Brazil: Given the brush-off

Covered in tattoos, trucker Edilson da Silva is not one to hold his tongue. But even he has to be careful what he says when it comes to the São Paulo state police.

Highway officers impounded his removal truck last Saturday in a remote rural outpost on the state’s coastal road because of a problem with a document.

“I do the talking here,” one officer barks when Mr da Silva tries to complain that he is being given the wrong information repeatedly about the procedure to “liberate” the truck.

It is Wednesday and he is on day five of his quest. The costs mount – lost income, the fee charged for each day the truck remains in the compound and transport to and from the police post – and then there is the fear of being asked for a bribe.

“We’ve already been stopped here 10 times,” says the trucker. “Everyone knows there are officers here who ask for bribes.” (São Paulo state police did not respond to requests for comment. But the force says its policy is to analyse any allegations of wrongdoing against its officers and, if necessary, launch an inquiry or take punitive action.)

Abuses of power, whether at the grassroots level or at the highest echelons of politics, are a part of daily life in Brazil. Despite important progress in several areas of Brazilian governance, infractions by public officials and politicians, ranging from inefficiency, negligence and waste to outright corruption, remain common and are made possible by what Brazilians call the nation’s culture of impunity.

“Our penal system is very lax, it’s a system totally pro-suspect, pro-criminality,” says Joaquim Barbosa, the blunt chief justice of Brazil’s supreme court, known as the STF. “Everything conspires to ensure that criminal cases do not have any consequences.”

Last year Mr Barbosa and his fellow supreme court justices made Brazilian history by handing down prison sentences to senior politicians, including former right-hand men of Luiz Inácio Lula da Silva, the former president, for using public money to buy votes in Congress. The case, known as the Mensalão, or big monthly stipend, was only the second time that any serving politician, let alone a group of them, had been sent to prison.

But now the case has put Mr Barbosa and the justices on trial, this time in the court of public opinion. Last month they granted many of those convicted the right of appeal on technical grounds. While experts are split on the merit of the appeals, the hope created among ordinary Brazilians by the convictions has been replaced by a familiar scepticism. Any public backlash against the case could affect the re-election chances of Dilma Rousseff, the president, following mass demonstrations in June against poor public services and the perceived incompetence and corruption of the country’s political classes.

The outcome of the appeals will be watched closely beyond Brazil’s shores. For all their economic progress, one of the big differences between the Bric nations, which also include Russia, India and China, and the advanced industrialised countries is weak governance and a failure to uphold the rule of law.

With emerging markets coming under the microscope as loose US monetary policy draws to a close, those nations where the rule of law is stronger are likely to appear more attractive in the coming era of scarcer capital.

“Rule of law is one of the major tools to build trust in society,” says Oscar Vilhena, director of law at FGV in São Paulo, an academic institution. “People do not engage as freely in the economic relationships that lead to greater development when there is a lack of rule of law.”

Impunity has a rich history in modern Brazil. Among the most notorious cases, Senator Arnon de Mello, the father of Fernando Collor de Mello, a later president, shot and killed a politician on the Senate floor in 1963. He was absolved of any wrongdoing. His son, 20 years later, was impeached as president in a corruption scandal. He is still serving as a senator.

Last year Demóstenes Torres, a senator once known for his firebrand anti-corruption speeches, was investigated by federal police for allegedly collaborating in secret with Carlos Augusto Ramos, suspected to be one of the nation’s largest gambling racketeers. These allegations have been denied. This year Cid Gomes, governor of Ceará state in the impoverished northeast, was investigated after Ivete Sangalo, a popular singer, was paid R$650,000 ($300,000) to open a hospital. The next month the façade of the building blew down in a storm. Last year. Mr Gomes paid R$3m to have Plácido Domingo, the Spanish tenor, open an events centre.

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But impunity in Brazil has a more sinister side. In the decade to 2010, at least eight serving mayors were assassinated, reported R7, a media outlet. Last year, five journalists were killed in Brazil in connection with their work, the largest number in Latin America outside Mexico and one of the highest in a country at peace, according to Reporters Without Borders. Brazil is ranked 69 out of 176 countries and territories in Transparency International’s corruption index. Although its score of 43 is better than other Brics, any country scoring less than 50 is considered to have a serious corruption problem.

“Our penal system in its present form encourages impunity,” says Jorge Sanchez, chairman of Amarribo, a group combating corruption in municipalities that is also the local partner of Transparency International. “Those who have good lawyers can prolong a case until it passes the statute of limitations, so even if they are eventually found guilty of an offence, they cannot be punished or arrested.”

The Mensalão case dates from 2003 and 2004, the first two years of Mr Lula da Silva’s new government. To get his bills through Brazil’s highly fragmented Congress, the leadership of the former president’s Workers’ party, including José Dirceu, former chief of staff, José Genoino, party president, and Delúbio Soares, the treasurer, organised monthly backhanders to opposition politicians in return for their support.

The case languished in the Supreme Court until last year. Then, in a shock to ordinary Brazilians, Mr Barbosa and his colleagues discarded the institution’s tradition of submissiveness towards those in power and delivered tough sentences to 25 of the original 40 suspects. Mr Dirceu was sentenced to almost 11 years in prison, Mr Genoino almost seven and Mr Soares nearly nine. The decision was seen as an important demonstration of judicial independence because many of the judges had been appointed by Mr Lula da Silva or Ms Rousseff, his successor.

After the decision last year, Mr Barbosa, the court’s first black president, told foreign journalists the main problem with the system was the variety of “absurd” rules surrounding the statute of limitations for corruption. As one example, if a person commits a crime that would carry a two-year jail sentence but the prosecutors do not bring a case against him within four years of the crime being committed, he goes free.

Mr Barbosa said another factor used to justify impunity is the terrible state of the country’s overcrowded prisons. There is a perception that judges often avoid sending white-collar criminals to prison for fear they will not survive.

“There was one newspaper during the Mensalão trial, for example, that published an editorial saying the penalties being applied were absurd, medieval, that people of this level should not be imprisoned,” he said.

Others say the main problem with the court system is the many opportunities for appeal. Jorge Hage, head of the CGU, the federal comptroller-general in charge of monitoring public accounts, says the law allows a person to remain free while going through an appeals process that is exhaustive and often frivolous. Most defendants resort to appeals to the Supreme Court even though it is meant to handle only constitutional questions, and the Superior Tribunal of Justice, another specialised court. Cases can take 20 years.

“In the majority of countries, the majority of cases do not even make it to the Supreme Court,” Mr Hage said in his office in Brasília. “That’s why the US Supreme Court judges about 100 cases a year and ours handles about 100,000 a year.”

Others say even if the many bills stuck in Congress to close loopholes in the law go through, corruption will not be so easily eradicated. One is the problem of campaign finance, which is often achieved through kickbacks from the private sector. “The corporate financing of campaigns is for me the base of a great part of our corruption problems,” Mr Hage said.

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Another problem is Brazil’s economic system in which the state metes out riches to interest groups through subsidies, benefits, loans and protection in a process described as rent-seeking in a paper by Marcos de Barros Lisboa and Zeina Abdel Latif, academics, titled “Democracy and Growth in Brazil”. Brazil has added layers of controls to limit misuse of these funds but these have added to the lack of transparency. “Corruption is an outcome of such a complicated system,” says Mr Lisboa, who works for Insper business school in São Paulo.

For this reason, analysts are split on what will be the legacy of the Mensalão case. While not all of those convicted qualified for appeals, those who did included some of the highest-profile offenders, such as Mr Dirceu and Mr Genoino. The latter still serves in the national Congress.

Most believe Mr Dirceu, Mr Genoino and the others now have the chance to secure more lenient sentences so that they can serve an “open” or “semi-open” term in which they only have to sleep at night in their cells. Such an outcome would still be positive, Ferdinand Henrique Cardoso, a former president and senior opposition figure, wrote recently.

Mr Vilhena of the FGV said the case was part of a positive process of change that began 30 years ago after the end of a two-decade dictatorship. The process includes the establishment of the federal police and an independent prosecutors’ office and the ending of a requirement for the Supreme Court to seek permission from Congress to try serving politicians. “Politicians are becoming more aware of these changes,” he says.

Politicians will ignore this transformation at their own risk. As shown by June’s street demonstrations, the middle classes are awakening. If the mensaleiros are seen to be getting away with it, Brazilians will have a grand stage next year on which to vent their anger at the football World Cup, followed by a presidential election.

“I’ve lived long enough already to believe that the Mensalão will not result in anything,” says Olinda Betti, who works in a kiosk on Avenida Paulista, São Paulo’s main thoroughfare. “I’m 70 years old and when I was a child I remember my father saying the politicians were stealing public money. In my adolescence I heard the same kind of thing and now when I have a great grandchild myself, the story hasn’t changed.”

E-governance: Website lifts veil on official misdemeanours

In spite of public cynicism about the government, Brazil has made strides towards greater transparency.

Many argue that the mere fact that the first hearings of the Mensalão trial ended in convictions of such senior politicians is positive. One of those sentenced to jail, José Dirceu, the former chief of staff of former President Luiz Inácio Lula da Silva, was once the most powerful man in the land after his boss.

Beyond the trial, Brazil has passed laws such as the “ficha limpa”, literally clean record law, which prohibits politicians from standing for office if they have been convicted of a crime.

The country also enacted a freedom of information law in May last year. “What we need is for people to start using the law more,” says Jorge Sanchez of Amarribo, a group combating municipal corruption.

A bill that would punish companies for engaging in corruption is in the later stages of passing through Congress.

Brazil is also increasing its use of “e-governance”. Through the federal government’s Portal da Transparência, the ordinary citizen can track the salaries of public servants and even their expenses. Senior federal public servants were issued in 2007 with an expenses card on which they are required to pay all of their petty costs. These expenses appear on the portal.

“When we first introduced this, there was confusion nationally because the initial shock of transparency can be frightening for people,” says Jorge Hage, the head of the CGU, the federal comptroller-general in charge of monitoring public accounts.

Mr Hage says there were strange cases, such as a minister who spent R$8 ($3.70) of public funds on a tapioca snack using the card. This appeared on the website and caused a national scandal. “From thereon, he was known as the minister of tapioca,” Mr Hage jokes.

Another minister sparked outrage by buying for an overseas trip with his card in a duty-free shop.

However, such controversies are increasingly uncommon because the glare of transparency introduced by the cards and the website are reducing the misuse of petty cash at the federal level. “The best vaccine against corruption and against poor management of public affairs is …transparency,” Mr Hage says.

With additional reporting by Thalita Carrico