Judges accuse the Brazilian Bar Association (OAB) of being complicit in amnesty for undeclared campaign contributions.

Do Counsel - As if the fight between politicians, magistrates, and prosecutors over the bills that punish abuse of authority (PLS 280/2016) and undeclared campaign contributions (PL 4.850/16) wasn't enough, now the Federal Council of the Brazilian Bar Association has also entered this debate involving corporatism, incomplete laws, and media operations.

The group representing the legal profession was accused by the Brazilian Magistrates Association of being complicit in the alleged amnesty for undeclared campaign contributions planned by the Chamber of Deputies in exchange for the approval of the bill that intends to impose penalties on judges and members of the Public Prosecutor's Office who exceed the limits of their functions.

According to AMB, the criminalization of abuse of authority is an attack on the judiciary, following the punishments and investigations carried out against members of the political class. The organization also cites as examples of attacks on the judiciary the proposed constitutional amendments 55/2016, known as the Spending Cap Amendment; 62/2016, which aims to limit the salary ceiling for judges to R$ 15; and 63/2016.

This latest proposal seeks to end the 60-day vacation period for judges and prohibit judges from receiving any amount exceeding the monthly salary of Supreme Court justices. Regarding the Spending Cap Amendment, the Judiciary criticizes it for limiting the spending of the branches of government, interfering with their independence. In its opinion, the Attorney General's Office even stated that the initiative would transform the Executive branch into a superpower.

"This entire offensive demonstrates how, at this moment of crisis when the Legislative branch should be focusing on issues relevant to Brazil, such as the discussion proposing the end of privileged jurisdiction, many prioritize ways to paralyze and muzzle the Judiciary, invalidating important anti-corruption operations and seeking ways to perpetuate the same figures and schemes that have plundered the country," the organization criticizes in a statement.

The Brazilian Association of Magistrates (AMB) also criticizes the fact that the Bar Association also defends the criminalization of the judiciary in cases of violation of lawyers' prerogatives, even though this occurs frequently. "With this, 1 million lawyers will have the power to initiate criminal action against judges, also giving the OAB (Brazilian Bar Association) sections the power to initiate criminal action. Amidst this chaos, at no point have we seen the OAB speak out against amnesty for undeclared campaign contributions or in favor of serious measures for the recovery of Brazil, which is regrettable and demonstrates a stance that denies the entity's history of struggle and induces the negotiation of the submission of judges in exchange for impunity for those who plundered the State."

Cases of abuse of authority abound. In the "Lava Jato" operation, for example, the office of lawyer Roberto Teixeira, who represents former president Luiz Inácio Lula da Silva, was wiretapped with the authorization of Judge Sergio Moro of the 13th Federal Court of Curitiba. The judge, a staunch critic of the bill that punishes abuse of authority, authorized wiretaps on the firm's numbers, affecting 25 lawyers and their clients.

A case that could lead to Moro's punishment involves former OAS director Mateus Coutinho. His arrest was ordered by the federal judge, but he was acquitted on appeal due to lack of evidence. According to Folha de S.Paulo, his wrongful imprisonment resulted in the loss of his job and the end of his marriage. The former executive also went almost six months without seeing his daughter.

Disguised corporatism
In response to the AMB's accusation, the Federal Council of the OAB issued a statement repudiating all the claims. "We have no doubt about the high public spirit of the national judiciary, which, as a whole, does not reflect the unionist behavior of some. These individuals, acting as political actors, mutilate the image of the magistracy, conveying the nefarious idea that they constitute an untouchable caste, immune to societal scrutiny."

The corporatist nature of these statements had already been highlighted by Minister Gilmar Mendes of the Supreme Federal Court. In October, the president of the Superior Electoral Court said that "Brazil has become a corporatist Republic," where only "self-centered groups defending their own interests" are seen.

According to the minister, this corporatism affects the performance of magistrates, turning them into "fighters against corruption." "Everyone says they are having salary restrictions because they want to fight corruption. Maybe we'll have 18 Moros soon." Regarding the resistance to the bill that punishes abuse of authority, Gilmar Mendes said he doesn't understand the motivation.

"Are they above any questioning? I mean, their actions, the actions of Judge Moro, the actions of the other judges, the actions of the prosecutors, the police chiefs," said Gilmar Mendes. "This law is not aimed at anyone specifically. It was made in 2009, therefore, it could not foresee 'Lava Jato'. Nobody is above the law. That's the point of the project. It's about targeting everyone from the traffic cop to the President of the Republic and allowing them to be prosecuted when there is abuse," he added.

Regarding the alleged amnesty for undeclared campaign contributions, the problem with the bill lies in the broad definition of the crime to be covered. "The problem stems from the fact that some parliamentarians intend to amend or even replace the report by Congressman Onyx Lorenzoni in order to expressly include amnesty for perfectly punishable conduct such as money laundering, active and passive corruption, embezzlement, etc.," states Luiz Fernando Prudente do Amaral, professor at the Institute of Public Law of São Paulo.

To resolve the problem, criminal lawyer Daniel Bialski, from Bialski Advogados, suggests that the legal text should explicitly describe the conduct that constitutes undeclared campaign contributions (caixa dois) so that there is no confusion with those that typify money laundering or corruption, for example. According to the lawyer, this will prevent a situation where, once undeclared campaign contributions are defined, there is no room to question previous convictions based on already defined conduct. This is because criminal law retroactively benefits the defendant.

No amnesty
This Sunday (November 27th), President Michel Temer, along with the presidents of the Chamber of Deputies and the Senate, Rodrigo Maia (DEM-RJ) and Renan Calheiros (PMDB-AL), made a statement informing that there is no possibility of granting amnesty for undeclared campaign contributions, as suggested by the AMB.

"We are here to reveal that, regarding amnesty, there is unanimity among the leaders of the Executive and Legislative branches. We have verified that it is necessary to heed the voice of the streets, which means reproducing a constitutional provision that says: power does not belong to us; it does not belong to the President of the Republic, nor to the Senate, nor to the Chamber of Deputies. It belongs to the people. When the people express urgency, it must be addressed by the Legislative branch and equally by the Executive branch," said Temer at the opening of the press conference at the Planalto Palace in Brasília.

Rodrigo Maia denied that the House leadership was working to include matters aimed at amnesty in the proposal. "It was made clear to the leaders that we could not discuss electoral amnesty or amnesty for any other crime. This debate never happened and, for sure, will never happen when we put it to a vote, probably on Tuesday (November 29th)."

Renan also guaranteed that he will work together to prevent the approval of any legislation that would grant amnesty for electoral crimes. "We are making an agreement, an institutional adjustment, to the effect that there will be no consideration of amnesty for electoral crimes, undeclared campaign contributions, or any electoral crime, because everything that is approved goes to veto. Therefore, the presidents of the Chamber and the Senate have concluded that this matter should not proceed."

Read the OAB's statement:

The Federal Council of the Brazilian Bar Association repudiates a letter signed by the president of the Brazilian Magistrates Association, which accuses it of associating itself with parliamentary maneuvers to, in defense of the prerogatives of the legal profession, promote the criminalization of judges.

That's not true—and it wouldn't be possible, since the assessment of any potential action against a magistrate will also be judged by a magistrate. The prerogatives of the lawyer—and not only of the lawyer, but of society, as they guarantee one of the fundamental human rights, which is the right to defense—are already enshrined in law.

These rights must be respected, and this has been systematically violated by some actors within the Police, Public Prosecutor's Office, and Judiciary.

Strictly speaking, it wouldn't even be necessary to explicitly state it, since compliance with the law is mandatory for everyone. What the legal profession is demanding is parity between prosecution and defense, inherent in the most basic principles of procedural law – and which, unfortunately, has not been observed.

The AMB statement also accuses the OAB of remaining silent regarding attempts to grant amnesty for undeclared campaign contributions and related actions in Congress. Once again, this is a lie.

On the contrary, the Brazilian Bar Association (OAB) has been firm and consistent in this fight, with statements echoed throughout the press, the most recent published on the 25th of last month by, among others, Estado de S. Paulo, IstoÉ and Folha de S. Paulo. We have no doubt about the high public spirit of the national judiciary, which, as a whole, does not reflect the unionist behavior of some.

These individuals, acting as political actors, tarnish the image of the judiciary, conveying the harmful idea that they constitute an untouchable caste, immune to societal scrutiny.

The President of the AMB should be concerned, instead, with defending the Constitution, which does not authorize absurd privileges, such as salaries above the legal limit in any of the branches of government.

Nothing and no one is above the law – and in a democratic state governed by the rule of law, there is no room for ivory towers. Truth always. Untruth never.

Claudio Lamachia
President of the Federal Council of the Brazilian Bar Association (OAB).