supreme Court are not felt to be politically impartial. There is growing speculation that Cármen Lúcia herself will choose a specific member to continue this part of Zavascki’s work after the court recess ends in February. The favourite in these speculations is the longest serving member of the Supreme Court, Celso de Mello, who recently reversed the decision of his colleague Marco Aurélio to remove the PMDB’s Renan Calheiros from the presidency of the Senate after he became a formal defendant on corruption charges. The judicialisation of Brazilian politics has turned the making, and timing, of “technical” judgements that have profound political significance into a new art form.
In the absence of an appeal to exceptional circumstances, delay in appointment of a successor by the president of the republic, which requires Senate approval, would at the very least delay immediate action on the basis of the Odebrecht denunciations, since further investigation and trial of politicians depends on the ratification that Minister Zavascki was on the point of providing. But it is not simply delay that is the problem. Temer has a clear personal and political interest in the case, along with many of the key supporters of his fragile regime who have also been named. Since the continuation of Lava Jato menaces the entire political class, and some of these key Temer allies such as disgraced ex-minister but still senator Romero Jucá have been captured on tape expressing their hopes that the problem could be made to go away, public scepticism is now at a very high level. Some of Teori Zavascki’s earlier decisions provoked aggressive demonstrations by supporters of right-wing movements hostile to the PT and he had received death threats. News of his death immediately excited an outbreak of conspiracy theories, although it should be stressed that it appears that weather conditions were bad because of heavy rain.
Another consequence of the death of the minister was that the federal attorney general, Rodrigo Janot, was obliged to get on the first available plane back from Switzerland, where he had been attending the World Economic Forum in Davos as a minister of a G20 country. Michel Temer did not go to Davos, arguing that he needed to focus on upcoming issues in the national congress (currently in recess), although his abysmally low approval ratings mean that he seldom leaves the presidential palace if he can avoid it even in Brazil. In the event, the presence of Finance Minister Henrique Meirelles as substitute did not prove a great success, since IMF Managing Director Christine Lagarde told him in no uncertain terms that Brazil should be prioritising economic policies to reduce social inequality, not pursuing policies guaranteed to increase it. In this morning’s edition of Salvador’s A Tarde newspaper, Bahian cartoonist Simanca wittily depicts Lagarde saying this while Brazilian foreign minister, the tucano Jose Serra, another leading figure who has been accused of serious graft and corruption, and is strongly tied personally and geopolitically to US economic interests, shouts back: “Communist! Go to Cuba!”. Janot’s presence was supposed to be a way of emphasising to foreign investors that Brazil was determined to stamp out political corruption. Yesterday’s tragic event may undermine that effort to present a more positive image of change in the country to global capitalists. But those global investors that remain interested in Brazil are probably mainly interested in plundering the country’s natural resources and benefiting from the privatisation of public education and healthcare now that the government seeks to make that easier for them, so eliminating regulation and taxes rather than corruption may be their chief concern.
The regime created by the coup has not put Brazil back on track. Unemployment continues to rise, public finances remain in a critical state, and the ongoing prison crisis continues to project an image of a country mired in violence, chaos, and abuse of human rights. Criminal mafias have prospered under the rule of political mafias, whilst government has worked on extending a state of exception that criminalises not simply social movements, such as the movements of the homeless and landless, but pretty well all forms of democratic dissidence and social protest, including those through which school kids from the less favoured social classes have tried to defend their constitutional right to hope for a better future. The future also looks pretty bleak for Brazil’s indigenous people, since the regime seems determined to undermine even their existing rights to land and protection from displacement and environmental destruction by agribusiness and extractive industries.
The long-term austerity package enshrined in Constitutional Amendment 55, so-called “reform” of the pension system, and changes to labour laws that are deeply unfavourable to an already vulnerable working class, promise to make Brazil the kind of “country of the future” that will have few international admirers. Temer’s “band of thieves”, to borrow what seems an increasingly apt phrase from a Portuguese critic of Dilma Rousseff’s ouster, are in power because they have agreed to serve a narrow elite that wants those kinds of policies. Yet Temer and his cronies, such as Justice Minister Alexandre de Moraes, are proving themselves ever more incompetent and incapable of dealing with the mounting number of crises that are now afflicting the country. How they handle the consequences of the death of Teori Zavascki is another test. Conspiracy theories aside, the evidence provided by Odebrecht plea bargainers, should it be properly investigated and proven well grounded, could easily provoke a political crisis that judicial states of exception and deployment of repressive violence will be unable to contain. But obstructing the process will have costs as well. Brazil’s president is probably not having a good day.