Brazil’s Most Underreported Reform Battle

With all of the turbulence in Brazil, observers can be forgiven for ignoring a potentially paradigm-shattering initiative that picked up speed last month: reducing politicians’ court privileges. Somewhere between 37,000 and 54,000 politicians nationwide enjoy special legal standing, known colloquially as the foro privilegiado. Sitting federal ministers and elected federal officials—more than 800 individuals in total—can only be tried in the Supreme Federal Tribunal (STF), a sclerotic court with little capacity, interest, or time to spare for criminal cases. When the STF seems to be nipping at their heels, furthermore, indicted politicians often simply resign, so as to see their cases start over in lower courts, buying them another decade or two of appeals. The result of this system has been practical immunity from prosecution: because of this extraordinary privilege and the slow pace of the courts, fewer than one in one hundred cases against politicians in the STF lead to conviction, meaning that there is little deterrent to the widespread looting of the public treasury and other crimes. 

The uproar over the incendiary wiretaps of Joesley Batista overshadowed an important movement to limit these privileges and introduce a modicum of accountability for powerful public figures. While hearing a case against a former congressman at the end of May, STF justice Luís Roberto Barroso asked the full court to consider limiting special standing, restricting it to crimes committed during politicians’ terms that are related to their public jobs. He noted that more than 200 cases against politicians had run out the statute of limitations in the STF, and that another 500 cases were pending against roughly one-third of Congress. He was supported by the chief federal prosecutor, Rodrigo Janot, who noted that such limits would protect politicians from politically-motivated litigation, without permitting criminal abuses. Both argued that the limits on standing should be implemented immediately, and Barroso cited a study by the Fundação Getulio Vargas that suggests that such a change would eliminate 90 percent of the cases against politicians currently in the high court.

Politicians are terrified of the STF’s initiative, not least because Judge Sérgio Moro (of Lava Jato fame) has shown that trial courts may be far less deferential toward big wigs than Supreme Court justices who share the same rarified Brasília air. The speed with which the high court moved forward on this discussion drove Congress to race forward on its own reform of special standing, which passed the Senate as a constitutional amendment at the end of May, and now heads to the Chamber of Deputies. If approved, the congressional reform would be a moderate improvement on the status quo, limiting the number of politicians with privileged standing, but it would also make it harder to jail those convicted of crimes, by requiring congressional approval before they could be sent to prison. In the past, congressional approval for any investigation of its members has been rare, except in the most egregious of cases.

It is a sign of the times that the STF has paused deliberation of the case, after President Michel Temer’s nominee to the court, Alexandre de Morães, asked for extra time to evaluate Barroso’s proposal. Meanwhile, Justice Gilmar Mendes, never one to mince words, tore into Barroso for his “institutional populism,”and called the FGV study an “academic fraud.” 

The STF vote count stands at four in favor of eliminating special standing and seven votes pending. Of those seven, Morães, Mendes, and two others seem inclined to vote against change. That leaves three relatively moderate and pragmatic justices as swing votes, suggesting that reform could narrowly pass. This calculation may help to explain Justice Morães’ logic in asking for additional time to study the proposal: under the informal rules of the STF, Justice Morães is permitted to take his time evaluating the case, which could stifle Barroso and other reformers for months, if not years. Congress, meanwhile, seems unlikely to continue pushing a reform of its own if the STF is not breathing down its neck.

As this case demonstrates, the STF is now at the center of the hurricane in Brasília. Temperatures are likely to rise in the STF in coming weeks, as battle lines are drawn in the trials of high-level Lava Jato defendants, as well as — potentially— President Michel Temer.