Compared with the famously glacial flow of Brazilian justice, its pace over the last few days has been remarkably swift. Less than 24 hours after former president Luiz Inacio Lula da Silva failed to convince the Supreme Court to let him fight his 12-year corruption conviction in liberty, federal court judge Sergio Moro ordered his arrest.
To the country’s fevered partisans, Lula’s legal denouement is — pick your tribe — a travesty of justice or a triumph of the republican precept that even national legends are not above the law. That quarrel will likely smoulder and cast a pall over this year’s presidential elections, which polls have touted Lula to win.
What’s less certain is how much of a landmark the Lula case represents, and whether it leaves Brazil’s ruling institutions better off. The doubts start at the top, where the national legislature and central government are marbled with political freebooters and worst practices, and the Supreme Court’s flip-flops on marquee cases have hindered as much as helped. Even as Lula surrendered to federal police last Saturday (a day after the court-ordered deadline), 78 other legislators and ministers facing corruption charges had yet to stand trial.
That might sound harsh. Since Brazil returned to democracy in the 1980s, its governing institutions have weathered much turmoil, including the fall of three presidents — two by impeachment — and a devastating, decade-plus string of still unfolding political corruption scandals. The historic “Carwash” probe, which took down a conspiracy of crooked moguls and political muckety-mucks, showcased the capabilities of dedicated police, prosecutors, auditors and judges when working in concert. “This is precisely how democracy should work,” Andrew Spalding, a corruption scholar at the University of Richmond School of Law, told me recently. “Brazil redeems the idea that democratic institutions can combat corruption.”
The Supreme Court was at the pinnacle of this pivot against corruption, and was widely — and justifiably — hailed when it convicted some two dozen political higher ups in a massive payola and kickback case in 2012. Yet, the top court’s record since then has been far more ambiguous.
Leave aside the magisterial peacocking that degrades Supreme Court cases, which are broadcast live, into reality television in robes. And never mind the personal rancour that sometimes turns debate between justices into a cage fight. “You are an awful person, a mixture of badness and backwardness with psychopathic touches,” Justice Luis Roberto Barroso said of his peer and main rival, Gilmar Mendes last month. “His excellency Barroso should shut down his law practice,” parried Mendes.
The court’s logic can mystify even those steeped in legal arcana. So it was during Wednesday’s 11-hour ruling on whether Lula — whose conviction for taking a contractor’s bribe had already been upheld and his sentence increased on appeal — could be jailed immediately or only after all conceivable defence motions had been exhausted.
Part of the Supreme Court’s problem is its impossible mandate. Blame the first generation of post-military lawmakers, who packed the justice system with rambling perks and purview when they rewrote the constitution in 1988. Brazil’s top court is in fact three benches in one, serving as a constitutional court that interprets abstract issues of law; an appeals court for any cases with constitutional issues; and a criminal court for top politicians and office holders who enjoy immunity in common court.
Today, Brazil’s Supreme Court sits atop a national justice system that Brazil scholars Luciano Da Ros and Matthew Taylor called “an impressive juggernaut,” with sweeping authority and a budget nearly four times larger by purchasing power parity than that of its nearest rich world rival, Germany. No wonder Portuguese constitutional scholar Jose Joaquim Gomes Canotilho calls the Brazilian Supreme Court one of the most powerful in the world.
Yet, that same sprawling brief saddles the Supreme Federal Court with a staggering caseload of more than 80,000 cases a year, according to Taylor, with decisions on half of those cases pending from previous years.
That remarkable “congestion rate” not only clogs the court, but delegates considerable power to individual judges. A 2013 study by the Getulio Vargas Foundation found that of 1.3 million cases heard over the previous 22 years, 87 per cent were decided by a single justice.
While many of those cases dealt with redundant issues, and so could be readily dispatched, the considerable clout wielded by each of the 11 Supreme Court justices is an invitation to arbitrariness and playing politics.
Consider the behaviour of Justice Mendes, who ruled on three separate occasions to release the owner of a bus company who’d been ordered to jail before trial on corruption charges. Mendes declined to recuse himself, even though he and his wife had been guests of honour at the wedding of the bus mogul’s daughter; the groom also happened to be his wife’s nephew.
The court’s problematic role was on full display during last week’s session on Lula. Some justices wanted to rule only on Lula’s bid to stay out of jail, while others insisted that the court should rewrite the constitutional case law on imprisonment itself. No matter that the same court had already settled that matter two years ago, deciding by majority — in line with most other legal systems — that allowing convicts endless appeals before imprisonment was a backdoor to impunity for the wealthiest criminals. Look no further than the case of former Senator Luiz Estevao, who was sentenced to 31 years in an embezzlement case in 2006, but was only sent to jail ten years later, after 34 appeals. Little wonder only 30 per cent of Brazilians told pollsters they had confidence in the country’s courts.
“Much of the debate was a struggle over which Supreme Court was in session,” Michael Mohallem, a constitutional law professor at the Getulio Vargas Foundation, told me. “The constitutional court or the appeals court.”
By session’s end, the argument for standing jurisprudence won the day. But champions of the tougher line on corruption may want to hold off on hoisting those effigies in pinstripes. No sooner had the court ruled against Lula than dissenting justices were signalling their intent to raise constitutional points of order in forthcoming sessions. Consider that most judges have recently flipped their opinion to favour banning imprisonment until all legal motions and manoeuvres run their course. Hence the troubling prospect that Lula — and dozens more convicted Carwash culprits — could be sent to jail for corruption only to be released later on constitutional grounds. Brazilians will have to wait on that verdict.
Mac Margolis writes about Latin America for Bloomberg View. He was a reporter for Newsweek and is the author of The Last New World: The Conquest of the Amazon Frontier.