The following is a guest post by Eduardo Soares, a foreign law specialist from Brazil who covers Portuguese-speaking countries at the Law Library of Congress. Eduardo has previously published posts about the Brazilian law collection, capoeira and the law, a Law Library report on citizenship pathways and border protection, highlights of the Law Library’s collection of materials related to the development of the civil law system, and the new civil procedure code in Brazil.
My last blog post provided information about the various laws in Brazil that are involved in the fight against corruption. In today’s post, I am taking a different approach by providing some first-hand knowledge of the laws and institutions from a Brazilian Public Prosecutor.
Mr. Leonardo Augusto de Andrade Cezar dos Santos, a Public Prosecutor from the state of Espírito Santo, recently visited the Law Library of Congress. At the time, he was a visiting fellow at the Federal Judicial Center in Washington, D.C. Mr. Santos is conducting research on corruption and the rule of law with a focus on the prevention, investigation, and punishment of corrupt practices for his doctorate degree. Being aware of his background and interests, I took the opportunity to sit down with Mr. Santos to discuss the Brazilian legal framework currently in place to fight corruption. The following is a summary of our conversation.
1. What are the economic effects of corruption?
Our conversation started with the effects of corruption on a country. Mr. Santos observed that the economic effects of corruption in any country are devastating, but are even worse in developing countries like Brazil. In this regard, Mr. Santos mentioned that, according to a study prepared by the Federation Industry of the State of São Paulo (Federação das Indústrias do Estado de São Paulo), corruption costs Brazil between R$41.5 billion (approximately US$12 billion) and R$69.1 billion (approximately US$20 billion) a year.
According to Mr. Santos, the recent scandal involving a government-owned oil company revealed a loss of R$6.2 billion (approximately US$1.72 billion) for the period between 2004 and 2012. This was allegedly caused by corrupt practices involving the company’s representatives, government officials, political parties, and big construction companies.
Mr. Santos stated that a corrupt environment undermines democratic values and the credibility of the State, which in turn deters foreign investment in the country. As a direct consequence, he said, developing countries suffer more economic impacts than developed ones.
2. How strong is the legal framework for fighting corruption in Brazil in practice?
As I also noted in my post on the legal framework, Mr. Santos pointed out that it took Brazil seven Constitutions and 488 years, since its discovery in 1500, to achieve a long lasting state of democracy.
When I asked about the strength of the institutions derived from the constitutional provisions drafted by legislators, such as the judicial branch, the Public Prosecutor’s Office (Ministério Público), the General Controller of the Union (Controladoraia Geral da União), and the Audit Tribunal of the Union (Tribunal de Contas da União) to name a few, Mr. Santos said that these institutions are becoming more and more effective. As an example, he mentioned that the recent corruption scandals in the country were followed by the investigation and prosecution of many people, including politicians. Such an outcome would have been unimaginable in the past.
Mr. Santos further explained that after the enactment of the Constitution in 1988, legislators created several tools to fight corruption, including procedural and non-procedural mechanisms.
Another example highlighted by Mr. Santos related to the change in perception about fighting corruption, with many agencies now encouraging their members to study the subject under a different perspective. Mr. Santos himself has witnessed this new focus. According to him, thanks to this new mentality, he was able, as a member of the Public Prosecutor’s Office, to study the means to fight corruption abroad with the commitment to return to Brazil and apply the knowledge he acquired.
Mr. Santos acknowledged the impact that studying abroad has had on him by quoting Justice Louis D. Brandeis of the U.S. Supreme Court, who said: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
In terms of the legal tools, Mr. Santos said that plea bargain agreements (colaboração premiada) and leniency agreements (acordos de leniência) are two new products of a legislative initiative to fight corruption. The laws that created these new tools were enacted in August 2013 and are being put to good use by the judiciary and law enforcement agencies. Despite constitutional principles and the goodwill of the judiciary and law enforcement agencies to fight corruption, before 2013 the mechanisms available in this regard were not very effective. The history of many countries shows that a democratic regime is dependent upon a strong legal framework, which, in the case of Brazil, started on October 5, 1988, the day the Brazilian Constitution was enacted. The seeds planted at that time are now germinating and bearing fruits.
There are other things happening besides legislative initiatives. Pursuant to article 37 of the Constitution, which commands the public administration to obey the principles of legality, impersonality, morality, and transparency, the government now participates in several domestic and international programs designed to hold the government and its officials accountable. In this regard, Brazil enacted a Decree in 2011 (Decreto de 15 de Setembro de 2011), which created the National Action Plan on Open Government (Plano de Ação Nacional sobre Governo Aberto) to promote actions and measures aimed at increasing transparency and public access to information, to improve the quality of public services, and to strengthen public integrity.
The direct consequence of this non-procedural mechanism is that now the population has immediate access to what is happening behind the scenes in the government.
2. What are the consequences of the new mentality around fighting corruption?
According to Mr. Santos, the mindset of people is changing along with the development of the stronger institutions and a solid legal framework that reinforces constitutional principles and brings institutional and economic credibility to the country. Credibility is one of the pillars of a strong democracy, and a strong democracy is the best way for a country to thrive, as it attracts domestic and foreign investors who feel they can trust the system in place.
A strong legal framework coupled with active institutions has led to an increase in the perception of the existence of corruption among the Brazilian population, a phenomenon that has never happened before. Although bad for the country’s image, corruption perception has served as a wake-up call and a useful instrument to gauge the strength of the institutions.
As a consequence of the recent corruption scandals and the mechanisms that are in place to combat corruption and to publicize public affairs, the perception or recognition of corruption has increased in the country. However, according to the 2015 Transparency International Index, Brazil dropped seven positions in the ranking and now occupies 76th place overall.
When asked about Public Prosecutor’s Office initiatives to change the law, Mr. Santos told me that due to the difficulties prosecutors face in gathering evidence in corruption cases, the Public Prosecutor’s Office started a movement back in July 2015 to change the law in this regard. The Office used the popular initiative instrument that resulted in the Clean Slate Law mentioned in my previous post, and was able to present a bill of law to the Chamber of Deputies that was signed by more than two million people. It is fair to say that Brazilian citizens cannot live with corruption anymore and, in a democratic way, Brazilians are contributing to the curbing of corrupt practices in the country.