Institutional crisis

Brazil is going through complex times. A former Attorney General of the Republic confesses that he almost killed a Justice of the Federal Supreme Court (STF) and voluntarily gave up. The conduct, however, may constitute, in theory, an attack on national security norms. In addition, he confessed, at various points, to committing acts that border on criminal law and the law repressing administrative improbity, by being approached by public agents with proposals that he himself considered indecent and remaining silent about it, even as Attorney General. Evidently, the mechanisms of institutional reaction to such behavior may be questioned: what is the competence of the STF? what is the classification of the facts revealed? It seems that interlocutors of the then Attorney General tried to smother Car Wash and the investigations, and counted, up to a certain point, on the silence of the head of the Federal Public Prosecution Service.

In any case, it is inevitable to note that this is shocking information, which lays bare the rawness of the political power of the top leadership of the Federal Public Prosecution Service, and the need for stricter controls over this institution. To what control is the prosecutor general subject? This is a fundamental question in a democratic Republic. Recently, one observed President Bolsonaro’s well-founded concern with the choice of the PGR, carefully made after a long period of scrutiny. But the term of a prosecutor general cannot be a blank check. We must think about stricter and more democratic controls.

It is certain that, under the pretext of curbing abuses, fundamental rights cannot be trampled. In that sense, attention must be paid to the inquiry involving fake news, under way at the STF, with Justice Alexandre de Moraes as rapporteur. On what basis are people investigated by the STF, even though they hold no special forum privilege whatsoever? I believe it was a mistake by the STF to dismantle special forum privilege. Indeed, the Court should not only return to its original position but also extend this privilege to improbity actions. However, there is a kind of resumption of this privilege, with a highly innovative bias: privilege on the ground that the offended victim is an STF justice.

This is a disturbing unconstitutional innovation. An inquiry that investigates, on the STF's own initiative, threats against justices of that Court, covers any and every offense against members of the Federal Supreme Court, including even an attempted homicide interrupted by voluntary abandonment. And this attempt, thwarted by abandonment, authorizes, years later, the issuance of search and seizure warrants by the STF itself. Could the STF authorize its own competence to judge offenses committed inside its premises? Everything indicates that this is an anomaly and that the Court is legislating arbitrarily on matters of special forum, although the intentions are the best possible, since they seek to safeguard the dignity of the Court and the security of its members. After all, it was necessary to give a prompt response to the statements considered outlandish, disrespectful and demeaning by former Prosecutor General Rodrigo Janot, statements that, to some extent, could incite crimes against members of the STF.

Finally, in this context of crisis, one observes a continuous wearing down of the Lava Jato task force, likewise exposed to the scrutiny of public opinion in the face of the successive revelations by the site The Intercept. While it is certain that the evidence cannot be used in the judicial and administrative spheres, being of unlawful origin, it cannot be denied that, politically, it causes deep damage, especially because the interlocutors do not present a vehement and conclusive denial that the conversations are genuine. On the contrary, the indications point in the direction of their verisimilitude, demanding a permanent counterpoint as to their content, notwithstanding the gaps and lack of context. This continued use of the material allows a wearing down of the members of the MPF in the legal community and real risks to the operation, demanding of them, more and more, prudence in the measures to be taken. This crisis may give rise to improvements. The tendency is for arbitrary arrests, for example, to be reduced.

There is, moreover, a scenario of potential nullities in the operation, which can be attributed to the understanding of the Superior Courts and to a lack of caution at the origin. This perspective can improve the defense mechanisms in the operation. That is, a more rights-protective look in the conduct of the proceedings would suffice to avoid sterile debate over nullities in the Courts. Experience indicates that the stronger the guarantees of the defense, the lower the chances of nullities. It is impossible to ignore that the new Abuse of Authority Law will have effects on the imagination of the Judiciary and the Public Prosecution Service, amplifying prudence and levels of rational justification. Car Wash, in any event, will continue forcefully on its path of purging ethical and republican values, improving itself as an instrument for combating corruption. This operation is a cultural heritage of Brazil and must be preserved.

Fábio Medina Osório is a lawyer and was a minister of the Office of the Attorney General of the Union in 2016