Few institutions in Brazil are as highly regarded as Operation Car Wash. For 95 percent of Brazilians, the investigation should continue and scrutinize the country’s entire political class. In over four years, Brazil’s most comprehensive take on corruption has amounted to 140 convicted defendants. Guess how many of those were politicians in office?
You guessed right: none.
In Brazil, highly ranked officials enjoy a privilege known as “foro privilegiado” – our parliamentary immunity. It grants them the right to only be prosecuted and tried by the Supreme Court. This could in theory be quite dangerous for politicians, since Supreme Court verdicts cannot be appealed. But the immunity helps politicians to avoid any consequences for their actions.
The Brazilian Supreme Court is perhaps the world’s most overburdened court system. Each of the 11 justices must handle over 12,000 cases a year – which can range from crimes attributed to the president to divorce custody battles over pets. As a result, approximately one-third of all cases against politicians at the federal level are dismissed after reaching the statute of limitations.
Even when this is not the case, the justices can prove to be extremely favorable to the defense. According to a survey by think tank Fundação Getulio Vargas, indictment requests were only accepted in just in 5.6 percent of cases between 2011 and 2016. And only 0.74 percent of defendants were actually convicted.
Justices want to end parliamentary immunity. Congress strikes back
On May 2, however, the Supreme Court justices could revoke such a privilege. The Court will resume a trial that began in mid-2017. So far, eight justices have voted on the matter – and all eight are in favor of applying restrictions to the privilege. According to their understanding, the benefit would only be valid for crimes committed during the exercise of a term – and related to the office. It means that a congressman accused of domestic violence, for example, would not be covered by the immunity.
While that understanding is certainly a step forward, it is worth noticing that this change would only affect the 594 members of Congress (513 representatives and 81 senators) – which amount to a mere 1 percent of all 54,990 authorities who currently enjoy this privilege. Judges and prosecutors, meanwhile, represent 79 percent of those entitled authorities.
As the Supreme Court advances towards stripping Congress of its right to evade justice, politicians are attempting to force the judiciary system into tasting some of its own medicine. Congress has prepared an amendment to the Constitution revoking the special immunity for all officials. No one would be spared. Judges and prosecutors are calling the maneuver a “gag order” aimed at intimidating them.
The origins of Brazil’s parliamentary immunity
Special immunity for highly ranked officials is as old as Brazil itself. The country’s first Constitution, from 1824, had already created a privileged caste of bureaucrats. But, as House legislative consultant Newton Tavares Filho points out in a 2016 paper, parliamentary immunity reached its apex in Brazil after the 1988 Constitution. Never before had the privilege encompassed so many people.
Just out of a 21-year-long dictatorship that impeached and incarcerated many politicians for what they said, legislators wanted to protect representatives’ freedom of speech. The idea was simple: politicians, judges, and prosecutors should not be subjected to external pressures that could influence their actions in office. That explains why they would remain out of the jurisdiction of lower courts, where political rivals were more likely to interfere.
How other countries handle parliamentary immunity
A number of countries have adopted their own versions of parliamentary immunity, often requiring peer permission to prosecute elected officials. In many cases, though, the prerogative is limited to crimes related to the office and does not cover common crimes, as is the case in Brazil. The closest example to the Brazilian reality is Spain (another country riddled by corruption scandals involving senior government officials).
In Germany, members of the parliament cannot be prosecuted for their opinions inside the Bundestag. There are, however, limits, as in the case of slander. True immunity is enjoyed only by the country’s president, who has a limited role in running the government.
France adopts a similar model, however it prohibits the arrest of politicians without the permission of the Parliament. Italy and Portugal both take a similar approach, although the Portuguese only prosecute if the crime is intentional.
In the U.S., no politician is beyond the reach of the justice system. That’s why Donald Trump could be in trouble. Trump’s lawyer, Michael Cohen, reportedly paid 130,000 USD to a pornographic film actress so that she would keep quiet about her affair with the president. The money was paid just prior to the 2016 election, and could be considered an illegal contribution to President Trump’s campaign.
If Trump were Brazilian, though, he would be safe right now. Just ask Michel Temer.
Norway, however, offers parliamentary immunity to elected officials – and the king is completely out of the judicial system’s reach. But no one is going crazy about that.
The fact remains that the main problem might not be with the immunity itself, but rather with its reach. Right now, even politicians caught in the act are virtually untouchable. Such is the case of Senator Aécio Neves. Although he was taped asking for 2 million BRL from a corrupt businessman, he has not suffered any consequences.
The Supreme Court will decide today if he should face trial for corruption – but we’re months, if not years, away from a verdict.