Por Mario Osava (IPS)
HAVANA TIMES – “Lula for president”, is the cry that different sectors in Brazil are raising after a Federal Supreme Court ruling that annulled criminal convictions against former president Luiz Inacio Lula da Silva. It also represents the decline in the anti-corruption struggle that has had the Brazilian justice system spinning.
This overturn came on March 8th, with the verdict by Edson Fachin, one of the 11 Supreme Court magistrates. He annulled the two sentences that sentenced the former leader (2003-2010) to 26 years in prison for passive corruption and money laundering, as well as the veto on him from running in any election.
The new ruling states that the Curibita court that began the prosecution of Lula didn’t have the authority to do so. Therefore, the two sentences have been quashed and their validation by superior authorities, the appeals court and national Supreme Court, which increased Lula’s sentence and kept him in jail for 19 months, between April 2018 and November 2019.
Fachin’s ruling doesn’t mean Lula’s absolution though, as the Supreme Courty plenary will have to ratify this if an appeal is filed. The legal procedures that led to Lula’s convictions and another two currently in process are being transferred from the Curitiba court to one in Brasilia, where the former president is subject to other corruption-related legal proceedings.
However, it’s unlikely that a sentence will be given before the presidential elections in October 2022. Furthermore, ratification at a second level of arbitration would be needed in order for Lula to lose his political rights again, according to the Clean Slate Law which has tried to separate criminals from Brazilian politics, ever since 2010.
Thus, Lula’s rebirth as the natural candidate for his leftist Workers’ Party (PT) in next year’s presidential elections. President Jair Bolsonaro will be seeking reelection. His government is filled with far-right politicians and representatives of the Brazilian military. The later dominate his cabinet and hold other important public positions.
A survey by the Institute of Intelligence in Polls and Consultancy (IPEC) recognized Lula as the favorite to win, if he were to run. His votes potential, that is to say the voters who would definitely or possibly vote for him, is 50% right now, against the 44% that would rule him out.
In the case of president Jair Bolsonaro, a former Army captain, the figures are 38% and 56%, respectively. Another eight potential candidates received lower numbers of being the favorite and were rejected like the current president.
Lula’s political comeback represents a loss for judge Sergio Moro, who ruled the first sentence against the former president, convicted of receiving an apartment in Guaruja beach, near Sao Paulo, as a bribe from a construction company that was interested in state projects.
Moro led the anti-corruption campaign that was launched in 2014, with investigations into Operação Lava Jato (Operation Car Wash) by the Ministerio Publico (Public Prosecutor’s Office), with its main base of operations in Curitiba, the capital of the southern Parana state.
However, Moro’s court of first instance only had the power to rule on cases of corruption in Petrobras, the State’s oil company, that multiplied its investments during Lula’s administration and that of and his successor, Dilma Rousseff, who also belonged to the PT (2011-2016).
It was never proven in the proceedings against Lula that the alleged bribe was linked to a diversion of resources from Petrobras, Fachin recognized, while looking into a writ of habeas corpus from the former president’s defense, based on the Curitiba court’s lack of authority to rule in this case.
The decision was a bombshell for the legal and political world. Lawyers and many jurists had been questioning the procedural error since 2016, without anyone paying any heed, even the country’s supreme court. So, why has the judge responsible for Lava Jato trials in the Supreme Court only allowed this now, after Lula received three convictions?
The common answer seems to be that Fachin, a member of one of the court’s two divisions and one of the 11 judges who supported Lava Jato the most, had tried to salvage the operation. Sacrificing the court’s feat (sentencing the former president), would be a way to stop the offensive that brings different political forces together, interested in ending the investigations into their leaders.
However, if this was Fachin’s intention, it backfired.
It triggered immediate actions that could be a coup de grâce for Lava Jato, already slowing since 2019. That was the first year of Bolsonaro’s administration, when he abandoned his anti-corruption campaign banner. He proceeded to begin disarming the state agencies in the field.
For example, Fachin wanted to void another habeas corpus that Lula requested in 2018, based on Moro’s alleged partisanship. It lost its basis when he annulled Lula’s convictions, he argued.
However, the other division of the Supreme Court, which is in charge of the case, has rejected Fachin’s pretension and decided, on March 9th, to pick up on the discussion that began in late 2018. Two of the five members said that Moro was biased, overstepping his duties as a judge and acted as an investigator and accuser too. The decisive vote from the fifth member is still pending.
Moro’s conversations with prosecutors throughout the trial, which were leaked in June 2019 by digital newspaper The Intercept Brasil and published in other well-known international papers and media outlets, prove his collusion and political intention to convict Lula.
Gilmar Mendes, the speaker and most assertive judge, listed seven irregularities and abuses committed in order to prove Moro’s partisanship, such as the illegal tapping of Lula’s lawyers’ phones, “coercive leading” (temporary arrest) to interrogate him and manipulation of the press in order to win support for his actions.
The final piece of evidence would be Moro’s allegiance with Bolsonaro’ government, in which he was the “super minister” of Justice for 16 months.
“What democratic country would accept a former judge who took the president’s main adversary out of the game, as the minister of Justice?” Mendes asked.
Moro held this position for almost 16 months. He resigned on April 24th 2020, after he rejected the president’s interference in the Federal Police, an agency that belonged to his old ministry.
The forced resignation of the country’s symbol of anti-corruption reflects the gradual decline of the Operation Lava Jato under Bolsonaro. It also became clear when he assigned people he trusted to lead the Public Prosecutor’s Office, Federal Police and other State agencies that should be independent and elect their own heads.
Since he joined the Supreme Court in 2002, Mendes has called the way Operation Lava Jato was conducted in Curitiba, under Moro’s leadership, “the greatest legal scandal in our history.”
It’s a symptom of the legal system’s decline, which he believes is authoritarian and is in need of “profound reforms of Criminal justice,” to prevent the establishment of a “totalitarian regime.”
He voted in favor of annulling the entire proceeding, even evidence collected against Lula. A new trial would have to begin from scratch in order to convict Lula for the apartment that was an alleged bribe, but in fact, it never belonged to the former president, nor did he ever use it.
The trial was left up in the air when two votes discredited Moro and two attested to his impartiality. The fifth member of the section, Kassio Nunes Marques asked for more time to study the case, as he only joined the Supreme Court four months ago.
It is expected that he will vote against Moro and, furthermore, another judge who voted in favor of Moro in 2018 has now said that she wants to amend her vote.
Everything seems to indicate that Lula will win this battle he’s been fighting for five years to prove his innocence, although several complaints, even from his former Finance minster, Antonio Palocci, and other proven acts of corruption have tarnished his government’s reputation.
In 2018, Lula’s sentence from Moro and that of the appeals court, the Federal Regional Court, prevented him from running for president. The military pressured the Supreme Court not to release him for a habeas corpus, since the PT was already thinking of replacing their candidate, Fernando Haddad, with Lula, their top leader. Bolsonaro defeated Haddad in the elections.
Lula’s election campaign will benefit from his government’s legacy of reducing poverty and inequality, with economic growth and greater citizen participation. Corruption charges are cooling down as a factor for his rejection, in the face of Bolsonaro’s disastrous handling of the COVID-19 pandemic and his socio-economic policies, as well as his attacks against democracy.