By Marcelo Bermolén,
Professor at Universidad Austral’s School of Politics, Government and International Relations.
Similarities and differenceS
Brazil’s Judiciary carries out its duties even with the Workers’ Party in power.
From LAVA JATO to “the k money route”
Many Argentine citizens watch in awe as, in their neighboring country, an ordinary federal judge, Sergio Fernando Moro, renowned as incorruptible, corners Brazil’s political system and indirectly drives its current President to an impeachment that could legally remove her. While Argentina buzzes with the potential start of a local-style mani pulite (“clean hands”) process, it may prove useful to look at the similarities and differences between both processes.
Brazil and Argentina share the sad existence of high political echelons that are prone to corruption and power abuse. Both countries also feature a group of business leaders who tend to make dealings with the State from a beneficial stance that is often far from legal. In both countries, corruption has become increasingly professional, supported by money and power. Public work projects, State-owned companies’ contracts, questionable invitations to bid, overpriced or spurious billing, bogus outsourced services, offshore companies, dismantled or numbed control agencies, ubiquitous bribes and payoffs, money laundering, hidden warning reports, shady political campaign funding, and growing drug trafficking are but a few of the similarities of the corrupted core besieging both nations.
It is also true that both societies fail to escape an identical behavior that proves hard to understand. They lack a collective awareness of the paramount importance of sound institutions, turning a blind eye to corruption when their economies thrive and adopting a more unyielding attitude for this scourge in economic downturns. However, both peoples share a social dismay at the carefree mismanagement of public funds that has driven them to raise their voices in widespread outcries. And when the people yell, systems are moved.
Brazil is headed towards Dilma Rousseff’s impeachment at the Senate, which could lead to her suspension for 180 days in May, forcing her resignation and placing the current Vice President Michel Temer, from the powerful Brazilian Democratic Movement Party (PMDB), at the country’s helm. Temer himself and a large share of the representatives who indicted her and most of the senators who could impeach her are suspected or being investigated themselves on corruption charges. A recent survey shows that, if President Rousseff is indeed removed from office, most Brazilian citizens view the resignation of all current top officials (including the Vice President) and a call to immediate elections as a viable solution to complete the Presidential term than ends on January 1, 2019.
In turn, Argentina shows its own political topmost ranks –including the former President Cristina Fernández de Kirchner and the new President Mauricio Macri– with charges brought against them by the federal judiciary. For the time being, nobody believes that the Panama Papers scandal could lead the current President to his impeachment, while CFK faces a number of rekindled investigations for corruption and money laundering allegations during her terms in office and the administration of her deceased husband, Néstor Kirchner.
The key difference separating both countries lies –no less– in the way their federal judiciary systems operate. Judge Sergio Fernando Moro, a money laundering expert, is looking into one of the greatest state corruption scandals in Brazil’s history, with the exposure of massive wrongdoing at Petrobras and involving large companies as well as a sizable number of politicians, including the former President Lula da Silva. Judge Moro has imprisoned the now repenting and formerly powerful businessman and heir to Brazil’s largest construction company, Marcelo Odebrecht, who was sentenced to 19 years and four months in jail for money laundering and conspiracy crimes and who, oddly enough, is also mentioned in the Panama Papers. As may be inferred, these same patterns are repeated and investigated –with other suspects– in Argentine courts.
Judge Moro was able to make such headway by taking advantage of a number of beneficial circumstances –many of them associated with a strengthened judicial system. His professional knowledge on the intricate world of money laundering was compounded by his moral fortitude, his ability to build specialized teams and his restless investigative pursuit. Solving this puzzle by modules, joining lawsuits, preserving evidence, protecting witnesses and repented felons enabled him to build a strong case that proved effective as a result of his independence and his resilience against attacks from politicians.
In our country, the so-called federal judges on Criminal Matters, who are also known as “power judges”, have little in common with that description. They are responsible for a highly inefficient system when it comes investigating corruption and money laundering crimes, allowing the statute of limitations to expire in some cases, which leads the acquittal of accused parties, and having one of the world’s lowest conviction rates. In other words, they are self-appointed impunity enablers. Savvy lobbyists and keen readers of social moods, they speed or delay case progress depending on their agreements with political influence brokers and their need to stay on the bench.
Used to putting on a big show at the beginning of their investigations or under journalistic pressure, these judges split cases in order to distribute liabilities and to justify the delayed treatment of some matters. It suffices to look at some judgments by the Federal Court of Appeals in Criminal and Correctional Matters (particularly the Second Chamber), pointing to the many mistakes made by district court judges and even advising them on how to move forward with investigations. The repeated nullities earned by these magistrates raise the question as to whether these are caused by their professional ineptitude or by something else. Everything is tangled up in one large mess: evidence leaked to the press at the same time it is presented prosecutors, public announcements of issued search warrants, relatives of current public officials and intelligence services lurking in the background, cases that come to an end at the speed of light, while baby steps are taken in others.
While Brazil merges into one great force pushing President Dilma Rousseff to an impeachment trial, Argentina has been unable to impeach its most challenged judge in decades, who has the largest number of claims filed against him. Argentina’s current administration agreed to let the former Federal Judge Norberto Oyarbide to make his grand exit by resigning, despite the many misconduct and poor performance allegations against him, foregoing the chance to have him stand trial in an exemplary move.
Two countries with many similarities and a key difference: Brazil’s judicial system. As a result, many Argentine citizens wonder if there is a Judge Moro in the country’s fold –a judge who is able to uphold the values of justice, ethics, and the Republic.
Source: article originally published on Perfil newspaper’s printed edition, Friday, April 29, 2016.