Should Judge Moro have accepted the Ministry of Justice offered by Bolsonaro?

On 2 November 2018, in his first
interview since being elected President of Brazil, Jair Bolsonaro responded to a question about
his new government´s policy for combating crime by stating that he intended to
apply the same rules that the Brazilian armed forces had used in the UN
peacekeeping mission in Haiti.

´Armed
elements are legitimate targets´ he said. 'You don´t confront gunmen with flowers and ask them
to hand over their weapons. We know that
in an urban setting the collateral damage of an exchange of fire could be
disastrous, but I would defend a legal guarantee to all police officers and
soldiers involved in operations to uphold law and order. Do not worry about a possible conviction or
condemnation for fulfilling your mission.

The day before this
interview Bolsonaro also announced that he was appointing Judge Sergio Moro, who had
led the Operation Lava Jato (Car Wash) investigation that will be discussed below, as his
new Minister for Justice and Public Security.

The two announcements are undoubtedly popular in a country plagued by
corruption and violent crime, but they offer a terrifying glimpse into the nature of our new President´s
approach to human rights when he takes office in January 2019.

Bolsonaro is a former military officer who has been a full-time
politician in Brazil for almost 30 years.
His notoriety
comes from a series of bizarrely offensive statements: telling one woman that
she was too ugly for him to rape her, saying he would rather his son died than
told him he was gay, taunting black people, indigenous communities and those
from the poorer states of the north east, and saying that the dictatorship´s
only mistake was that it did not kill enough of its political opponents.

Bolsonaro said that the dictatorship´s only mistake was that it did not kill enough of its political opponents.

When
casting his vote for the impeachment of former President Dilma Rousseff in
2016, Bolsonaro dedicated it to the memory of the head of intelligence of the
military dictatorship, responsible for torturing of over 100 political
dissidents including Dilma herself. On
the eve of his election he released a statement in which he promised to
imprison his political opponents and echoed a slogan from the dictatorship era:
´Brazil, love it or leave it´.

Bolsonaro
did not take part in any presidential debates during the election campaign or
give interviews with journalists where he would be required to answer
questions so considerable doubt remains about what he actually intends to do
when he takes of office.

Brazil´s laws
and constitution clearly prohibit many of the policies that he advocates and some
observers have suggested that not all his statements should be
taken at face value. However, last
week´s announcements are a serious cause for concern.

Brazil´s laws and constitution clearly prohibit many of the policies that Bolsonaro advocates.

The Brazilian armed forces have been marginalized since the return to
democracy 30 years ago. They are,
however, proud of the role that they played leading the UN
stabilization mission in Haiti and it is no secret
that they have drawn on these experiences on the occasions that they have been
deployed in Rio de Janeiro to assist the state government.

The UN Department of Peacekeeping Operations states that
UN forces operating with Protection Civilians mandates should consider themselves
bound by International Humanitarian Law, rather than international human rights
law.

While this position can be
critiqued, it is not surprising that there are those who argue
for a ´war on
crime´ in which IHL would provide a more permissive legal
framework for the security forces. In March of this year, Human
Rights Watch revealed that the
rules of engagement that the armed forces are currently operating under in Rio
include authorizing the use of lethal force to protect
goods and property, which is a prime
facie breach of Brazilian law.

Clearly Bolsonaro´s proposals would require even more radical and extensive
changes to Brazil´s constitution and criminal law, as well as derogations from
many international legal obligations. It
is in this context that the appointment of Judge Moro takes on
significance.

Moro's background

In 2013 Moro led a group of young Judges in Curitiba in devising an
anti-corruption prosecution strategy, dubbed Operation Car Wash.

The heads of Brazil´s nine top construction
company and its state-owned oil company were soon facing charges along with
fifty senior politicians, including members of Congress and state Governors. By the end of 2017, over 300 people had been charged with criminal
offences and over 1,000 warrants had been issued
for search and seizure, temporary and preventive
detention and coercive measures.

The scale of the fraud that Moro´s team uncovered was staggering – almost $10 billion US dollars – but some of their measures were controversial

The scale
of the fraud that Moro´s team uncovered was staggering – almost $10 billion US
dollars – but some of their measures were controversial. Suspects were placed
in pre-trial detention and offered plea-bargains as inducement to testify.
Evidence gathered in this way was used to target more suspects and the
unsubstantiated word of alleged accomplices has been deemed sufficient for conviction. Moro
also provided the Brazilian media with selective briefings about the evidence
facing key defendants or tipped them off about police raids.

The highly politicized nature of Operation Car Wash stretched perceptions about the impartiality of the Brazilian justice.

Brazil has a civil law system in which Judges have an investigative as
well as an adjudicative function. This means that Judges
sitting without juries both have overall direction of a criminal investigation
and then determine the guilt or innocence of the defendant.

The highly
politicized nature of Operation Car Wash stretched perceptions about the
impartiality of the Brazilian justice. Politicians from all parties faced charges, but inevitably the focus
came to fall on its left-wing Workers Party (PT) led by former President
Lula.

In March 2016, Moro ordered Lula´s
arrest in an early morning raid, which he had informed the media about so that
it could be televised. President Dilma
then attempted to appoint Lula into her government as chief of staff, which
would have given him immunity from prosecution, but this was blocked by another
judicial order and Moro released a wire-tapped conversation between the serving
and former President where the appointment was discussed.

Impeachment and imprisonment

Two events then played out which have dramatically
altered the face of Brazilian politics.
First of all, Dilma´s impeachment and removal from office, the following
month, and then Lula´s arrest trial and imprisonment earlier this year.

Both legal processes raised a number of concerns, and their combined effect led PT
to decide to use the forthcoming election as a fight to defend their party,
government and legacy. Lula was
nominated as a candidate, even though his conviction made him ineligible to
stand according to a law that his own government had enacted.

Dilma had been replaced as President by
Michel Temer, her own deputy from a rival party. His government was backed by the centrist
parties that have traditionally rivalled PT but proved hopelessly inept and
unpopular. Opinion polls soon showed
Lula well ahead of all the other potential presidential, polling at over 40
percent. His nearest rival was the
previous politically marginal Bolsonaro, polling around 15 percent. Most of the ´centrist´ candidates could not
get into double figures.

A few days before the first round of voting, Moro issued another indictment, based on a plea bargain, this time implicating both Haddad and Dilma.

Lula finally dropped out of the race in early
September when his last legal appeal, based on an interim request from the UN
human Rights Committee, was rejected by the Brazilian Supreme Court. Fernando Haddad, his former Education
Minister and Mayor of São Paulo was nominated in his place but had little time
to build an independent profile.

Bolsonaro was stabbed during a campaign rally at around the same time,
bringing him a wave of sympathy. A few
days before the first round of voting, Moro issued another indictment, based on
a plea bargain, this time implicating both Haddad and Dilma, who had previously
been untouched by corruption allegations.
There seemed to be no pressing legal reason for the timing of this
judicial decision.

Moro has clearly compromised both himself and the system that he is part of by his actions.

Bolsonaro´s deputy, a former army captain, has confirmed
that they were in conversation with Moro about his possible appointment during
the election campaign and Moro´s wife used her social media account to indicate that she had voted for Bolsonaro in
the final round.

The Brazilian justice system has a constitutional duty to act as a check
on the executive and its political neutrality is fundamental to this role. Moro
has clearly compromised both himself and the system that he is part of by his
actions. If he adopts the same methods that he used in Operation Car Wash in
his new role – acting for a President who supports torture, shoot-to-kill
operations and total impunity for the security forces – human rights, justice
and democracy face a bleak future in Brazil.