Opinion, by Michael Royster
RIO DE JANEIRO, BRAZIL – Last week, Rio State Assembly (“ALERJ”) voted, 39 to 19, to release three of its officers from jail, where they had been sent by a unanimous vote of the Federal Appeals Court (“TRF”).
TRF had approved charges brought by Lava-Jato prosecutors, accusing the ALERJ officers of leading an ongoing conspiracy to cover up corrupt practices during the past ten years or more.
ALERJ based its decision on a case decided last month by STF, Brazil’s Supreme Court, involving the imprisonment of Senator Aécio Neves, likewise accused of engaging in criminal conspiracy to cover up corruption in years past.
In that fateful decision, by a 6-5 margin, STF held that although the courts could order a sitting federal legislator to jail, the legislature could overturn that decision.
Since that decision, a number of state and municipal legislatures have voted to release from prisons one of their own, on the theory that what’s good for the federal government must be good for state and local governments as well. ALERJ was only the latest in this line, but it has caused the greatest commotion.
The word used by critics of the Aécio and ALERJ votes is “corporativismo” which has no real equivalent in English. Historically, “corporativismo” was the basis of the Italian fascist movement, where the body politic is conceived of having three pillars—capital, labor and the government, which must remain inseparably bound together.
In Brazil, however, the phrase has come to mean something quite different. It is the binding together of people in a particular “corpus” or body, to protect one of their members; in that sense, it is similar to “esprit de corps”—the French phrase imported into English centuries ago to mean a spirit of bonding, fellowship or solidarity among members of the same class, guild or group.
In the corrupt view prevalent in Brazil today, criticisms against one of the body’s members must be denied by all the body’s members, because criticism of one is criticism of all members of that body.
When a legislator is charged with criminal activities, the “corporativista” legislature says that the prosecutors, the police and the judiciary must stand aside, for only the legislature can judge its members.
What this posture means, in practice, is that the class of people who are legislators are above the law. Under the rule of law, applicable to all citizens, when a court orders you to go to prison, you go to prison; you can appeal to a higher court, but you cannot appeal to your colleagues—particularly when, is is the case with ALERJ, most of them are your partners in crime.
As the shameless ALERJ decision shows, the disastrous STF decision allowing Aécio to go free has seriously undermined the rule of law in Brazil; furthermore, it endangers all the Lava-Jato investigations, insofar as they affect legislators.
Now, all corrupt legislators know that, even if they are charged by the courts, they will never go to jail, because their colleagues will protect their interests.
That is not “esprit de corps”; rather, it’s “corpus delicti”, defined as the “basic elements of a crime”. The legislators who voted to save their colleagues from incarceration have, themselves, participated in the crime.