Fighting corruption is an unfulfilled promise of democracy – 09/29/2024 – Marcus Melo

The monocratic decisions of Dias Toffoli annulling unequivocal evidence of corruption involving OAS, and of Ricardo Lewandowski, former judge of the Supreme Court and now Minister of Justice, enabling appointments at Petrobras, contrary to the State Law, remind us of the phrase with which Faoro concludes The Owners of Power: “our society –’a skeleton of air’— is covered by the ‘rigid tunic of the inexhaustible, heavy, suffocating past’. And this past is, to a large extent, the past of impunity and interventionist statism , to which it is umbilically interconnected”.

The New Republic was inaugurated under the slogan of combating impunity: “Corruption is the termite of the Republic. A republic soiled by unpunished corruption falls into the hands of demagogues who, under the pretext of saving it, tyrannize it. Don’t steal, don’t allow stealing, put Whoever steals goes to jail, that is the first commandment of public morals.” The words of Ulysses Guimarães, in his speech promulgating the 1988 Constitution, attest to the centrality that the issue had assumed on the public agenda. And it couldn’t be any different, as corruption and impunity are two sides of the same coin: abuse of power. In democracy it does not have the visibility of violence and arbitrariness under authoritarianism; softer, it is more insidious.

Ulysses’ reference to demagoguery foreshadows the role it will play 30 years later, and, thanks to social media, with a muscularity that, it is worth recognizing, no one would have been able to anticipate. The elimination of corruption is, therefore, an unfulfilled promise of democracy.

Unfulfilled promises are the breeding ground for populism, on the left and on the right. The rejection of the status quo —widespread civic cynicism— leads to a bet on adventurers. The decisions that are being taken now certainly sow crises ahead and affect the institutional reputation of the STF.

In “Judicial Reputation: A Comparative Theory”, Nuno Garoupa and Tim Ginsburg show that the institutional reputation of the Judiciary is crucial because, in democracies, “it is a power without the control of the sword or of the budget” —in Hamilton’s famous formulation—, and compliance with his decisions is fundamentally based on his reputation. When the Judiciary, or more specifically the higher courts, enjoys a positive reputation, its degrees of freedom increase.

Garoupa and Ginsburg use game theory (principal-agent models) to examine the strategic interaction between judges, higher courts and their external and internal audiences. There is a collective action problem involving the reputation of individual judges and the institution as a whole: justices who maximize their individual interests ignore collective institutional harm.

Dias Toffoli and Lewandowski’s decisions seem to have been made with a specific audience in mind: the Executive Branch and its occupant. Which brings us back to Faoro.

And the “centralizing tunic” that affects everything: “the system makes itself compatible, by immobilizing parties, elites, pressure groups, with the tendency to formalize them… the ruling layer acts in its own name, using the instruments politicians derived from their possession of the state estate”.

LINK PRESENT: Did you like this text? Subscribers can access seven free accesses from any link per day. Just click the blue F below.