South America has been a special part of my life for four decades. I have lived many years in Brasil and Peru. I am married to an incredible lady from Argentina. I want to share South America with you.
A tragedy highlights the growing political influence of the supreme court
ON JANUARY 19th Brazil lost a crucial man at a crucial moment. Teori Zavascki, a justice of the supreme federal tribunal (STF), died along with four other people in the crash of a small aeroplane off Brazil’s south-eastern coast. He leaves behind a devastated family, legions of admirers—and the most explosive dossier of cases before the country’s highest court.
Mr Zavascki became a household name—in spite of the string of consonants inherited from his Polish forebears—because he oversaw investigations into the corruption scandal centred on Petrobras, the state-controlled oil company. Known collectively as Lava Jato (Car Wash), these have dominated politics since 2014. They led indirectly to the impeachment last August of the president, Dilma Rousseff; she was not implicated, but her Workers’ Party (PT) was. Before he died Mr Zavascki was about to authorise plea-bargaining deals with businessmen that could lead to more prosecutions of politicians.
Michel Temer, who succeeded Ms Rousseff, must now appoint a replacement. He was not expecting to have a hand in shaping Brazil’s highest court. None of the 11 justices would have reached the retirement age of 75 before the end of his term in 2018. Mr Temer must now make a decision that will affect not only Lava Jato but the character of an institution that is playing an increasingly prominent—and political—role in Brazil’s public affairs.
The STF is a hybrid, part constitutional court and part final court of appeal. Its most controversial decisions stem from its third role: to try politicians with parliamentary or ministerial immunity. In November 2015, for instance, Mr Zavascki ordered the arrest of a PT senator for conspiring to help a Lava Jato witness flee the country. Last May he removed the speaker of the lower house of congress on the grounds that he had used his position to interfere with Lava Jato probes. Both rulings, upheld by Mr Zavascki’s fellow justices, set precedents. Citizens cheered.
The court’s popularity has risen as that of politicians has plummeted. Of congress’s 594 members, 35 are targets of Lava Jato inquiries; dozens more are accused of other misdeeds. Leaked depositions seem to implicate Mr Temer and several cabinet members, though all deny wrongdoing. In surveys of public confidence in professions, judges come way ahead of politicians (though well behind firemen, the most trusted group). Sérgio Moro, a lower-court judge who investigates Petrobras miscreants, is a national hero.
When Brazil’s constitutional referees attract such adulation, there is reason to worry. Teori Zavascki was one of the soberest. More typical is the grandstanding Marco Aurélio Mello, who gained notoriety in December by abruptly ordering the speaker of the senate to resign over embezzlement charges. He did not consult his fellow justices and was overruled by them. The chief justice, Cármen Lúcia, stunned legal scholars recently when she suspended a federal order to block an account belonging to the state of Rio de Janeiro, which had missed a loan payment. Her efforts to end massacres by gangs in prisons have made her famous; she is sometimes tipped as a contender for the presidency.
The judges’ widening political role is not entirely their doing. The growing polarisation of politics puts pressure on the STF to act as an arbiter. Brazilian justices cannot throw out a case, however absurd. Each has 7,000-10,000 pending; the United States’ Supreme Court hears a few dozen a year. Throughout Brazil’s political crisis, the court’s willingness to hold politicians accountable has helped sustain citizens’ trust in democracy.
But the court’s growing assertiveness is also a danger to democracy, contends Rubens Glezer of FGV Law School in São Paulo. Justices speak too much in public, often rashly. Live broadcasts of STF sessions amplify large egos. Cameras make it harder to concede mistakes. Some court-watchers have suggested removing TV Justiça, a public broadcaster, from the courtroom. Others talk of turning the STF into a narrower constitutional court akin to Germany’s, or moving it back to Rio de Janeiro, the capital before 1960, to put distance between the judiciary and government’s other two branches in Brasília.
Ideas for changing the court’s role are worth considering, but not right now, when they could be construed as interfering with Lava Jato. To avoid such accusations, Mr Temer has wisely said that the Lava Jato file should not pass to the judge that he appoints to succeed Mr Zavascki (as it normally would) but to one of the current justices (which is permitted in exceptional circumstances). That person, in turn, would be wise to emulate the understated doggedness of Teori Zavascki.