Reduced Immunity

If a new bill is approved and the law is changed,
it could have a big effect on next year's elections:
a number of members of Congress could find themselves
being prosecuted and, in some cases,
facing jail sentences if convicted.

John Fitzpatrick

We may be witnessing the beginning of a new era in Brazilian politics, with the recent approval by the House of Representatives of the first stage of a law lifting parliamentary immunity from prosecution for elected representatives, except in special cases. A further vote is needed in the Lower House, and the Senate still has to give its backing, but these are expected to go ahead without any problem and the law could be in force by the end of the year.

Reformers have been calling for an end to the questionable Brazilian brand of parliamentary immunity for years, so why has it happened now? The law will end an absurdly wide interpretation of the generally accepted principle that an elected representative should be able to speak freely, without fear of prosecution or persecution. In Brazil this freedom goes further and covers any kind of prosecution, even on charges that have no connection with politics. The only way politicians can be prosecuted is through a complicated procedure, in which the Supreme Court must examine the evidence, then seek Congressional approval for the prosecution to go ahead. Politicians are pretty good at closing ranks and this approval is seldom forthcoming.

The justice authorities have no choice but to wait until the end of the mandate before acting. The weekly newsmagazine Veja singled out the case of a Senator who is said to have once disappeared with a R$12 million (about US$4.5 million) bank loan which he has never repaid. This Senator's mandate does not expire until 2007, and if he were to stand again and be re-elected to a further eight-year term, then nothing could be done until at least 2015. Can anyone imagine a prosecution going ahead after all this time?

There are currently almost 30 outstanding requests by various justice authorities against politicians, for crimes that have no bearing on their political activities. Under the new legislation, immunity will only cover areas directly linked to political matters. If this is approved and the law is changed, it could have a big effect on next year's elections: a number of members of Congress could find themselves being prosecuted and, in some cases, facing jail sentences if convicted.

There are several reasons why this move is good for Brazilian democracy, apart from the obvious need to end an injustice. First of all, the voting figures in the Lower House were impressive—412 in favor and only 9 against. The Senate is also expected to pass it by a wide margin. Considering that members of both houses have been involved in scandals and allegations of corruption, one might have expected greater opposition. However, the politicians seem to have accepted that the constant image of allegedly crooked politicians never facing justice was bad for their image, and bad for democracy. The wide margin might also mean that the overwhelming majority of elected representatives have nothing to hide. It might be difficult to persuade voters of this but, for once, let us be charitable and give politicians the benefit of the doubt.

Cynics might also say that the reason politicians approved the change was because it is cosmetic and, as so often happens in Brazil, legislation will not be enforced. We will have to wait and see, but the one important aspect of this new law is that justice officials will be able to make their investigations and press charges as they would with any other private individual, without needing to inform the political authorities or get their backing. At the same time, public prosecutors with initiative, ambition, or who just want publicity, will have a tool ready and waiting to be used.

Reformers have been calling an end to parliamentary immunity—often described as parliamentary "impunity"—for many years, so why has it happened now? There are no easy answers to this one, but I would like to propose a few suggestions. Politicians, especially younger ones, realize that the old system can no longer continue. In my opinion, one of the main reasons goes back to the constitutional change made during Fernando Henrique Cardoso's first mandate, to allow incumbent presidents, state governors and mayors to seek re-election. This move put an end to a system introduced in many Latin American countries to prevent strongmen hanging on to power, by limiting their mandate to one term at a time.

Cardoso was rightly accused of wanting to hang on to power, but as his first term was successful, and since he agreed to share the change with others holding elected positions at the executive level, he won overwhelming approval. The consequences of this were that incumbent leaders who wanted to stay in power had to campaign on their positive records in office. Incumbents could also no longer leave a string of debts for the next administration to tackle. This latter point was also tackled in another groundbreaking law on fiscal responsibility, limiting the amount local governments could spend and introducing the possibility of criminal charges against those who overspend and leave the bill for the next incumbent to deal with.

The fact that Cardoso was re-elected in the first round showed that the electorate was prepared to reward a politician who had done a good job. In this case, it also allowed for what was possibly the smoothest transfer of power in Brazil's history. It may also explain why the devaluation of the Real in 1999, only a month into Cardoso's second mandate, did not bring the dire consequences which some observers had predicted. The promise of a continuation of the same policies with the same president and same finance minister cannot be underestimated.

Another factor is next year's presidential and state elections, now less than a year away. The honesty factor will play a role, as Brazilians become more mature politically, and less willing to put up with the old-style political boss who used his office to enrich himself, family and cronies. Older voters recall how they were duped by Fernando Collor back in 1990 and will be more careful this time. Cardoso may not be charismatic or popular, and he has had to make a lot of backroom deals to ensure the continuity of his coalition government but, overall, he has been ethical and honest.

His PSDB party has also been fairly untarnished by corruption and its leading figures, like the late São Paulo state Governor, Mario Covas, Health Minister and possible presidential candidate José Serra, and Education Minister Paulo Renato Souza, all have reputations for honesty. The PSDB is still in the driver's seat and in a strong position to provide the next president.
It is more in line with the progressive social democratic parties in Europe than its main coalition partners—the PFL and PMDB—or the main opposition, the leftist PT, or Worker's Party. Neither the PFL nor the PMDB enjoy reputations as honest parties.

The PT, which in typical left-wing fashion thinks it is immune from corruption, is facing a crisis in Rio Grande do Sul where the state Governor, Olivio Dutra, is facing impeachment on various allegations of misconduct. If this affair is not settled quickly, it could damage the PT's reputation as an ethical party in next year's elections. The PT's probable presidential candidate, Luiz Inácio Lula da Silva, may be riding high in the polls but the party itself has not lived up to expectations, not only in Rio Grande do Sul but in São Paulo where the performance of the mayor, Marta Suplicy, has been amateurish and incompetent.

The media has also played an important role in bringing about this change. For a country where a large percentage of the population is illiterate or semi-literate, and a magazine can cost a day's wages, Brazil has an astonishingly large number of serious newspapers and magazines. Most of these publications are owned by groups with axes to grind, usually political. While they enthuse about the freedom of the press and the need to safeguard democracy, they are generally pompous, biased, and willing to run stories which have been leaked to cause problems for one side or the other. Media companies are often family-controlled, petulant, and potentially dangerous enemies, as many politicians have learned in the past.

Despite this hypocrisy, the Brazilian media has done a good job overall in exposing a lot of wrongdoing by politicians. The media has also been quick to exploit the Internet, not only as a way of spreading fact and opinion but to obtain fast feedback from readers. Magazines have published the e-mail addresses of politicians and encouraged readers to contact them directly. Politicians with nothing to fear should actually be grateful to the news media, as the Internet has improved contact between them and their constituents.

The Internet has also brought the outside world closer, and Brazilians are more conscious of how other democracies operate. They have seen Bill Clinton subject to a lengthy investigation over his extramarital affair and business dealings, George Bush's daughters fined for illegal drinking, and former U.K. minister Peter Mandelson fired for lying to Parliament. This case received a lot of publicity in Brazil, as Mandelson has a Brazilian boyfriend. If other democracies can punish their politicians, or the daughters of their presidents for wrongdoing, then why can't Brazil?

Brazilians were proud to see Cardoso address the United Nations and the French National Assembly recently. Cardoso wants Brazil to have a permanent place on the Security Council, and most Brazilians want it too. Might rather than right decides the make-up of the Security Council, and two of its permanent members, China and Russia, are certainly not true democracies. Brazil does not have the military might to gain a place, but if it consolidated itself as a genuine democracy then this could change. One only has to look at how the European Union has helped develop democracy in places like Spain, Portugal and Greece.

One law will, of course, not end corruption and bring Brazil the international recognition it craves, but one must hope that this legislation will shortly be on the statute book, so that voters see that their representatives are no longer prepared to hide behind an unjust protective shield.

Finally, one man who has certainly benefited from this process has been Lower House President Aécio Neves, a member from the state of Minas Gerais. In less than a year in office, he has done an impressive job. Under his stewardship, three important measures have gone though: the parliamentary immunity law, an amendment restricting the use of presidential decrees—so called "provisional measures" meant to be used in emergencies but thrown about quite casually by Brazilian presidents over the years, and a project to create an ethics committee. Neves is a member of Cardoso's PSDB and received his reward recently, when he was invited to join President Cardoso on his recent, highly successful trip to Europe and the U.S.

During the European trip, he visited the Vatican and was photographed being blessed by the Pope. What was he praying for, one wonders, as he knelt in front of the Pontiff? Neves has a lot going for him. He is young, photogenic, and the grandson of Tancredo Neves—the first civilian president elected by Congress after the end of military rule in 1985, who became ill and passed away before taking office. Aécio is a rising star with quality credentials and, hopefully, good ethics. He could be a future president.

This material was originally published in InfoBrazil (www.infobrazil.com) 

John Fitzpatrick, the author, is a Scottish journalist who first visited Brazil in 1995, and has been based in São Paulo ever since. His career in journalism that started in 1974 includes stints as a reporter in Scotland and England, deputy editor of an English-language daily newspaper in Cyprus, news editor of a radio station in Switzerland, financial correspondent in Zurich and São Paulo, and editor of a magazine published by one of Switzerland's largest banks. The author is an occasional guest Editor on InfoBrazil. He currently runs Celtic Comunicações, a São Paulo company which specializes in editorial and translation services. You can reach him at Johnfitz@osite.com.br

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