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Operation Lava Jato and the destruction of the rule of law

The fight against corruption in Brazil should imply political reform limiting the influence of economic power on politics, particularly during elections.  But without respect for the law, this is impossible. Español, Português

The President Luiz Inacio Lula da Silva arrives at the Federal Police Superintendence in Curitiba (PR) on Saturday 7 of April to face imprisonment. Image: Geraldo Bubniak/Zuma Press/ PA Images, All rights reserved

Corruption and illegal behaviour have characterised the ruling class not only in Brazil, but in many other societies from the more developed such as the US to the less developed around the world. 

The members of these hegemonic classes tend to be large agri-business owners, owners of banks or financial institutions, of industrial or service business, of media giants, of property, of national cooperations. And their members make up the legislative, executive and judicial branches of the government. 

In Brazil, like in many other countries, examples of this type of expedience are:

  1. “Financial engineering” in order to avoid or reduce tax payments
  2. Pressuring the government to reduce taxes placed on the rich
  3. Tax evasion
  4. Sending and depositing resources in so called tax havens, usually product of illegal activities
  5. Fraud committed in the name of public contractors
  6. The collusion between political groups and illegal activities including drug trafficking
  7. The financing of political campaigns to support individuals who will represent the interests of the hegemonic classes in Congress

Brazilian society is composed largely of urban workers (employed, unemployed and underemployed individuals), of rural workers without land and small cultivators, of excluded individuals that receive pay-outs from the Bolsa Familia benefits scheme whose value varies from 85 to 195 reales monthly ($25 to $57 roughly), of homeless people in the cities, and finally, of the lower middle classes made up of honest working people.

Brazil is not a corrupt society, given that the majority of Brazilians are not corrupt but are the victims of corruption and of illegal practises of the hegemonic classes.

The fight against illegal acts committed by the state and society and corruption are extremely important because in societies where social inequality is extreme, only the state has the power to put redistributive policies in place.

This is because companies, NGOs and people do not have the legal and financial capacity to take on the needs of the enormous quantities of people affected by wealth inequality.

However, the fight against corruption cannot be carried out in an illicit way or with political motives.

The politicization of government acts and media interpretations of the members of the Judicial branch at every level, from the county courts to the Supreme Federal Court, from individual prosecutors to the federal attorney and even the police force have caused certain decisions to be taken and practices carried out that put at risk fundamental principles of the law and that violate citizen’s rights.

Under the pretext of avoiding excessive legal resources that can lead to the limitation of certain actions, and of serving the public’s desires with regards to morality and punishment, the judges of the county courts, whose main exponent is Sergio Fernando Moro from the 13th Federal Court of Curitiba, engage in a series of illegal acts to gain denouncements that lead to accusing individuals, in exchange for freedom and sentence reduction imposed by the very same judges.

These denouncements are filtered in a selective way to the press before the actions are even initiated or completed, or in other cases when there is no guilty verdict.

The denouncements drawn from unjustified detentions or of long duration, and the imposition of unusually large sentences at the first hearing, are based on complaints from individuals that have confessed under pressure to having committed a crime in exchange for sentence reduction, that in the process implicate accomplices (especially political accomplices) often without evidence.   

Meanwhile, illegal leaks permitted by Sergio Fernando Moro and tolerated by the Supreme Tribunals ignite public opinion against denounced individuals mentioned in declarations shortlisted from public statements by the press, that then demands their conviction by the Judiciary.

The ‘Lava Jato’ operation, with the consent of the highest authorities of the Judicial branch, has committed the following legal violations:

  1. To act judicially on the assumption that the ends justify the means
  2. The demoralization and public humiliation of accused and suspected individuals at the hands of the police (coercive detentions, use of handcuffs, show of strength)
  3. Psychological torture, with physical components (such as long periods of incarceration) to obtain confessions and declarations
  4. Perverted use of provisional prisons
  5. Intimidation through the imposition of unreasonable fines due to accusations of informants
  6. Selective filtering of extracts of documents and confidential information
  7. Conviction of individuals as guilty argued by judges as fundamental for the sentencing of the accused
  8. Disobeying the constitutional principle of presumption of innocence that is the basic principle of rule of law, and that should be observed from the beginning of the investigations until the declaration of the sentence
  9. The transfer of burden of proof to the accused
  10. The absurd application of the theory of final action
  11. Lack of respect towards the extensive right to defence
  12. Lack of respect towards principles of impartiality and jurisdiction
  13. The denial of the provision of documents to the defence
  14. The violation of the privacy of the family of accused individuals
  15. The prolongation of the social consequences on the family of the accused
  16. The public condemnation of the accused and the defendants, and the incitement of public opinion against these individuals
  17. Disobeying the principle of sanctity of honour and of public image (Article 5, incise X of the Federal Constitution)

With the pretext of fighting against corruption, against immorality, against the default of judicial proceedings, and against impunity, these practices have contributed to the destruction of the foundations of the Judiciary and of individual safeguards.

The Federal Constitution of Brazil determines cases where political rights are lost or suspended as:

Art. 15. The cassation of political rights is prohibited. Their loss or suspension will only be permitted in the following cases:

III. Criminal sentence with the status of res judicata, providing the effects are in force;

V. Administrative corruption, in accordance with article 37, part 4.

Art. 37, part 4: Acts of administrative corruption will entail the suspension of political rights (…).

The loss of political and civil rights such as freedom can only occur when a person has been found guilty after having faced trial and has been condemned to a criminal sentence.

However, law 135 or ‘Ficha Limpia’, lists several situations condemned in second instance by a collegiate tribunal that can lead to the loss of political rights for 8 years. The term collegial tribunal, in reality, can consist of a group of only 3 or 4 judges from a regional court.

The Complementary Law 135 of 2010 is therefore flagrantly unconstitutional as it violates a clause of the federal constitution that clearly declares “nobody will be considered guilty until the legal proceedings have concluded with a criminal sentence” (Art. 5, incise LVII) and therefore, by being declared as not guilty, the sentence should not be served.

On the other hand, two decisions by the Supreme Court from the 1st of February 2016 of 7 against 4 and another in October 2016 of 6 against 5 consider the serving of a sentence after the sentencing of an individual on appeal as constitutional.

The Supreme Court has in fact modified a constitutional mechanism that it could not create, due to the fact that it is within the exclusive jurisdiction of Congress to emend the constitution.

Operation Lava Jato has contributed to foreign business interests and states in Brazil:

  1. By presenting the Brazilian state as the principle cause of corruption within Brazilian society
  2. By presenting the Brazilian state as inefficient and guilty of national economic strife
  3. By justifying the need to minimize competence and capacity of the state to act
  4. By weakening the regulatory capacity of the Brazilian state
  5. By justifying the privatization (and indiscriminate denationalization) program carried out by the Temer government
  6. By weakening Brazilian companies and national/state capital in both Brazilian and international markets before mega companies of other countries
  7. By weakening the government of Brazil in its mission to promote development, to consolidate democracy, to defend sovereignty and to conduct international affairs, including actions carried out within the BRICS bloc.

The objective of Operation Lava Jato is not to end corruption in Brazilian society or its political and administrative systems. If that were its objective, judges, prosecutors and members of the police force would be more discreet and cautious throughout the procedure to avoid the eventual annulment of sentences and processes, and senior ministers would prevent the illegal activities of Lava Jato.

However, the true political objectives on a national scope have in large part already been achieved and are the following:

  1. Defame politicians, especially progressive politicians and their political activity
  2. Demotivate progressive political movements
  3. Demoralize workers as a social class
  4. Demoralize the Workers Party (Partido dos Trabalhadores) as corrupt and present it as equal to other parties in its objectives and actions
  5. Identify former president Lula as the source and principle culprit of all corruption in Brazil
  6. Defame and demoralize former president Lula and prevent his election

But the solution to the “slow nature” of judicial processes however can and should be achieved through the following simple means:

  1. Absolute impartiality and public transparency in the magistrates draw for the high courts
  2. Compliance with the deadline for the returning of hearings of processes requested by the magistrates
  3. Judging processes by chronological order according to entry in the high court
  4. Revision of the number of resources available
  5. Implement a deadline for the final hearing after the high court process admission date

On the other hand, an effective fight against corruption would entail political reform that limits the influence of economic power on elections and politics in general, and this could in no way be carried out without respecting the rule of law and the constitution, a fact applicable to certain judges attributed to this “mission of salvation”.

In fact in Brazil today and since 2003, we are witnessing the destruction of the rule of law, of judicial power and of the 1988 Constitution, like in 1963 when the hegemonic classes felt their power over the political system slowly slip away, and saw their privileges and their ability to behave illegally with impunity disappear.

However, and finally, the historic fight of the Brazilian population for democracy, development, social justice and sovereignty remains as it has always been; tough, and it will never end until a moment of final victory arrives. 

About the author

Samuel Pinheiro Guimarães. Diplomático brasileño. Fue Secretario General de Itamaraty (2003-2009) y Ministro de Asuntos Estratégicos (2009-2010).

Samuel Pinheiro Guimarães. Brazilian diplomat. He was General Secretary of Itamaraty (2003-2009) and Minister of Strategic Affairs (2009-2010).


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