Bribe and Punishment

“The problem is that in Brazil you don’t convict. I’ve been in court for seven years, yet this is the second time we attempt to reach conviction. This course of action is still very novel to me and to other judges.” Judge Joaquim Barbosa is unhappy with his court’s conviction rate. He is closer to the rule than to the exception in a region that has suffered from a tainted judicial system since the establishment of its first institutions. Barbosa, however, isn’t merely a small-town public official drawn into the inevitable patrimonial political relations that plague Latin America. In reality, he is a justice and rapporteur at the Supremo Tribunal Federal, the Brazilian equivalent of the U.S. Supreme Court. Colloquially abbreviated as STF, the country’s highest court is currently conducting its most important trial in its two hundred years of existence, a process whose novelty, unprecedented size, and potential impact have intrigued justices and common citizens alike.

Justice Barbosa is referring to a gargantuan trial where 37 people have been indicted with up to seven different constitutional types of criminal offenses. All of the indicted were involved in a political bribery scheme at the federal level organized between 2003 and 2004 by the Partido dos Trabalhadores (Workers’ Party) to maintain congressional support for their incumbent government. The scheme became popularly known as “mensalão,” a word that generally refers to a large monthly stipend. Its executors were only brought to trial after several years of press investigations and peripheral scandals that progressively uncovered their complex political arrangements.

After the scandal gained attention at the national level and more evidence became available, an avalanche of accusations between involved parties began to shed more light on the individuals behind the scheme. Brazil’s Office of the Attorney General has been able to identify the recipients of $16 million in bribes, but many remain unclear – its official report concluded the total amount of transferred money adds up to over $70 million. Those indicted range from business and banking moguls to high-level government officials. Among the latter group are José Dirceu, a founding member of the Workers’ Party and former government minister, and José Genoino, who was president of the party when the bribes took place.

The judicial process examining the mensalão began only after a comprehensive series of investigations called on by the Brazilian Chamber of Deputies that led the STF to issue indictments in 2007. Designed to analyze all individual cases together, the trial began in August and led to the conviction of 25 of the defendants in late October. However, the trial is ongoing, and the STF’s justices have yet to decide on the specific sentences of each convict.

Nevertheless, the trial’s repercussions have transcended the capital, Brasília, and have struck a chord with the Brazilian public, popping up in day-to-day conversations. Born and raised in poverty, Justice Barbosa, the first African-Brazilian to become a STF justice, has found clamorous popular support – from trending hashtags on Twitter to doppelgänger masks worn during street protests and currently being mass produced for the February’s Carnival festivities.

To many Brazilians, the mensalão trial represents a shift in the impunity paradigm that has defined and supported political abuse in Brazil throughout its history. Denise Moura, a historian at São Paulo State University, traces corruption in the country back to the 16^th century, when the Portuguese Royal Court encouraged government bureaucrats to settle and work in Brazil by turning a blind eye to any instances of power abuse or graft. The Court was particularly permissive in Brazil’s rural frontier territories, which had little contact with government outposts and were left largely to the iron hand of local landholding bureaucrats. This practice of localized despotism was accentuated by the continuous isolation of large swaths of the country and eventually evolved into various forms of clientelism.

The mensalão scandal is just another instance of this form of corruption that reaches into the Brasília’s highest circles, yet it is the first major scheme at the federal level to result in thorough investigation and punishment. Previous attempts were not as successful: One of the latest was the trial of Fernando Collor de Melo, Brazil’s first democratically elected – and impeached – president after a twenty-year period of military dictatorship that ended in 1984. Publicly accused by his own brother of sanctioning a million-dollar influence peddling scheme run by his campaign treasurer, Collor was absolved by the Supremo Tribunal Federal for lack of evidence of his involvement. The verdict was met at the time with unanimous outrage by the public and has remained a constant reference for the STF’s previous failings throughout the mensalão trial, exerting pressure on the court to meet popular expectations this time.

Indeed, the thorough and fair conviction of corrupt officials allied to the government is an unprecedented and welcome fact in a country that in 2011 scored 3.8 on Transparency International’s Corruption Perception Index on a scale that ranges from 0 (highly corrupt) to 10 (highly uncorrupt). The convictions have also attracted international attention. While foreign analysts differ in their assessments of the trial’s practical impact on Brazilian law, it has generally been interpreted as a signal of change in a continent where many countries still struggle to bring corrupt politicians and corporate leaders of the past and present to court.

Although final sentences have not yet been delivered, Brazil’s STF has proven its ability to tackle corruption, setting a strong deterrent to any future attempts by government officials to pursue graft. Accordingly, there is widespread expectation that the STF will continue to indict and convict powerful officials involved in future corruption schemes. As Cynara Menezes describes in Brazil’s Carta Capital magazine, any future demonstration of leniency or lack of rigor in Brazil’s highest court will risk perpetuating the mensalão case as an exception rather than a game changer in Brazil’s justice system.

While the novelty, size, and execution of the trial are all laudable, it is also important to note its shortcomings and the extent of its immediate impact. The meticulousness of the investigation process might have been crucial to providing enough information for the conviction of several guilty officials. However, the seven-year gap between the first news of the scandal and the sentencing of involved parties is nothing new for the STF. The gap reflects an operational difficulty in Brazil’s justice system that was not addressed by the trial. Moreover, it stands alongside other shortcomings that delayed the process and continuously enabled those who are guilty to game the system to their favor. The outcomes of the mensalão trial ultimately resulted in many convictions in spite of such difficulties, which would only be resolved by structural reforms reducing the judicial privileges enjoyed by government officials. These reforms include the foro privilegiado, a constitutional arrangement that overloads higher courts with all indictments of corruption in the public sector, as well as undermining attempts to corrupt or maneuver the judicial system, particularly in the least developed areas of Brazil, where clientelism is at its strongest.

Moreover, the trial does not directly address the incentives that engender the politics of patronage and influence peddling at both the local and the federal levels. Indeed, just punishment does not necessarily impede these forms of corruption from reappearing in Brazilian politics. Paulo Uebel, Columbia SIPA’13, who is currently writing his thesis on Brazilian corruption, points to the source of the problem: “The Brazilian government has a series of legal, administrative, fiscal, and financial instruments at its disposal to pick winners and losers, all of which generate incentives for influence peddling.” Since governments at the federal, state, and municipal levels in Brazil often lack restraint in choosing the recipients of such benefits, free market competition gives way to bribery, lobbying, and personal connections. Rather than addressing these incentives directly, the mensalão trial merely exemplifies a palliation of their consequences.

Nevertheless, the international community has been primarily optimistic while observing the trial’s development. The results were particularly praised in neighboring countries like Argentina and Ecuador, where increasingly authoritarian governments seem to be headed in an opposite direction, cracking down on free press and showing little sign of tackling internal corruption and impunity. Clarín, Argentina’s largest newspaper, said that the convictions harmonize with a series of measures undertaken by Brazilian President Dilma Rousseff to increase government transparency and to discourage graft, such as publishing the salaries of all federal employees online. La Nación, another major Argentine newspaper, highlighted former Brazilian President Luiz Inácio Lula da Silva’s positive outlook on the process, seeing it as a sign of increased institutional strength rather than a threat to his party and political legacy. An op-ed from Ecuador’s La República similarly praises the STF’s “enviable” neutrality and integrity. News of the convictions resonated all the way north to Mexico, the region’s second largest economy, where El País stressed the trial’s unusually severe sentences and praised the STF’s decision to prevent international flight by withholding the passport of every defendant, albeit criticizing the STF’s slow pace in setting up the trial.

The mensalão trial might be the most remarkable event in Brazilian legal affairs today, but it is not the only contemporary government stride toward a more developed society in Brazil. As it embarks on its third decade of democracy, Brazil has finally achieved the political and economic stability it needs to address latent institutional problems that have hindered its development for decades, or even centuries. Indeed, Brazil strives to become a leading world presence worthy of its immense area, population, and resources. Begun during President Fernando Henrique Cardoso’s term in the 1990s and furthered by Workers’ Party President Lula and incumbent Dilma Rousseff, major advances have been made in three particular areas in which Brazil has struggled in the past: infrastructure, education, and inequality.

Notorious for their large-scale, poorly planned projects, Brazil’s main transport and energy networks have historically been built and maintained by federal and state governments, often costing too much to compensate for embezzled money and taking too long to be completed. Brazil’s latest leaders have begun to privatize parts of both networks, which have often led to safer, even environmentally friendly, projects, such as São Paulo state’s Rodoanel and scenic Imigrantes highways. Hoping to attract greater investments to interior areas, President Rousseff has also recently announced a series of measures to significantly decrease production costs, among them an up to 28 percent cut in electricity bills. The increasing inflow of foreign money is also unlikely to halt within the next few years. The military officers who planned the Rodovia Transamazônica highway, which connects large empty areas to each other throughout the Amazon rainforest, hardly knew their country would win bids to host both the 2014 World Cup and 2016 Olympics. Brazil is also a pioneer in offshore oil drilling, and the recent discovery of massive deep-water reserves along its coast has sparked the interest of investors and politicians alike.

The government has also specifically focused on improving the technical experience of science and engineering students by implementing the “Ciência sem Fronteiras” (Science without Borders) fellowship, which covers tuition and living costs for a semester or year abroad at top universities across the world. The program avoids brain drain by guaranteeing that students return to Brazil for the last year of their studies. At the same time, it provides students with the top-notch education and networking required to fulfill a growing national demand for high skilled labor.

There have also been advancements in the area of affirmative action. The STF ruled in April of this year that racial quotas in universities are constitutionally valid. In August, President Rousseff sanctioned a law that reserves 50 percent of all spots in federal universities to public high school students, who are often at a disadvantage when competing against wealthier private school students in taking standardized tests for admissions to the country’s best public institutions, which also happen to be free of charge.

Educational reform further caused an uproar among the white upper-middle class, whose privately educated younger generations will face tougher competition because of the new affirmative action policies in public universities. Criticism abounds, ranging from veiled racism and classism to more constructive arguments questioning the generality of the 50 percent public high school quota, which might lead to imbalances in regions where most students are privately educated. Some also question the functionality of racial quotas in a country where over 40 percent of the population identifies as a mix of European, African, and indigenous ancestry.

One of the most acute problems endured by Brazil is its high degree of income inequality. The World Bank’s latest measure in 2009 revealed Brazil has the 12^th highest Gini coefficient (the principal measure of a state’s economic inequality) in the world, surpassed only by smaller economies in Latin America and Sub-Saharan Africa. Fortunately, it is an active topic of discussion in the government’s agenda, and there have been signs of steady improvement. A comprehensive World Bank study published in 2004 pointed to inequitable access to education, regressive public transfers in the pensions system, and high wage differentials as the main source of Brazil’s unusually high economic inequality, but also revealed significant attempts by the governments of Presidents Fernando Cardoso and Lula to counter these problems. The aforementioned education policies ensure a fairer educational access and skill-building experiences.

However, it is important to note that progress has not occurred at an optimal pace, and that many government initiatives have faltered or outright failed because of weak political support, implementation problems, social resistance, and corruption. In the field of energy and infrastructure, local governments are struggling to complete the infrastructure projects necessary to accommodate the World Cup and the Olympics on time, in a paradoxical scenario where delayed bureaucratic checks have fostered urgency contracts that are more vulnerable to embezzlement. The federal government is also struggling to receive competitive bids for the completion of a high-speed rail system between São Paulo and Rio de Janeiro, and there has been significant pressure from environmental groups to halt the construction of large-scale hydroelectric projects in the Amazon rainforest. Large-scale public projects have also been difficult to implement. The transposition of the São Francisco River in Brazil’s northeast, for example, aimed at combatting regular droughts, has been delayed for more than a decade among complaints of embezzlement, environmental disregard, and questionable functionality. Environmental concerns have also arisen after a minor oil leak in one of Brazil’s newer offshore oil drilling platforms, and fears of a “resource curse” have increased since the Brazilian Deputies Chamber failed to pass a bill pipelining all future federal royalties to educational funding from the exploration of deep water oil reserves.

Concerning inequality, there has been remarkable progress with conditional cash transfers such as Bolsa Família, a titanic poverty-reduction program, but long-overdue reform of Brazil’s pensions system has been pushed back on the senate’s agenda several times and there is no short-term implementation in sight, partly because of the political cost of reducing government benefits to well-off senior citizens.

The mensalão trial is not an isolated phenomenon, but part of a multidimensional struggle to overcome developmental problems, which for a long time have characterized Brazil’s political, economic, and social organization. Many of these attempts to fix the system aim at the roots of the problems, and the successful implementation of a few is laudable not only at the national level, but also in Latin America as a whole, where other countries still languish without much hope for transformation.  However, as skeptics of the trial’s outcome have correctly highlighted, reform will only come from the continuous generation of progressive results, and any faltering can be interpreted as a step backwards in the struggle against corruption, inefficiency, educational imbalances, and inequality of opportunity. It is, then, necessary for both the government and civil society to actively monitor and evaluate the results of structural reform and developmental policies – recognizing progress and scrutinizing failure in order to spur and sustain long-term development in Brazil.