BRAZIL-The need for clarity

A dictionary helps

Two institutions have been cited in the press as the targets in 2016 for the PT wrecking ball.

One is the Central Bank for its interest rate policy to contain inflation. 

The base interest rate (SELIC) is currently at 14.25% and analysts predict that on the 20^thwhen the Monetary Policy Committee (COPOM) meets the rate is forecast to be increased to 14.75% or 14.5%. 

As we have seen over the past year, the administration forced a reduction of the SELIC rate, ostensibly to increase investment and consumer demand. The policy was to no avail and eventually abandoned.

Once again, the administration under pressure from former President Lula, and in accordance with the reputed views of President Dilma Rousseff has suggested that the SELIC rate is “too high” and inhibits economic growth. It follows that if that is the case, the rate should be reduced.

In a recent television interview, Dilma informed that the Central Bank is notindependent in her government. She said it was “simply autonomous”.

That statement sent me running to my dictionary to make sure I understood the difference.

I consulted both Portuguese and English language dictionaries. 

I first looked up “independent” in both languages. The results are as follows:

• English: “independent” was defined in the Oxford dictionary as 1. “not subject to  authority or control” and 2. “self-governing”
• Portuguese: “independente” was defined as 1. “not dependent on or subject to control” and 2. “self-sufficient

Then I looked up "autonomous"

• English: “autonomous” was defined as 1. “having self-government” and 2. “acting independently or having the freedom to do so”;
• Portuguese: “autônomo” was defined as 1. “that which has ‘autonomy’ (defined as the ability to govern oneself ) and 2. “that which does not depend on any other”;

I finished my short bit of research somewhat confused. Since both words relied on each other to define them, it seemed to me that they were similar and interchangeable.

If the Central Bank is “autonomous” it is “independent” in both languages. Maybe the distinction will become clear as the administration devises its policies. I guess until then I shall remain ignorant!

The other target is the Lava-Jato investigation. 

A group of defense attorneys recently published a manifesto accusing the Public Prosecutor and the Federal Police of violating the rights of suspects in the Lava-Jato investigation in order to “force” plea bargains.

There seems to be some confusion regarding this instrument to investigate organized crime and corruption. The manifesto criticized the use of “preventive detention” to “coerce” those under investigation to cooperate with the authorities to reduce their sentences if convicted as well as seeking to imply guilt in advance of any trial or right to defense.

Preventive detention with regard to organized crime can also be considered a means of protecting the accused against reprisals or violence on the part of others who may be involved in a criminal scheme or enterprise. (Being from New Jersey, I have often heard of witnesses disappearing after being interviewed by the authorities. Having them “under wraps” can serve to protect them from harm.)

Once the person under suspicion has been indicted, preventive detention can be used to protect the rule of law, e.g. preventing the individual from fleeing prosecution while ensuring the right to a trial and self-defense.

If the individual under suspicion is indicted, tried, found guilty and sentenced, he/she has the right to offer evidence to the state regarding the involvement of others in exchange for a reduction of his/her sentence.

Alternatively, the individual might choose to be a “stand-up guy” (see a previous post on this type of person) and simply go off to the slammer to serve the sentence meted out.

The accusations in the manifesto that the authorities have encouraged falsehoods and heresay or rumor as evidence does not apply to plea bargains. Whatever a defendant says under plea bargain must be subject to proof or the plea bargain is rendered null and void.

It is also useful to remember that those who agree to a plea bargain are convicted criminals. They are definitely not outstanding examples of character and morality. They are cooperating with the authorities to “save their own skins” and reduce the amount of time they will have to be incarcerated under the law. They are definitely not the guardian angels of society and the rule of law.

They are, of course, entitled to a trial regardless of whether they choose to cooperate with the authorities.

Organized crime is a special type of crime that justifies plea bargains. A person who shoots someone in a bar fight or even in cold blood has little to offer the authorities by “copping a plea” (as they say in New Jersey). If that individual is not part of a broader, organized scheme to harm society and the rule of law, he/she will simply have to “do the time” (again as said in New Jersey).

Organized crime, whether private (e.g. the Mafia) or public (e.g. corruption of public officials) has “tentacles” and networks that subvert public order and public institutions and many of them are purposely hidden from view. Plea bargains are instrumental in discovering the hidden elements and sanctioning additional perpetrators of illegal actions. However, in democratic societies they are not coerced and there is little to indicate that those negotiated in the Lava-Jato investigation fall into that category. 

If there is sufficient evidence under law to support preventive detention in the case of a particular individual, then coercion is not an issue. If the charges that have led to the individual’s detention are false or there is a risk that the individual might (voluntarily or involuntarily) “disappear” to avoid standing trial or testifying in his/her own defense, then preventive detention might be necessary and even commendable.

Finally, it would seem rather obvious that anyone involved in a criminal organization and not yet arraigned would love to see Lava-Jato dismantled and/or discredited. That’s precisely the reason for the plea bargains in the first place!

Analysis:

It’s rather clear that the two “targets” for criticism are a source of inconvenience to the administration.

Central Bank “autonomy” or “independence” runs counter to what appear to be the administration’s plans for the economy. The issue begs to be resolved. Either the Central Bank is “autonomous” or “independent” or it is not. If neither nor both, (I’m still confused as to the difference!) then these is nothing to discuss or clarify. If the bank iseither or both, then it should be allowed to do its job, as inconvenient as that might be.

As for “abuses” attributed to Lava-Jato, there are sufficient legal options available to defendants to question the actions of the authorities. A public manifesto merely “politicizes” the issue to no purpose other than to try to tie the hands of the authorities and inhibit them from performing the tasks legitimately assigned to them.

Watch developments in both these areas over the next few months.