Judging Bolsonaro

Brazil’s judiciary will be a major check on the country’s far-right president-elect.

Brazilian Judge Sergio Moro gestures as he leaves the house of Brazilian President-elect Jair Bolsonaro after a meeting, in Rio de Janeiro, Brazil on November 1, 2018. (MAURO PIMENTEL/AFP/Getty Images)
Brazilian Judge Sergio Moro gestures as he leaves the house of Brazilian President-elect Jair Bolsonaro after a meeting, in Rio de Janeiro, Brazil on November 1, 2018. (MAURO PIMENTEL/AFP/Getty Images)

Following the election of Jair Bolsonaro to the Brazilian presidency in October, most observers have focused on the potential for disaster. It is true that Latin America has seen its fair share of caudillos—strongmen with military backgrounds who lead by sheer force of personality. But it is important to resist the tendency to overreact to the rise of a sharp-tongued populist in the United States’ backyard. After all, if there is one thing a caudillo should fear, it is a strong, independent, and multilayered judiciary—exactly the kind Brazil has.

Since its founding, Brazil has had a dizzying number of constitutions—nine in total, one lasting only three years. Most featured strong executives and no judicial review, which contributed to years of political instability. By contrast, Brazil’s current constitution, ratified in 1988, finally established a strong separation of powers. The president is now accountable to both congress and the judiciary. Meanwhile, a quasi-fourth branch of government, the Public Prosecutor’s Office, composed of independent public prosecutors who work at both the federal and state level, is also insulated from executive influence. Together, the judiciary and the Public Prosecutor’s Office’s deep investigatory powers and considerable autonomy ought to be a warning to any politician attempting to centralize executive power in Brazil.

In fact, the judiciary has proven so decisive in Brazilian affairs that critics and supporters alike often speak of the judicialização da política (“judicialization of politics”). For instance, the courts led the way to the legalization of same-sex marriage and the ban on corporate donations to election campaigns. They were also instrumental in bringing down former Presidents Dilma Rousseff and Luiz Inácio Lula da Silva as part of the “Lava Jato” (“Car Wash”) investigation, the largest anti-corruption campaign in the country’s history.

The way Lava Jato unfolded is instructive. At first, Rousseff managed to appear beyond reproach from the campaign, which unfolded during her presidency. To meet a budget surplus target set by Congress, however, Rousseff fudged the books in an accounting sleight of hand involving loans from public banks.

The beginning of the end for Rousseff was a ruling in October 2015 by the Federal Court of Accounts (an auditing body) that the scheme was illegal and a violation of fiscal responsibility. As a partisan impeachment process proceeded through Congress, it turned out to be the legal ruling that was key to her downfall. It served as a constant justification for those voting in favor of impeachment, even if there were other, more partisan, motives for their moves.

It was the judiciary, too, that felled the immensely popular Lula, who was barred from running for president this year after the Supreme Court upheld the initial conviction against him for corruption. Despite his defiance, including a New York Times op-ed claiming that jailing him was akin to the military dictatorship’s 1964 coup, Brazil’s judiciary persisted.

Another telling fact about the Lava Jato process is that, rather than having its origins in one of Brazil’s highest courts, the investigation started in Curitiba, a relatively minor Brazilian city, before wending its way through the country’s judicial system. The popular head of the investigation, Sérgio Moro, was an unknown judge on the 13th Federal Court until 2014, when he began to publicize the sordid details of corruption in Brazilian politics—and not just among those in the ruling Workers’ Party but politicians across the political spectrum. The elevation of Lava Jato from a provincial city to the highest courts in the country—without getting derailed by the many powerful enemies seeking to quash the investigation—speaks to the vigor of Brazil’s judiciary from the top to the bottom.

Moro has since been tapped to join Bolsonaro’s cabinet to fight organized crime and corruption. He has stated that he views joining the government as his best chance to ensure lasting progress in the fight against corruption. Moro has a wealth of political capital to wage his campaign, and he will most likely have high-level support for his efforts to strengthen judicial capacity. Bolsonaro himself understands how central this fight is to his electoral mandate. It is clear that a major part of why he won the presidency is that Brazilians were fed up with corruption and wanted a radical shakeup of politics in Brasília. The president-elect managed to parlay his untainted image, despite almost 30 years in politics, into one of an anti-corruption crusader unwilling to play politics as usual.

Bolsonaro’s promise that he would allow Moro to investigate even someone in his own family thus seem credible. As for Moro, it seems unlikely that he will use his post for partisan political attacks. Instead, Moro is guided by the legacy of Italy’s “mani pulite” (“clean hands”) operation. His now-famous article on the operation demonstrates that he views the anti-corruption campaigns in each country as analogous and desperately wants to keep Brazilian politics clean.

Brazil’s judiciary will go on as an independent force without Moro as its face. It already has new leads regarding illegal and systematic diffusion of negative propaganda about Fernando Haddad, Bolsonaro’s top presidential opponent, on social media platforms, which was potentially funded by corporations barred from participating in Brazilian politics. The judiciary has vowed to uncover the extent to which Bolsonaro and his family were personally involved.

Also keeping the new administration in check will be the prosecutor general, who heads Brazil’s Public Prosecutor’s Office. The president appoints the prosecutor general, who cannot be removed without an impeachment process similar to that for the president. The top prosecutor is thus able to bring charges against the head of the government, as happened to sitting President Michel Temer, who was the subject of corruption charges brought by Prosecutor General Raquel Dodge. Dodge has also spoken out about racist comments Bolsonaro made during the campaign about descendants of Afro-Brazilian slaves.

These developments, as well as the history of Brazil’s robust judicial engagement, ought to keep in check Latin America’s newest caudillo figure, lest he become the latest target of impeachment in Brazil’s young democracy.

Ryan C. Berg is a research fellow at the American Enterprise Institute, where his research includes Latin American foreign-policy issues.