By Lucas Bento*
In his groundbreaking book on constitutional law, the 19th century English legal scholar A.V. Dicey emphasized that one of the fundamental aspects of the rule of law is that “no one is above the law and everyone is equal before the law regardless of social, economic, or political status.” Brazil’s commitment to the rule of law is currently being tested in the Brazilian Supreme Court in what has been called Brazil’s “trial of the century”.
Jose Dirceu, Chief of Staff to former Brazilian President Lula Inacio da Silva, is accused, along with another thirty-six top former government officials, lawmakers, and business executives of organizing a major vote-rigging scheme. Dubbed the Mensalão (Portuguese for a big monthly payment), the scheme allegedly involved the use of public funds to pay opposition parties for support on important votes in Congress.
Lula, however, was absolved by the Supreme Court in August when it rejected a petition to include the former president in the lawsuit. Judge Joaquim Barbosa, the court’s rapporteur, found that Mr. Dirceu primarily masterminded the scheme and acted as its key negotiator. The defendants also include the former treasurer and the former president of the Partido dos Trabalhadores, Brazil’s ruling party. Judge Barbosa noted that the scheme raised 55 million Reais to pay members of Congress in 2003 to vote on important issues such as tax and pension reforms. Other Supreme Court judges, however, have yet to issue their conclusions, which they are likely to do so this week.
The suit was filed weeks before municipal elections and could have an adverse impact on the ruling party. But the country’s experience with political corruption is not a partisan issue, nor is it a novel phenomenon. Brazil has chronically suffered from political corruption. In the mid 1990s, Brazil had one of the worst scores in the Corruption Perception Index, a survey that ranks 182 countries and territories based on how corrupt their public sector is perceived to be. In 2011, Brazil made some improvement- but nothing worthy of a commendation- with an overall score of 3.8 out of 10, ranking 73rd in the world. Importantly, Brazil scored much worse than other South American countries, such as Chile (22nd) and Uruguay (25th). It is still perceived as the least corrupt member of the BRIC nations though. Indeed, China (75th), India (95th) and Russia (143rd) appear to be more corrupt.
Ironically, however, the alleged Mensalao scheme was taking place at a time when Brazil signed the United Nations Convention against Corruption, which recognizes that corruption “undermines democracy and the rule of law”. Corrupt practices like the Mensalão are antithetical to the rule of law because they effectively enable some to avoid the law for personal or, in this case, political gain.
Brazilians are increasingly cynical about their country’s national motto: ordem e progresso (order and progress), which is inspired by French philosopher Auguste Comte’s positivist adage L’amour pour principe et l’ordre pour base; le progrès pour but (“Love as a principle and order as the foundation; progress as the goal”). Brazil has certainly progressed. Its track record in raising people out of poverty has been considered a model around the world. The Bolsa Familia program, for instance, has provided access to basic education and healthcare to swathes of Brazilians and lifted millions out of poverty. Although the economy has not grown as much as expected this year, its growth and dynamism in the past decade has certainly caught the attention of investors and economists alike.
The country’s commitment to the rule of law, however, hangs in the balance. The genius of Brazil’s founders is that they foresaw that progress and order go hand-in-hand. Often characterized as a “sleeping giant”, Brazil now has to complete its founders’ vision by complementing progress in the economy with order in the political system. To this end, the Brazilian Supreme Court can now put the country’s political future on a different track– one which would live up to Dicey’s vision of the rule of law and make the Brazilian people better off.
–Adeel Ishtiaq served as Lead Editor for this op-ed.
*Lucas Bento is a trial lawyer at an international law firm in New York and specializes in complex fraud litigation and international arbitration. He has also consulted for the Brazilian government and state-owned enterprises, published academically on international law, and written opinion pieces for leading news media.
1. Brazil corruption trial from Lula era starts, BBC News, 2 August 2012, available at http://www.bbc.co.uk/news/world-latin-america-19091137