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Brazil’s Cinderella: to prison, or to the ball?

The appeal court verdict in Porto Alegre went against Lula. What will happen now in the presidential elections?



São Paulo, 26 January 2018. Not only was Lula’s appeal rejected and his sentence increased to twelve years by the court in Porto Alegre on 24 January, but in Brasilia another judge banned him from travelling to Ethiopia on a previously planned trip to take part in a FAO conference on food, to prevent him ‘asking for political asylum’. Lula’s trial and sentence have dominated the week in Brazil.
The judgement against Lula changed the daily routine in Porto Alegre. Video: Sul21 on YouTube TV and radio stations transmitted live from the courthouse, where a temporary press room had been set up for over 300 journalists, 50 of them from other countries. The three judges were immaculate in their black togas, ready for their day in the spotlight. Even the waitresses who plied silver coffee pots behind them wore toga-like uniforms.
Lula announces that he will go to Porto Alegre. Photo: Nossa Politica
The trial lasted 9 hours, although under court rules, Lula’s lawyer, the young, bespectacled Christian Zanin was only allowed to speak for 15 minutes. The judges rejected his argument that there was no actual proof that Lula owned the triplex apartment allegedly given to him as a bribe in exchange for arranging Petrobras contracts for the construction company OAS, and instead accepted word for word the 250-page sentence passed by judge Sergio Moro on July 12 2017. They also increased Lula’s sentence from 9 to 12 years to be served in ‘regime fechada’, or closed prison regime, as opposed to open or semi- open. The unanimous verdict means that although practical aspects of the sentence can be questioned, the merit of it cannot be the subject of a further appeal.

Indignation and defiance

The harsh verdict was met with general indignation and protests and defiance from PT leaders, some of whom called for civil disobedience. Theologian and author Frei Betto commented that the Lava Jato prosecutors had shown zeal with regard to Lula but great ‘leniency’ with politicians who, in spite of damning evidence on tape and film, remain free and unpunished. None more so than President Temer. Lula himself was defiant:
I want them to tell me what crime I committed. I have been condemned for an apartment which I haven’t got. I’ve told Guilherme Boulos (co-ordinator of the MTST homeless people) to send his people to occupy it. If it’s mine, let them occupy it.
The question now is what happens next. Lula will not be imprisoned until the same appeals court in Porto Alegre hears his lawyer’s appeal against aspects of the sentence, the so called “embargos declaratórios”. This will take until the end of February or March.

Over to the Supreme

But Lula can also appeal against his sentence to higher courts, first the STJ (Higher Justice Court) and, if he is unsuccessful there, to the STF, the Supreme Court. Meanwhile the Supreme Court is expected to look again at a decision it took in 2016, which, by a very narrow margin, allowed imprisonment after a regional appeal court decision, instead of the previous system which allowed an accused person to remain free until all his appeals, up to the highest court, had been heard and “transitou em julgado”. This was the system which enabled Paulo Maluf, for example, accused of embezzling public funds while mayor of São Paulo in the 1990s, to avoid imprisonment for over 20 years, so that when finally his arrest was ordered last December, he was 86. If the Supreme Court judges change their mind, the same would apply to Lula. Unlike most of the other politicians who have been charged with corruption under the Lava Jato investigation, Lula is not entitled to the so called ‘privileged court’ as a member of congress or the government. His status as former president gives him no privileges in prison – and as he has no higher education he will not be entitled to special conditions but could be treated as a common prisoner. Lula also faces six further indictments on different corruption charges, mostly involving traffic of influence while in or out of government, and all based on evidence from plea bargains – where others, mostly senior figures in the companies embroiled in corruption, exchange evidence (often of doubtful veracity) for lighter sentences.

See how they run

The really big question of course is what this mean for this year’s presidential election. Lula has been leading the polls for months, by a huge margin, almost 40%. But will he still be able to run? The PT’s answer was to announce immediately that Lula is their candidate, come what may, and there is no Plan B, no alternative candidate. But there is plenty of speculation that if Lula is prevented from running, because by the time of the election in October he may well be in prison, then either Jacques Wagner or Fernando Haddad will take his place on the PT ticket. Even if Lula is not actually in prison, he will almost certainly be barred from running by the Electoral Court (TSE) under the Ficha Limpa (Clean Slate) law, ironically approved during Lula’s government. Which raises the question: can Lula transfer his popularity, unrivalled at present in Brazil by any other politician from left or right, to another candidate? Historian Daniel Aarão Reis believes he can. “While people understand that Lula took part in the mess that the Brazilian political system has become, they are pragmatic: the politicians are all involved, but let’s vote for Lula because he had policies which favoured the poorer sectors”. If Lula is not allowed to run Reis believes this will weaken people’s belief in democracy, because Brazilian justice will be seen as unjust. “Democracy needs to be strengthened, not weakened.” Supreme court judge Marco Aurelio Mello agrees that Lula’s arrest before all possible appeals have been exhausted, would “set the country on fire, it is of concern to all those who want social peace.” Political scientist Renato Lessa believes that Lula’s arrest would not just divide his votes among other left-wing candidates, but disorganise the entire presidential race, because Lula also represented an alternative for the centre of Brazilian politics. “Lula represents the centre if you look at his two times in power. He negotiated with all political forces, both conservative and left. He entered into dialogue with the unions, industry captains, agribusiness. No other candidate has this profile. The conservatives have no dialogue with the popular movements. Those on the left have no capacity for negotiating with capitalists. “ But many in the PT and the social movements like the MST believe that now is the time for the party to adopt a more radical attitude and agenda. The judicial case against Lula, based on circumstantial evidence, is political, and the aim is to stop him running for president. Lula himself says, “there was a pact between the judiciary and the press that it was time to put an end to the PT. They won’t accept social mobility any more”, referring to his government’s programmes to expand the number of universities, provide student funding, send students overseas and offer family allowances and affordable housing.

The ugly sisters

What seems clear is the dearth of candidates on the left, the right or the centre of the political spectrum who can fill the vacuum left by the potential absence of Lula. Would be candidates known to be in the running include the left’s Manuela d’Avila, PC do B, the centre left’s Ciro Gomes for the PDT and the PPS’ Cristovam Buarque. In the centre is Rede’s Marina Silva. The right has the PSDB’s Geraldo Alkmin, and the Democrats’ Rodrigo Maia. And the far right has Jair Bolsonaro, preacher of hatred and intolerance, who is second in the polls to Lula. The biggest party of all, the PMDB, has no one. But, like so many Ugly sisters, all are vying to try on the shoe of popularity, while the only person it really fits, left with a pumpkin and a couple of mice instead of a glittering coach, contemplates the real possibility of a prison cell. So the three judges in Porto Alegre have thrown a huge spanner into the electoral machine, and we begin 2018 without a clue as to how Brazil will look at the end of the year.

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Jan Rocha's Blog

Jan Rocha is a former correspondent for the BBC and the Guardian and lives in São Paulo, Brazil. She is the author of a number of LAB books, and contributes this regular column for LAB, known for its incisive analysis of current Brazilian politics.

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