PEC 37 - Another Reason We Are in the Streets

Yesterday, Brazil witnessed another round of protests. Although neither as large nor as widespread as those on Thursday, they are continuing. News coverage, however, was spotty and, as always, tended to focus on unrepresentative acts of vandalism and violence.

One of the major focuses of these demonstrations was PEC 37 (Proposta de Emenda Constitucional 37/2011), a proposed constitutional amendment that would eliminate the Public Ministry’s investigative powers. This proposed amendment is enough of a threat to the Public Ministry (PM) that it ran a full page ad in the news magazine Veja this week. (See accompanying photo.) In order for non-Brazilians to understand this, we need to focus on three things: what the Public Ministry is, why the PM has been targeted and what this implies for Brazil. We also need to look at the process by which Brazil’s Constitution is amended.

First, the Public Ministry (O Ministério Público in Portuguese), is body of independent prosecutors at the federal and state levels. As such, it is independent of the executive, legislative and judicial branches. The very reason for this independence is to inhibit coercion by any branch of government that could, in turn, impede investigations into crimes potentially committed by its members. The PM’s purpose is to uphold justice, whether this means bringing charges and trying cases or requesting acquittal if prosecutors later become convinced of a defendant’s innocence. Although Public Ministry prosecutors are allowed to investigate criminal activities, they normally do so only when those under suspicion are police officers or public officials. When involving members of the national congress, presidential cabinet or the President, the Procurador Geral da República (Attorney General of the Republic) files those charges and tries those cases before the Federal Supreme Court, which brings us to why this particular amendment is being pursued in Congress.

There has been a corruption scandal rolling around this country for a number of years. Know as the Mensalão, or the Monthly Allowance scandal, it includes many present and former members of Congress and the Executive Branch. This scandal initially broke in late 2004 and resulted in investigations by the Public Ministry which then issued indictments in 2007. The case has revolved around alleged monthly payments involving many millions of dollars by members of the governing Workers Party (PT) to political allies in exchange for votes in Congress. Those investigated include a wide-ranging list of members of the PT and other political parties, large business enterprises, prominent businessmen and underworld figures. After many delays and frequent attempts to prevent the trial, the case was finally heard last year, 2012, before the Supreme Court. A number of those accused were convicted, some of whom are still serving in Congress and who will be voting on PEC 37. So far, none of those convicted have gone to jail. Sadly, when this scandal broke, it really surprised no one in Brazil. Corruption is part and parcel of how the government operates. It, by no stretch of the imagination, began with the PT and, if changes are not forthcoming, it will not end when the PT eventually relinquishes power. The PT did, however, bring corruption to new and absurd heights.

And now we come to the amendment itself. The Brazilian Constitution can be amended after four rounds of votes, twice in the Senate and twice in the Chamber of Deputies, in which the proposed amendment must receive at least 60 percent of the votes cast. (I will not dwell here on how amendments are proposed.) Although this might seem to be a daunting task, the Constitution has been amended 72 times since its adoption in 1988. To put this in perspective, remember that the US Constitution has been amended only 27 times since its ratification in 1791 and that ten of those amendments were included in the Constitution’s initial ratification.

And what is PEC 37? Quite simply, it would strip the Public Ministry of its power to investigate. Public prosecutors have called this the Impunity Amendment, as it would limit the power of investigation to the federal and civil police, although Congress would still be allowed to investigate matters due to other provisions in the Constitution. Many here see PEC 37 as revenge for the Public Ministry’s role in investigating official corruption. It is a clear and direct response by Congress to the Mensalão scandal.

There is a saying in Brazil that “everything will end up in pizza,” in other words, nothing changes. If this amendment passes, that is exactly what will happen in terms of corruption – nothing. There will be no impartial investigative body to keep an eye on, among others, Congress. The fox will be left guarding the hen house and only he will be able to investigate who killed and ate the chickens. The farmer would only be able to stand by and watch.

In addition to PEC 37, there is another proposed amendment, PEC 33, that would subject decisions by the Supreme Court to Congressional approval. We will discuss this amendment at a later date.

The next vote in Congress on PEC 37, originally scheduled for Wednesday, July 26, has been postponed until the first week in July due to the ongoing protests.

See you in the streets.