Will any good come of Brazil’s new prosecutocracy?
All are amazed at how Brazil’s Federal Police, Public Prosecutors, and Courts continue to arraign high-level politicians and private sector accomplices on charges of corruption. We are witnessing an extraordinary and unprecedented application of the rule of law, quite unlike anywhere else. Do not be fooled, however; this is not a popular movement to clamp down on corruption. Instead, this is a struggle between politicians and an emergent legal technocracy, or better put, a “prosecutocracy”.
Brazilians ought to realize that retributive justice (prosecution) cannot substitute the political reforms needed to dig the country out of its current hole. Given the political landscape, these reforms may be difficult to obtain.
Advances of the rule of law typically adhere to a pattern.
A crime leads to popular calls for reform, which gain the adherence of the press. Principled legislators and the parliamentary opposition then demand reform. Finally, new laws are enacted and applied, and the crime finds resolution in both curative and preventive measures. In the US, this sort of process gave rise to a professional civil service after the assassination of President James Garfield, critical amendments to the US freedom of information law in the wake of Watergate, and a host of other reforms, from environmental regulation to consumer protection policies.
Yet today’s Brazil has no such story lines.
Discoveries of grand corruption in Petrobras set off a showdown among different parts of the state, with no systemic reforms in sight. Brazil’s prosecutocracy – crusading judges, prosecutors, and police – inspired popular mobilization and press support for punishment, rather than reform. The opposition has remained silent – as its representatives have also been criminally implicated – and no political reforms of note have moved forward.
Three Obstacles to Reform
Brazil’s political elite, legal elite, and media elite suffer from irreconciliable ‘character problems’. These may prevent Brazil from using the current crisis to vitalize greater institutional resilience and strength.
First, the political elite is rotten.
Show me a group of legislators that have the integrity and ideological moderation to lead a drive for reform. As I’ve written before, Brazil suffers from political recruitment dilemmas. Good people need take heart and go into politics.
Second, Brazil’s legal elite believe themselves above the rule of law.
Indeed, FGV transparency audits as well as a study by Article 19, an NGO, show that the Public Prosecutor and the Judiciary are among the worst adherents to basic transparency obligations, as established in 2011 by Brazil’s new access to information law, 12.527. It is also clear that the judiciary does not comply with constitutional ceilings for remuneration. As a result, Brazil’s is one of the most expensive and inefficient judiciaries in the world (observe – salaries as multiples of per capita income). In effect, the behavior of these entities seems to demonstrate a belief that they are ‘above the rule of law’.
Third, Brazil’s media provides no noteworthy coverage of proponents of reform.
As I have written, the press’ disinterest in championing political reform is strategic rather than accidental. Without a strong vein of public interest reporting in the media, prospective reforms will meet with little political support.
This leaves Brazil in a quandary.
Who moves reform forward? As I have suggested, Brazil’s provisions for popular petitions appear to be perhaps the best solution. As it stands, Brazil’s prosecutocracy is undoubtedly doing good by purging the system. But an unhealthy system requires perpetual purging – an undesirable situation at best.