Fábio Medina Osório, for “O Globo”: Car Wash and Brazilian democracy

Democratic regimes are characterized by a series of structuring elements. The idea of government by the “majority” is a minimum requirement for establishing a representative democracy, but there are several formulas for arriving at a majority, and therein already lies a vast field for diagnosing a diversity of models.

There is consensus that, beyond the majoritarian principle, there are counter-majoritarian forces necessary to democratic regimes, to legitimize government of the people and by the people, that can produce controls, especially because the majority does not have a blank check to govern.

In this context, democracies must enable instruments for building consensus, or even channels for the technical resolution of conflicts, resting essentially on the root of the division of functions and powers, as well as on the primacy of the laws and rules that guide the prohibition of arbitrariness by majorities.

Anti-corruption mechanisms are an important brake on those in government in contemporary democracies. For that very reason, impeachment proceedings are common in democratic regimes.

Likewise, the arrests of high officeholders or powerful businesspeople are not events that shake democratic regimes. On the contrary, they show that no one is above the law.

Brazil, beyond doubt, is a consolidated democracy. The branches of State function normally. Elections in our country have been audited by the Superior Electoral Court, and political parties are already moving toward the 2018 elections.

Moreover, an elected president was subjected to impeachment proceedings by Congress (also elected by the people), under the control and supervision of the Supreme Court. And the country has been withstanding one of the largest anti-corruption operations in the world, carried out by its own institutions, with free coverage by the media.

The strengthening of the so-called control institutions may perhaps have been one of Brazil’s greatest achievements in recent years, and I am not referring only to the Judiciary and the Public Prosecution Service, pillars of Lava-Jato. I am speaking of the Federal Police, the Federal Court of Accounts, the Federal Revenue Service, the Council for Financial Activities Control, the Central Bank, the Office of the Comptroller General, the Securities and Exchange Commission, the Administrative Council for Economic Defense — institutions that tend to act, more and more, as authentic independent administrative authorities.

Its technical areas excel in quality and excellence. The Public Prosecution Service before the Courts of Accounts is also a body that has been decisive in the fight against corruption, and has not always received the attention it deserves. I can say the same of the Federal Public Law Office, which plays a remarkable leading role in defending the public treasury.

It would be positive for Brazil to begin to recognize its merits before the international community. Lava Jato did not destroy the companies. The problem was the lack of “effective compliance” in the companies involved in criminal schemes and of a more robust framework for leniency agreements. Do control mechanisms need to be improved? Evidently so. The oversight authorities are likewise not above the law.

However, what is perceived, in numerous situations, is a retaliation movement under way, on account of interests affected by Car Wash, and the insistent attempt at spurious attacks on members of the oversight institutions and on the Brazilian democratic regime. It reached the point of alleging that the arrest of a former president would mean the end of democracy. And attacks on the prerogatives, rights, and guarantees of public officials who perform oversight are frequent. This is a dangerous path.

Fábio Medina Osório is a jurist and was a minister of the Office of the Attorney General of the Union