Published On: November 26, 2017

Supreme Court Helps Fight Political Corruption

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It would be difficult these days to find anyone who isn’t tired of corruption in Brazil. While it is every individual’s responsibility to be honest, there is a steadfast ethical standard in all countries that says the men and women who make the laws should be setting an example for the rest of society.

If a country’s lawmakers are not trustworthy, how can anyone else in the country be expected to obey the laws? If the leaders of the country are supposed to be those who deserve the highest respect, they should be accountable for their actions. After all, their salaries are paid by their constituents; they are public employees.

Today in Brazil, fully one third of the lawmakers in Brasília, congressmen and senators, are under indictment or have already been convicted of a crime but are not in prison because their cases are awaiting appeal. Brazil, like other developing countries, has long been a victim of its own leniency toward imprisonment of lawmakers.

Impunity for the wealthy who break the law has been an accepted practice since the days of the emperors. The legal system that has allowed impunity to continue in Brazil draws its power from the fact that no federal lawmaker can be placed before a judge on charges unless it is a Supreme Court justice. This system has made it extremely rare for politicians to spend time in prison.

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Supreme Court in Brasília

Polls taken in Brazil clearly reflect the view of the population that politicians have been getting special treatment and are not paying the penalties that everyday citizens would endure should they be convicted of similar crimes. However, it is up to congress to govern themselves, and nobody in Brasília is doing anything that will place more lawmakers in prison.

Nevertheless, Brazil’s Supreme Court (STF) has voiced their opinion on the matter and this could bring some major changes to the way congressmen consider their future actions. A majority of the justices in the STF voted to limit “partial immunity” to congressmen including senators. Partial immunity is the law that states federal congressman can only be placed on trial before the Supreme Court.

On Thursday, November 23, the STF decided to resume discussions on the matter that first arose back in May of this year. However, proceedings were once again interrupted after Justice Dias Toffoli requested additional time to review the case. Given that the court has not yet arrived at a ruling and that justices can still change their votes, the partial result this week will not yet alter the current rules regarding partial immunity.

Supreme Court Justices Dias Toffoli and Gilmar Mendes (Credit: Pedro Ladeira/Folhapress)

Supreme Court Justices Dias Toffoli and Gilmar Mendes (Credit: Pedro Ladeira/Folhapress)

Thus far eight of the eleven Supreme Court justices have stated their intention to alter the partial immunity law in this way – partial immunity would only be maintained in the case of politicians who have been accused of committing a crime during the term they are carrying out now. Therefore, a crime committed during a previous term would not fall under the special protection afforded by the partial immunity law. Additionally, in order to qualify for partial immunity, the crime must also be connected to their exercise of office.

According to some judges, such modifications in the current partial immunity statutes would mean that 90 percent of criminal proceedings of federal lawmakers seen by the Supreme Court would be transferred to lower courts. Not only would this allow the Supreme Court to focus on its backlog of other cases, but it would mean criminal cases against politicians would be far easier to prosecute.

Currently, different authorities qualify for partial immunity depending on the position they hold. Ministers, lawmakers, and the President may only be tried in the STF. Governors are tried in the Superior Court of Justice (STJ), while mayors are tried in Regional Federal Courts (TRF).

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Under the current legislation, if a citizen who committed a crime gets elected to office as a congressman or senator, then the case that was being tried in a regular court gets bumped up to the Supreme Court, thus delaying the outcome.

It seems clear at this stage that removing any layer of judicial protection from lawmakers will be a powerful step forward toward making them accountable to the population who elected them. If politicians refuse to be responsible in governing themselves, it is up to the courts to control them.

The final step toward accountability would be to remove all politicians from office who have been convicted of a crime. Thus far, the criminal justice system has been unable to instill such action. In this regard, Brazil could take a lesson from the US.

In the US, there is no law that states a congressman must resign his office if he is convicted of a crime; however, when it happens, congress immediately votes to expel any convicted politician. US congressman recognize that “one bad apple can spoil the bunch,” which means if the reputation of one congressman is ruined, it reflects badly on all congressman and jeopardizes their chances for re-election.

If Brazil is to continue to make progress in the 21st century as a developing nation in improving infrastructure and lowering unemployment, it seems essential to have honest men and women in charge of making the laws.

[Research for this article comes from Folha de S. Paulo]

 

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