The imprisonment of former president Lula takes place against a background which is complicated at best and murky at worst.
The case against him is as follows: Lula’s wife, who died two years ago, had been eligible to purchase a $0.5 million duplex apartment in the seaside resort of Guarujá in São Paulo state, but subject to paying for an upgrade which was undertaken by OAS, a company belonging to the notorious construction giant Oderbrecht. She did not pay the sums, and signed no deed or transfer, thus renouncing her title, but the upgrade went ahead anyway.
Despite the absence of any documentation or property title, Judge Moro said this proved she and her husband were the de facto owners. The judge therefore sentenced Lula to nine years in jail – a sentence raised on appeal to 12 years, on the basis that this was an unwarranted payment to the president. Under Brazilian law he did not have to specify a quid pro quo.
Resistance Camp set up by PT supporters after Lula’s arrest. Video report: Telesur
Some, perhaps many, Brazilian intellectuals say that this and the entire Lava Jato operation, plus the impeachment of Dilma Rousseff, have been part of a vast plot to prevent Lula from running for president this year. The severity of the sentence and the unseemly haste with which it has proceeded through the courts mark a conspicuous contrast with the usual slow progress of such cases. There is also, a suspicious consistency between the verdicts of the original judge, Sergio Moro, and the members of the Appeals Court. These matters raise questions about the impartiality of judge and courts.
Spectacular leaks and a show arrest
There are other troubling features. As he closed in on Lula, prior to his arrest, Judge Moro leaked a recording of a telephone conversation between Lula and the President in which she discussed appointing him as her Chief of Staff. The judge’s action was scandalous, (though some might say Dilma’s manoeuvre, which would have made Lula immune from prosecution, was just as much so). Then Moro undertook a spectacular ‘show’ arrest of Lula when force was not needed to summon him for questioning. That was also shocking, especially when the target was a former president.
All this is taking place within a complex web of inquiries, proceedings, plea bargains, verdicts and sentences known as the Lava Jato case. Among its victims are businessmen, former politicians, and political operators from all the main parties. Some of these are now serving very long sentences. Sitting members of Congress, however, are immune so long as they remain in office (more than half the 594 senators and deputies have charges outstanding against them). These inconsistencies are beginning to bring the system into disrepute.
The Brazilian judicial system is indeed a strange beast. Judges at all levels, including those on the Supreme Court make political statements, publicize their disagreements with each other and even speak in public about cases before them.
A justice system which magnifies tension
A professor of Constitutional Law at the University of São Paulo recently described the judicial system’s innumerable contradictions, the abuse of privilege and irresponsible behaviour of its members, and its incomprehensible delays in some cases and haste in others. All these have caused it to become a source of tension rather than a moderating power in the country’s democracy. Moro himself has undertaken quasi-political speaking tours to New York, London and Germany where he is applauded by his fans and shouted down by his critics. He merely received a ‘rap on the knuckles’ for the gross violations mentioned above. Respect for precedent is weak and often non-existent, as we saw in Lula’s appeal for habeas corpus to be allowed to stay out of prison while his second appeal was being processed. The Supreme Court itself has ruled inconsistently in identical habeas corpus cases involving political figures in recent years.
Brazil has thousands of judges and they constitute a privileged and immovable self-governing corporate body. The city of São Paulo alone has 2,275. They earn about $10,000 a month and 680 of them receive a housing allowance despite owning properties of in the city.
If justice is not seen to be done then the judicial system, the last bulwark against a lawless society, loses all legitimacy and the same may be true of elections to Congress. Some would retort by saying that swathes of the country’s urban fabric are already in a state of permanent lawlessness. The endemic violence which plagues low-income neighbourhoods in big cities appears to have little directly to do with party politics and everything to do with gang warfare, racketeering and control of the drug traffic. But two weeks ago, politics and gang warfare converged in the contract killing of a municipal councillor in Rio: Marielle Franco had gained a broad-based following precisely for her attacks on those sources of violence, and her murder was surely intended as a warning to others.
Marielle Franco was assassinated on March 14. Three weeks later, on April 8, Carlos Alexandre Pereira, a community activist, was shot dead in Taquara in the Rio’s Zona Oeste, two days after councillor Marcello Siciliano, to whom he was an advisor, had spoken to police investigating Marielle’s murder. Witnesses alleged that Pereira’s killers shouted ‘Enough of this, we have to shut his mouth’.