The Failure of Counter-Majoritarianism in Brazil’s (Evolving) Legal Order

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Law has failed Brazil in a moment of decisiveness. Brazil’s judiciary, like any other, is a counter-majoritarian institution – the last check on the mercurial majorities represented by parliaments and presidents. Yet this basic premise has been lost to frenzied majoritarianism.

Yesterday, the prosecuting judge behind the ‘Car Wash’ scandal, Sergio Moro, acted in a decidedly majoritarian and legally irresponsible manner by releasing taped conversations between former and actual Presidents, Luiz Inacio Lula da Silva and Dilma Rousseff.

Judge Sergio Moro

Judge Sergio Moro

Regardless of whether Rousseff was harboring a fugitive of the law by appointing Lula to her top ministerial position, the release of a personal conversation, much less between presidents, was a serious blow to the rule of law in Brazil. We all have a right to a fair trial; not a trial by public opinion.

Tragic Loss of Credibility

Most tragically for Brazil, the release of the recordings undermines Moro’s credibility, which is intimately tied to his legal record and to the Federal Police and the Public Prosecutor. In short, this act settled the question of whether Moro was simply a steadfast applicator of the rule of law or an agenda-bent ideologue. Brazil’s angel of truth has fallen prey to hubris. The criminal justice system has gone too far.

It is a pity, but also understandable. Brazil’s institutions have been changing faster than its behavioral political culture.

Lagging Behind the Evolving Rule of Law

In the wake of June 2013 protests, two laws were enacted in two days that changed the course of Brazilian political corruption forever: the Anticorruption Law 12.846, and the Law on Criminal Organizations 12.850. Above all, these two laws provided for extensive and well-protected plea bargaining agreements (delação premiada). Plea bargaining is why the Car Wash scandal has not receded but instead continues to expand; every new charge buys new and at times exponential incriminations.

Neither politicians nor their private-sector corruptors knew what Congress approved during those two fateful days in August 2013, and they are now paying the price. These laws demand greater probity than the past or current political culture affords. Yet as Moro’s actions demonstrate, so too is the judiciary paying the price of adaptation. The new powers vested in the criminal justice system by these two important laws require level-headedness and impartiality – that which slipped away yesterday in a majoritarian tumult.

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