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Insight: Taking on the "toga-wearing bandits" in Brazil's courts

BRASILIA (Reuters) - Eliana Calmon takes great delight in provoking people. But even she didn’t realize at first what a bomb she had dropped.

Eliana Calmon, Ombudswoman for Brazil's Judicial System, speaks during an interview with Reuters in Brasilia, August 14, 2012. REUTERS/Cadu Gomes

“Look, I use a lot of colorful language, so when I said it, it didn’t seem that bad. But then the interview ended,” she recalled, starting to chuckle, “and I peered over at my aide, and he looked like he had seen a ghost! ... And that was when the whole storm started.”

The offending phrase: Calmon, who serves as a kind of ombudswoman for Brazil’s judicial system, said her work was being undermined by “bandits who hide behind their togas” -- corrupt judges who, she said, favor special interests and line their pockets with cash while doing as little work as possible.

The florid accusation, made in a newspaper interview last year, unleashed a scandal that went all the way to the Supreme Court. The surprising outcome has been an unprecedented wave of transparency and reform in Brazil’s courts -- many of which have historically behaved like private fiefdoms, mistrusted by Brazilians and foreign investors alike.

The confrontation has turned Calmon, a 67-year-old career judge, grandmother of two and an author of a popular cookbook, into an unlikely cult hero -- with more than 10,000 fans on Facebook and even a float in this year’s Carnival parade in her honor.

Her rise has shaken a genteel world dominated by gray-haired men who often sprinkle their speech with Latin phrases and elaborate honorifics. With a taste for bright blazers, and a habit of punctuating her criticisms with a pealing laugh, Calmon has described corrupt judges as “vagabonds” and “termites,” said Brazil’s legal system is “a century behind,” and called for a “war” to bring greater accountability to the bench.

Despite those who accuse her of being a publicity hound -- or, at worst, a loudmouth who carelessly slanders the entire judicial system -- Calmon says it is her grass-roots support that has given her the authority to press ahead.

In recent months, she has forced judges to disclose more data about their finances, curtailed practices that allowed officials to earn unwarranted salary bonuses, and pushed several corrupt officials out of their jobs -- and she’s not done yet.

Her efforts are part of a larger trend as Brazil becomes more prosperous and its growing middle class demands better institutions. Six ministers in President Dilma Rousseff’s government resigned or were fired last year because of corruption charges -- an unprecedented purge. Yet the judiciary was seen as a laggard, the branch of government that had changed least since Brazil’s military dictatorship ended in 1985.

What Calmon has done “is crucial for Brazilian democracy,” says Fernando Henrique Cardoso, who as president from 1995 to 2003 helped consolidate civilian rule. “These judges never had any controls on them before.”

It all would have been impossible, Calmon says, without that first rhetorical salvo.

“When I said ‘toga-wearing bandits,’ it was to a very tiny newspaper,” she said. “But, in today’s world, if you say something that is already on people’s minds, it explodes like gunpowder. This, I’ve found out, was something that everybody believed, but couldn’t say out loud. It was my role to say it.”


That’s how things look now. But just a few months ago, it looked like Calmon was going to lose -- and lose spectacularly.

Two days after making the “toga” comment, Calmon was obliged to sit silently in the same room as Antonio Cezar Peluso, then the head of Brazil’s Supreme Court, as he read a statement “vehemently repudiating” her comments for “impugning the honor ... of thousands of honest judges throughout Brazil.”

Calmon counters that, by focusing public shame on corrupt judges and rooting them out, she was trying to help the “vast majority” of Brazilian magistrates who are honest and hard-working. But on that particular day, she kept her mouth shut.

“I knew it wasn’t my moment,” Calmon says. “And I knew things were going to get worse.”

Indeed, within weeks, the heat was turned up further -- when the Supreme Court took up a case that sought to effectively neuter Calmon’s powers to investigate and censure judges.

It wasn’t her first clash with the system. Raised in Bahia, a state in the impoverished northeast, Calmon says she studied law because, like many who came of age during the 1960s, she wanted to help address the injustices that made Brazil one of the world’s most socially and economically unequal countries.

Yet when she became a judge, she was appalled to find one of the most entrenched bastions of Brazil’s elite. The legal system, which is based on Napoleonic code and has its roots in the Portuguese colonial era, has traditionally “been impervious to those who try to lift the cloak and force changes,” said Pedro Taques, a senator who has championed legal reform.

“It’s a club,” Taques says. “Eliana was daring enough to demand entry, even when many didn’t want her.”

The Constitution of 1988, written shortly after democracy was restored, granted courts near-total autonomy -- a move that was designed to shield them from political interference but in practice made it easier for judges to conceal nepotism, graft and decisions that favored special interests, Calmon says.

The slow pace and opaque functioning of the legal system is regularly cited in surveys as one of the biggest obstacles to investing here. In the World Bank’s annual Doing Business study, which ranks 183 countries based on their friendliness to investors, Brazil sits near the bottom third in categories including enforcing contracts, starting a business and dealing with construction permits -- all areas where courts play a role.

“There’s corruption, of course ... but we also have huge areas in the legal system that feed off of dysfunction and inefficiency,” Calmon says, citing the Brazilian practice of requiring extensive notarization of documents as one example. “If the justice system worked well, these interests would be decimated. So they do everything possible to create disorder.”

Calmon’s candor has burned a lot of bridges, but it also made her powerful friends -- fellow reformers who helped her ascend through the ranks. She became the first woman to serve on the STJ, a superior federal court. And in 2010, she was appointed to her current role, a senior position on the National Council of Justice (CNJ) -- a special body created six years earlier with new powers to investigate judges.

“Throughout my career, I always denounced everything I saw, even when it wasn’t politically correct,” Calmon said. She started to laugh. “If they had wanted a little mouse for the CNJ, I guess they should have picked somebody else.”


So, true to form, after the Supreme Court took up the case to limit the CNJ’s powers, Calmon doubled down.

She took her accusations directly to the public -- alleging, for example, that hundreds of judges had made financial transfers in excess of their income. She also said more than half of judges in São Paulo state had failed to file income tax returns, despite being legally required to do so.

Meanwhile, she took direct aim at Peluso, the head of the Supreme Court, implying that he was preventing her from investigating courts in his home state of São Paulo -- where 60 percent of cases in Brazil are heard.

“You know when I’ll get to inspect São Paulo? It’ll be the day that Sergeant Garcia finally catches Zorro,” she said, referring to the hapless police officer and elusive masked criminal from the popular 1950s TV show.

The public response was overwhelming. Calmon seemed to be on the front pages of newspapers every day. Social media lit up with every new accusation. Finally, she reached possibly the apex of fame and adulation in Brazil -- a Carnival float in Brasilia with a banner that said, roughly translated: “Eliana Calmon, your patron saint is bad-ass!”

In February, the Supreme Court ruled on the case, preserving the powers of Calmon and the CNJ. Calmon, who was so nervous during the hearing that she took pills to sleep at night, was shocked. “I have no doubt that public opinion played a role in the decision,” she said.

Layrce de Lima, a spokeswoman for the Supreme Court, declined requests for comment on whether the CNJ ruling was influenced by public pressure.

After emerging victorious from the showdown, Calmon says the floodgates opened up. Prosecutors and legal officials all over the country, especially those under the age of 40, began to contact her with tales of corruption and abuse of power.

“The real benefit of the confrontation was the dramatic increase in the number of allegations we received at the CNJ,” Calmon says. “People began to believe for the first time that nobody -- not even the powerful -- could stop these cases from being investigated.”

Based on the information, the CNJ has limited practices such as judges claiming up to three months of vacation a year, or giving themselves and their staff dubious bonuses. Calmon has also begun to limit a common practice in which money for financial awards in legal cases was kept in court-controlled escrow accounts for years -- which in some instances allowed court officials to skim the accrued interest for themselves.

Mauro Zaque, a young prosecutor who has investigated corrupt officials in the state of Mato Grosso, used a soccer metaphor to express his admiration. “We’ve all watched as Eliana kicks the ball with all her strength, and scores many goals ... She has inspired many of us to get out there on the field as well.”


Then, in August, a funny thing happened -- Sergeant Garcia finally caught Zorro.

Flanked by a dozen colleagues from the CNJ, Calmon walked into the Court of Justice of the State of São Paulo -- an imposing, Depression-era building where the halls are lined with photos of judges, nearly all of them male. “This is extraordinary,” she whispered to a colleague.

She spent the day in meetings with judges and other legal officials -- some of whom, six months before, had been after her scalp. The conversations took on an air of confession -- complaints ranged from the slow pace of court hearings to judges suspected of padding their payrolls with friends. One lawyer sought advice on how to start a CNJ-like body for São Paulo.

“People out there know what’s going on now,” Calmon solemnly told one group of prosecutors. “If we deny what’s happening, that will be the end of all of us. We can only improve if we admit we have faults.”

Calmon’s last day on the CNJ is Friday. But, in a sign of just how far she’s come, Calmon was elected this week by her fellow federal judges to head a well-regarded school for young magistrates -- a job that will allow her to shape the next generation of Brazil’s judiciary.

It is also clear that her role as the moral conscience of Brazil’s judicial system has grown beyond her job title. When the Supreme Court began a corruption trial of several powerful officials from the ruling party in August, Calmon said that “all of society” would be watching how the judges ruled. Her warning was in several newspapers the next morning.

Even those from the club that previously opposed her say there has been a clear -- and likely lasting -- change.

“People were uneasy, of course, about her accusations. But the consequences are irreversible,” said Armando Sergio Prado de Toledo, a judge and director of the school of magistrates in São Paulo. “Courts will have to be cautious now, because they know that because of her, everything they do will be monitored by the media, which has society behind them.”

He smiled. “I think it’s marvelous, and long overdue. The truth, is we needed this.”

Editing by Todd Benson, Mary Milliken and Bernard Orr