Is the Brazilian justice system entering a legitimacy crisis?

Recent weeks have seen both organised and spontaneous protests by citizens against leading figures in the judiciary. An example of the latter was an outburst by passengers on a domestic flight against Supreme Court Judge, Glimar Mendes, notorious for his political sympathies with the PSDB,  a video of which is available on YouTube here. A recent example of organised action by activists, a clip of which can be viewed on YouTube,  was a protest in Salvador, Bahia, against Curitiba judge Sérgio Moro. This protest took place after a local judge in Bahia took the virtually unprecedented step of prohibiting the demonstration originally planned against Moro in front of one of the city’s main shopping centres.

Moro, another judge who has made his political sympathies and prejudices all too clear, was responsible for gaoling ex-president Lula in a case that attracted a storm of criticism from jurists outside Brazil. When the second instance appeal court in Porto Alegre upheld Moro’s verdict, it opened the way for Lula’s presidential candidacy in the October elections to be blocked by the Supreme Electoral Tribunal under the “Clean Slate Law”. Since Lula not only continues to lead commandingly in the opinion polls but has actually increased his advantage over all over candidates since his imprisonment, the PT has maintained him as its candidate, hoping that keeping Lula in the race for as long as possible before the TSE debars him will maximise the chances of his votes transferring to his eventual substitute, the current PT vice-presidential candidate, former mayor of São Paulo Fernando Haddad (whose own vice-presidential running mate will be the PCdoB’s Manuel D’Ávila). This is a high risk strategy that could go seriously wrong by dividing the vote for candidates promising to the reverse the results of the coup in the first round, resulting in a second round contest between the right-wing but establishment candidate, the PSDB’s Geraldo Alckmin, and the ultra-right populist Jair Bolsonaro. Yet the argument in its favour is that a growing number of voters now seem receptive to the argument that Lula has been unjustly imprisoned simply to keep him out of the elections not simply by individual judges who are politically biased but by a justice system that is determined to frustrate the desire of voters to return Lula to power to sort out the mess caused by an illegitimate and deeply unpopular government that the judges themselves did so much to bring into being.

What we can say with absolute certainty is that decisions made by judges are now playing a central role in Brazilian political life, not simply in terms of the impediments that they are placing on the campaign of the party that has won the last four presidential elections, but also in terms of the favours that they have done for some of the PT’s opponents. Dissatisfaction with a situation in which the decisions of judges who regularly reveal their class as well as political prejudices take precedence over the wishes of millions of voters is contributing to growing popular disillusion with elections and representative democracy as a means of addressing pressing social problems. But it is not simply their role in politics that is making Brazil’s judges increasingly unpopular.

The salaries and perks of the Brazilian judiciary are unusually generous by international standards, making Brazil’s justice system the most expensive in the world. At a time when most people are suffering as a result of austerity policies and a weak recovery from recession, seven of the eleven judges in Brazil’s Supreme Court recently voted in favour of giving themselves what one described as a “very modest” increase in base monthly salary from 33,700 reais to 39,300 reais. Including additional payments such as those that subsidise the judiciary’s housing costs, the average cost of each of Brazil’s 18,000 judges is 44,700 reais a month. This is twenty times the average earnings of Brazilian workers, but it is also a level remuneration of that would be the envy of  European judges. Including their generous pension plans, Brazilian judges cost so much more than European judges that the bill for their maintenance amounts to 1.4% of Gross Domestic Product as distinct from a maximum of 0.7% in Europe. Brazilian federal judges such as Sérgio Moro are at the top of the salary tree. So it is not surprising that one of the things that the Salvador activist in the second video mentions, in describing Moro as a “bandit in the judge’s robes” (bandido de toga), is the size of the monthly housing subsidy that the public pays alongside Moro’s salary to maintain his lavish lifestyle in Curitiba. Moro’s auxilio moradia alone is itself higher than the average wage received by Brazilian workers, and the total cost of this judicial perk nationally could exceed a billion reais in 2018. Furthermore, this and the other benefits beyond base salary received by Moro enable him to earn very comfortably more than the salary ceilings that seem to be established over the judicial branch of government. It might not be entirely cynical to think that judges feel they are entitled to exceptional increases in pay as recompense for maintaining the judicial state of exception that has operated since the impeachment of Dilma Rousseff. But with public expenditure on education and health capped for twenty years by the Temer government, and the effects of cuts made so far now all too visible, it is hardly surprising that many Brazilians are now as unhappy about judges’ pay as they are about the pay and privileges of elected politicians, which are also extremely generous by international standards.

It is important to accept that not all Brazil’s judges devote their professional lives to reproducing a class and racially biased justice system or the destruction of the PT. Nevertheless, the relative powerless of dissidents was demonstrated last month when Rogério Favreto, a judge in the Porto Alegre tribunal that had confirmed Moro’s sentence, accepted a habeas corpus petition presented by three PT members of congress and ordered the ex-president’s immediate release from gaol on the grounds that his presidential campaign created a new circumstance. Moro, his old friend the lead judge in the appeal court, and the tribunal president, had no difficult making Favreto’s decision null and void before it could be implemented. International pressure is proving equally impotent in the judicial field. On August 17, responding to petitions from the ex-president’s defence team, the United Nations Human Rights Committee by issuing an “interim measure” determination  that Lula’s political rights should not be suspended before all possible appeals to higher courts had been exhausted, since were Moro’s verdict not upheld, the damage done would be irreparable. The exact text runs as follows:

The UN Human Rights Committee has requested Brazil to take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections. This includes having appropriate access to the media and members of his political party. The Committee also requested Brazil not to prevent him from standing for election in the 2018 presidential elections, until his appeals before the courts have been completed in fair judicial proceedings.

Despite UN insistence that this was not a request but a directive to the Brazilian government which that government was obliged to accept given that it had signed the relevant international treaty, the Ministry of Justice and Foreign Ministry gave the issue short shrift, insisting that it was simply a recommendation that the Brazilian State was entitled to disregard.

There are therefore a variety of reasons for Brazilians to feel unhappy about the job that their judges are doing, the social and economic costs of the judicial system that is in place, and the damage that the judicial aspect of keeping the coup afloat is doing to Brazil’s international reputation. With “the markets” and domestic backers of the coup getting increasingly anxious about opinion polls that reveal little voter enthusiasm for their candidate, Geraldo Alckmin, it might be time for judges to start worrying seriously about the future consequences of their collaboration in the destruction of Brazil’s already low-intensity democracy. There has been no cosier relationship between politicians and the judiciary than in São Paulo under Geraldo Alckmin’s governorship, where judges have earned especially generous salaries even by Brazilian standards in recompense for their services to the PSDB administration. This has been to the obvious prejudice of the democratic principle of separation of powers and interests of social justice and human rights, as documented in detail in a recent thesis by  Luciana Zaffalton Leme Cardoso, accessible from the Fundação Getúlio Vargas Digital Repository. But as Brazilians become  increasingly infuriated by structures of extreme privilege that it was hard enough to justify even in happier times, and equally frustrated by the judicial role in maintaining the coup and thwarting the democratic process, leading members of the profession should probably start thinking about where they would like to be seen as standing should lawfare focused on Lula not prove sufficient to guarantee the continuity of the coup project.