Criminalizing Politics in Brazil: The Judiciary vs. Lula da Silva

The jailing of President Lula marks another stage in the deterioration of Brazil’s democracy: the consolidation of a state of exception and the failure of the rule of law in Brazil.

April 7, 2018 will be remembered as a watershed moment in Brazil’s recent history. On that day, following a historic speech to a crowd of thousands of supporters, former President Luiz Inácio Lula da Silva turned himself in to serve a 12-year prison sentence for alleged crimes of corruption and money laundering in connection with an apartment owned by Brazilian construction company OAS. The arrest order came after the Brazilian Supreme Court made the controversial decision to deny Lula his constitutional right to remain free until all appeals processes are completed . This right was crucial not just in its constitutionality but also because throughout Lula’s trial, no concrete evidence was produced to verify his guilt; his freedom during the appeals process would have thus demonstrated the healthy functioning of the Brazilian justice system. Sending him to jail without evidence or presumption of innocence, and without even the confirmation of the appeals court until 11 days after his arrest, proves the opposite point. This month’s events mark another feature of the steady deterioration of Brazil’s democracy since 2012, which includes former President Dilma Rousseff’s (Workers’ Party) unconstitutional impeachment in 2016. The arrest of President Lula (also Workers’ Party) is perhaps even more controversial , and is another chapter of what could be considered the consolidation of a state of exception and the failure of the rule of law in Brazil.

Crossing the Rubicon

Lula’s unlawful arrest is symbolic of how the Rule of Law is steadily being undermined in order to impose a political and economic agenda and to reorganize the geopolitical forces in the hemisphere. Once seen as avant-garde for its socially oriented governments in the Global South, Latin America is now experiencing a strong reversal in that tendency. Progressive governments throughout the region have been replaced (through various means) by neoliberal, often illegitimate, governments that are rolling back the social and political achievements of the two previous decades. Even more worrisome, this reversal is leading, as Portuguese sociologist Boaventura de Sousa Santos describes it, to the consolidation of “very low-intensity democracies ,” a modern-era state of exception in which institutions and processes that are usually used to describe a “democracy” in its traditional understanding are still there, but the representativeness that those institutions and processes should entail are emptied of any real significance. That is to say that, although so-called democratic institutions are still in place, democracy is circumscribed to only a few aspects of daily life, leading to authoritarian regimes that are disguised behind a veneer of democracy . As a result, we have societies that may be politically democratic on the surface, but that are socially fascist in essence, creating a state of exception that is increasingly deepened.

Such a process is not something that happens overnight: it gains strength over time from deeply rooted forms of elite privilege, class, and race bias, and it entails the criminalization and judicialization of politics, the symbolic and physical elimination of the “other,” and the undermining of basic human and constitutional rights. Although this strategy might be instrumental to achieve certain political goals in the short term, it imposes a series of complications in the long term and becomes difficult to unthread from a society’s fabric. With the empowerment of certain sectors of society with fascist tendencies, it becomes difficult to forward any democratic initiative, even with the best intentions; when institutions that once protected the Rule of Law now actively undermine it, the path to democracy is increasingly unclear.

When Evidence Does Not Matter

According to Brazilian Law, to convict a politician of corruption, it is necessary to prove that said politician favored someone (or a private company or interest group) in exchange for compensation. Lacking material evidence connecting Lula with corruption or money laundering, the “evidence” provided by Sergio Moro, the low level judge in charge of Lula’s case, comes from the testimony of one José Adelmário Pinheiro Filho, former President of Brazilian construction company OAS, which some say was obtained through coercion due to Pinheiro’s involvement in the same case. As American economist Mark Weisbrot points out, reports show that Pinheiro’s plea deal was cut off when his original testimony did not implicate Lula. When he changed his testimony , after a year in jail, negotiations for his plea deal recommenced. His sentence was subsequently reduced by two-thirds, to be served under house arrest.

If Pinheiro’s own implication in Lula’s case was not enough to discredit his testimony, there is also the added problem that as a defendant in the case, Pinheiro was not sworn in and can therefore lie on the witness stand without penalty . Faced with conflicting witness accounts, Judge Moro also resorted to a legal loophole, creating the category of “undetermined official act” (or “potential official act”) . As Brazilian newspaper Nexo describes it, “according to Moro and the judges of the Federal Regional Court of the 4th Region who confirmed the conviction, Lula practiced passive corruption even without an ‘official act’ in favor of OAS […]. In return, the contractor won overpriced contracts with Petrobras. There is no direct connection between Lula and these contracts , but according to the magistrates, as President of the Republic, he had control over the appointments of directors that closed the contracts.” More than this dubious claim, there is no evidence that Lula ever gained anything from those “undetermined official acts.”

At the end of the day, it becomes clear that Lula was jailed simply because the courts understood that he might, in an undetermined future, through undetermined means, commit an act of corruption. This sets a very dangerous precedent, since it means that anyone could be arrested at anytime under the pretext of preventing a unknown crime that may or may not be committed in an unknown future. Worse still, the very institutions that should be in charge of preventing such abuses of the law are the same that are now normalizing and institutionalizing it.

Along with the lack of evidence, Italian lawyer Luigi Ferrajoli highlights three other aspects of what he calls “partisan arbitrariness” against Lula. First of all, he says, this is a campaign orchestrated by the media, fueled by the protagonism of the magistrates overseeing the case, who leaked information “covered by the confidentiality of the investigations and gave interviews in which [they] made statements, before the trial, against the accused, in search of an improper legitimation: not through the respect of the law, but through popular consensus.” The second aspect that highlights the judges’ lack of impartiality, Ferrajoli continues, was that since the goal of the prosecution was to incarcerate at all cost, it forced the defendant to prove his own innocence, in a clear violation of the basic legal principle of presuming innocence until proven guilty. Not only did the prosecutors fail in providing material evidence of Lula’s guilt, but they also prevented the defense from presenting crucial evidence of his innocence.

The third aspect presented by Ferrajoli is the swiftness of the process. One of the most important features of the new wave of (soft) coup d’etats sweeping Latin America in recent years, from Honduras to Brazil, is the necessity to disguise an obvious breach in the constitutional order with a supposedly zealous pursuit of due process where time is of the essence. Rousseff’s impeachment is a good example of this trend: although it was never proved that she committed any impeachable crime, which by itself provide enough basis for its annulment, the process seemed to follow, at least superficially, the appropriate steps. That is important since it gives a false sense of legitimacy to an otherwise frontal violation of the Rule of Law. But in Lula’s case, it is becoming more obvious with Moro’s every desperate sweep under the rug that he is a victim of judicial persecution. So one might ask, why the rush?

The Goal: 2018 Elections

The swiftness of the process against Lula is easily explained as an illegal maneuver by the Brazilian Judiciary to reach his final sentence as soon as possible, and thus prevent him from running in the presidential elections scheduled next October. But despite his arrest and various attempts at character assassination from the Brazilian media, Lula’s popularity remains on the rise. A recent poll shows Lula leading in every scenario of candidates, winning up to 47% of voters’ intentions . That same poll also shows that 41% of Brazilians believe Lula was convicted without evidence, 59% believe Lula’s arrest was politically motivated, and 58% believe that he has the right to present his candidacy even after his arrest, as stipulated by Brazilian electoral law.

Since Rousseff’s impeachment, it was clear that Brazilian elites were willing to do anything to prevent the Workers’ Party from regaining the presidency of the country through elections. In that sense, as Portuguese historian Rui Tavares claims, Lula’s jailing “has become a necessity , not because of [an apartment] that he has never used or even a lawsuit that has not yet gone unappealable, but for the much simpler reason that Lula could perfectly win the next elections.” If there were any doubt about this truth, the Brazilian Supreme Court seems determined to make things clear. As reported by Estadão , one of Brazil’s mainstream newspapers, members of the Workers’ Party are being advised by Supreme Court’s Justices that taking Lula “out of the spotlight” (e.g., making him withdraw his candidacy for the next presidential elections), might help the court change the unfavorable ruling against him – in another clear attempt by the Judiciary to influence the political future of the country.

Brazilians are now faced with the question of whether elections will actually be allowed to take place this year, and if so, how legitimate this process would be, given that the strongest candidate will likely be prevented from running due to illegal maneuvers by the Judiciary.

What to expect?

Just as Brazil is a new state of exception, the case against Lula is a “criminal procedure of exception, according to criminal lawyer Fernando Hideo. It has the “appearance of a judicial process, where the rites of due process are supposedly observed, when, in fact, it is only a façade whose end is predetermined.” And that is because the judicial persecution against Lula is developing into a state of extreme constitutional insecurity. As Brazilian jurist Pedro Estevam Serrano explains, “such conditions allow that almost all human conduct that diverge from the banal could, by some legal interpretation, even if it fails to disregard Constitutional aspects, become liable to sanction by the State. And this normative imbroglio ends up delegating to the one who executes the law […] the arbitrary, imperial, absolutist power to select who gets hit by this norm and who does not.” In Serrano’s conception, this is the essence of the exception .

Lula’s illegal arrest is a clear sign that Brazil is far from regaining its democracy, especially considering the detrimental role that the country’s institutions may have in that process. The judicial targeting of the Workers’ Party, combined with the steady devolution of grassroots movements and social policies under de facto President Michel Temer, is forging very dangerous legal precedents. The high-level resentment toward the Workers’ Party, fueled by an intense campaign of character assassination carried out by the media, is empowering the rise of a neo-fascist movement in the country. Lula’s imprisonment, the assassination of black, queer councilwoman Marielle Franco, and the increase in deaths due to land disputes all point to the conclusion that the coup mongers will not hesitate to use violence – symbolic or otherwise – to maintain their power.

Brazil is now faced with two options: if the elections and Lula’s elimination from the competition take place in October as scheduled, there is a fair chance that a far-right candidate would be elected. On the other hand, even if Lula or another progressive candidate manages to be elected, there is little hope that the judiciary and other officials would give up the chase after years of pursuit; neither electoral fraud nor another irregular coup is outside the range of possibilities. When the option of resumption of democracy through the institutions in place is exhausted, it will be time for Brazilians to truly begin the debate on how to build a real representative democracy.

Additional editorial support provided by Liliana Muscarella, Research Fellow at the Council on Hemispheric Affairs.