The end of Lava Jato and the pathetic Barroso

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By LEONARDO AVRITZER*

The defeat of the “Curitiba vigilantes” is also the defeat of a mistaken interpretation of Brazil.

The decision of the STF by seven votes to two, corroborating the thesis of suspicion of Judge Sérgio Moro in the so-called “triplex” process, effectively represents the end of the Lava Jato operation. The main losers by the end of this inquisitorial way of combating corruption are the vigilantes of Curitiba who acted in collusion, Deltan Dallagnol and Sérgio Moro, and their partners in the STF.

The defeat of Lava Jato is also the defeat of a misinterpretation of Brazil, launched by Raymundo Faoro in the late 1950s in his book the power holders and rescued by the vigilantes of Curitiba. The thesis is that corruption is the biggest, if not the only, problem in Brazil and would explain the country's civilizing failure. Let's analyze Raymundo Faoro's argument to understand his expression in Lavajatismo.

The main thesis of the power holders is that the great element of the formation of the Brazilian State, which would explain the country as a nation, would be the formation of a patrimonial State that would open the way for the private appropriation of State resources. Faoro carries out two operations of dubious academic quality to defend this thesis: the first is to attribute this element to the Portuguese formation, still in the beginning of the last millennium, and to assume (supposedly based on the work of Max Weber) that this patrimonial element would have been transferred and reproduced in Brazil.

The second is to identify this element in all historical periods of our country. Thus, in a chapter considered by some to be the worst text ever written on the history of the Empire, he interprets the period as centralist, estates and patrimonialist, something that any undergraduate history student knows is wrong. For Faoro, liberalism (which, by the way, Lava Jato never professed because liberalism values ​​the right of defense) would involve a break with the patrimonial State.

Faoro thought it possible to interpret the formation of Brazil without dealing with the problem of slavery. It is also interesting to note that, despite criticism of the estate and a certain defense of conservative liberalism, Faoro dispenses with a vision on how to democratize the Brazilian State. For him, it would be enough to destroy the bureaucratic status, something that, we can argue, Lava Jato tried to accomplish.

Lava Jato can be understood as a “judicial faorism”, that is, an operation that associated the attempt to end the bureaucratic status with the ambition to put an end to the conception of the State in force in the country since the 1930s. its members claimed a judicial activism that was very poorly understood by our jurists because it assumes that judges can do anything and sought to extend it to the arena of criminal law. Thus, the political dispute in Brazil no longer took place through elections, but instead criminalized those who defended a conception of the nation organized around the State. For these, Lava Jato reserved not only the political defeat imposed by an impeachment to which it contributed decisively, but also imprisonment with the aim of changing the composition of the political system.

This objective was clearly expressed by judge Sérgio Moro in an article with academic pretensions in which he analyzed the operation “Mãos Limpas”. There, Moro stated “The operation mani pulite even redesigned the political framework in Italy. Parties that had dominated Italian political life in the post-war period, such as the Socialist (PSI) and the Christian Democracy (DC), were led to collapse, obtaining, in the 1994 election, only 2,2% and 11,1% of votes, respectively. Perhaps there is no parallel to judicial action with such incisive effects on the institutional life of a country”.

Today it is difficult to doubt that this was one of Moro's objectives: to redesign the Brazilian political system. He and his allies in the Brazilian elite forgot just one detail: that the other political force available in our country is militarism with authoritarian features, which was the greatest beneficiary of “judicial faorism”.

We know what led to the reversal of selective legal punitivism or “judicial faorism”. First, the unprecedented decline of the Brazilian economy since 2015, to which Lava Jato contributed decisively, as observed by judge Ricardo Lewandowski in the session on Thursday, April 22. More recently, the rise of an out-of-control militarism that occupied the Ministry of Health and was a partner in the tragedy that befell Brazil during the pandemic. And, finally, the resistance of those who believe in the rule of law institution, completely ignored, if not vilified, by the lavajatistas.

That is, what failed was not Lava Jato, but a project of systematic destruction of the Brazilian State, which did not find a substitute neither in the Temer government nor in the Bolsonaro government. These governments accentuated the impasses experienced by the economy and politics in Brazil. The only substitute that appeared was the militarization of the government introduced by Bolsonaro and pathetically reinforced in the Pazuello administration in the Ministry of Health, which opened up the incompetence of the military in management.

It fell to the eminent jurist Luís Roberto Barroso to serve as the last line of defense of “judicial faorism”. Barroso, had already written an article in which he defended the compatibility between the STF as a counter-majoritarian institution and as an institution representing public opinion, the latter supposedly made up of those members of the market interested in destroying the bureaucratic establishment.

The jurist took a step forward in defending “faorism” by putting aside any raptures linked to liberalism as a form of the right of defense and went on to support the idea that one of the components of the bureaucratic estate has the legitimacy to place itself above the law or violate the heart of criminal law. Those who do not defend Lava Jato would be defenders of corruption and not the rule of law. The answer he received from Gilmar Mendes shows the size of Barroso's mistake. By claiming to be a defender of morality without a political or judicial form, Barroso “plays” with a judicial and non-democratic conception of government. By considering himself representative of a portion of public opinion, he stands against the rule of law to defend the “faorist” political project.

However, everything indicates that this conception was defeated in the April 22 session, despite the eminent minister's shouts at the end of the session. The result of the vote points to the end of “judicial faorism” and to the return of a conception of the State defined by politics and not by the members of the Judiciary Power who formed an anti-republican faction and against the rule of law. It will be up to voters in 2022, and not the judiciary, to determine the political project that will replace judicialized and militarized faorism.

*Leonardo Avritzer He is a professor at the Department of Political Science at UFMG. Author, among other books, of Impasses of democracy in Brazil (Brazilian Civilization).

 

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