Moro and Car Wash

Judge Sergio Moro takes part in the congress of the ABDE (Brazilian Association of Law and Economics), in Porto Alegre (RS) – Fernando Gomes/Agência RBS/Folhapress

24/09/2017

Recently, in a statement reproduced in the newspaper “The New York Times”, federal judge Sergio Moro said that the case known as “Lava Jato” represents the end of impunity as a rule in Brazil, especially for corruption and related crimes. But, according to him, it remains to be seen whether there will be a permanent or merely temporary transformation.

In this scenario, it is worth reflecting: agree or not, Sergio Moro symbolizes one face of the new Brazil, although Operation Car Wash (Lava Jato) proves to be a complex and sophisticated mechanism, involving respected institutions and qualified, ethical and selfless professionals.

We are talking about civil servants and members of the Federal Public Prosecution Service, the Federal Court of Accounts, the Office of the Comptroller General, the National Treasury Attorney General’s Office, the Office of the Attorney General of the Union, the Council for Financial Activities Control, the Administrative Council for Economic Defense, the Federal Revenue Service and the Federal Police.

It is also worth highlighting the role of appellate judges and Justices of the Superior Courts, who have been ratifying important positions in the fight against impunity.

I have always sought to defend the compatibility of the fundamental rights of the accused with the defense of the general interests of the community, and this is beginning to prevail in Brazil.

The affirmation of Sergio Moro's jurisdiction made it possible for the unlawful acts to be seen in an integrated and coherent way, something essential to perceiving organized crime and its multiple strands.

He is a technical magistrate, with a unified and complete view of the facts covered by Car Wash, known for his upright and honest profile.

A central characteristic of Judge Moro — no one disagrees — is his dedication to the meticulous and deep, even detailed, study of the cases under his jurisdiction, which certainly made a difference to the operation’s success from its very beginning.

Even Sergio Moro’s opponents recognize in him some basic traits, inherent to a good judge: he grounds his decisions consistently and knows well the law applicable to criminal matters, especially as to “white-collar” crimes.

Criticism and disagreement are inherent to the legal profession, as are possible mistakes that can be corrected on appeal. Hearings in these criminal cases are usually recorded and public, showing transparency and the republican manner in which the proceedings are conducted and in which lawyers are treated.

Car Wash placed Brazil at a level of positive visibility on the world stage, including it in the roster of countries committed to combating corruption.

One consequence of this new culture is the vision of State institutions, which is beginning to take root in society.

The anti-corruption agenda does not belong only to the Judiciary and the Public Prosecution Service, but also to the Executive Branch, whose arms, through the Federal Police and other bodies, have taken an active part in this construction, notwithstanding the lack of understanding of part of the political class.

In a recent lecture, former president Fernando Henrique Cardoso recalled that some institutions, previously considered government institutions, came to be recognized as State institutions.

This happened with the Judiciary, with the Public Prosecution Service, and now with the Federal Police, which is seeking more budgetary and administrative autonomy.

Given this new reality, the private sector also becomes responsible for fighting corruption, through requirements of corporate integrity and respect for anti-corruption legislation.

This is another effect of the post-Car Wash (Lava Jato) era and of Brazil’s adaptation to imperatives of the global system. Private companies need to combat unlawful practices and cooperate with public authorities in this confrontation.

Judge Sergio Moro has a great deal to do with this entire new anti-corruption culture in Brazil. It can be said that he is part of this transformation, even if only as a “face” or symbol of this Brazil that may emerge with a powerful economic agenda linked to the solidity of democratic and republican institutions.

So, what are the threats to this entire ongoing civilizing process? One risk would be institutions confusing autonomy with corporatism, arbitrariness and a lack of limits on their actions, falling into a kind of dazzlement with the spotlights.

Another threat would be legislators acting in their own cause, or those under investigation attempting to deconstruct the operation through attacks on the reputation of investigators and judges, making use of political and economic power.

The population will say, in 2018, the course to be taken. Everything indicates that this path will not suffer setbacks, since society, through the press and social media, will remain attentive and vigilant. Citizens will exercise, by their vote, their choices guided by increasingly critical and mature judgments.

However, democracy is not exhausted in the vote. As Eduardo García de Enterría, one of the greatest contemporary jurists, already warned, the vote never was, and never will be, a blank check for the commission of crimes.

Thus, even for those elected, or those who passed public examinations, or those appointed, the warning applies that they are under the rule of the Constitution and that the law applies to everyone. Disobedience may result in loss of mandate, of public office and even imprisonment.

Democracy can never be confused with impunity. The message Brazil has been sending to the world is very clear: here a democratic Rule-of-Law State prevails.

FÁBIO MEDINA OSÓRIO is a jurist, former minister of the Office of the Attorney General of Brazil and holds a doctorate in Administrative Law (Complutense University of Madrid)