2018 could not possibly have begun in a more challenging way for Brazilian democracy. On January 24th, a Federal Appeals Court in Porto Alegre, in the south of the country, upheld a conviction against former President Luiz Inácio Lula da Silva for corruption charges. As the most popular President in Brazilian history, with 83% of Brazilians considering his government great or good when he left office in 2010, and an acclaimed leadership in Latin America, this decision would already have been quite a shock. But this is even more true because Lula was a leading contender in the coming national elections in October 2018 (with the polls placing him with in first place). Since the decision could possibly prevent him from running for the presidency, it raised a serious debate over the legitimacy of the judiciary to undertake such an encroachment on will of the people.

Representative Jair Bolsonaro, who is in second place according to those polls, is a far right-wing politician who has not only defended torture and the past military dictatorship, but also is an advocate of anti-gay and pro-gun movements – The Economist named him “Brazil’s Donald Trump.” A symptom of a country afflicted by a severe political crisis and currently governed by the most unpopular president ever in Brazilian history who was accused of racketeering and obstruction of justice by the Attorney-General of the Republic, it is no wonder that populism is knocking on the door. The growing anti-political sentiment and polarization, which history has proven to kill democracies, is naturally raising red flags as elections loom. Yet, if that conviction will likely prevent Lula from running despite the will of the people based on a law aimed at “moralizing” the political system, how can such “morality” deal with a candidate whose background clearly places him on the other side of democratic values? And what is the “moralizing” role of the judiciary before the popular will, if there should be one?

Lula was convicted in a controversial decision by Judge Sérgio Moro, who is presiding over the so-called “Car Wash” probe, the biggest corruption case ever in Brazilian history and which has already incriminated many influential politicians and businessmen. According to that decision, OAS, one of the biggest construction firms in the country, had donated an apartment to Lula in exchange for lucrative contracts with Petrobras, the state-controlled oil company, to build two oil refineries. The specifics of the case are, however, blurrier: Lula never had either ownership or possession of that apartment, which belongs to OAS. Moreover, the main evidence of bribery in this case stems from a plea bargain with the owner of OAS in exchange for sentencing leniency for his cooperation. Finally, the connection of the apartment with the negotiations between OAS and Petrobras seems to fail the minimum threshold of admissibility as evidence, at least according to some high-profile criminal lawyers. Despite that, the Federal Appeals Court unanimously upheld the lower court’s decision, but made it even harsher, increasing his time in prison from nine years and six months to twelve years and one month.

As expected, after the Federal Appeals Court’s ruling, people from distinct political views took to the streets and some lawyers and scholars began to interpret the decision. Interesting enough, how the next elections would be affected once Lula is barred from running became a central topic, because that decision does not immediately have this effect. Though it is cause for ineligibility, such outcome will only be confirmed once his candidature is filed before the Superior Electoral Court, whose deadline is August 15th. Until then, he could appeal to higher courts against that ruling in order to obtain an injunction allowing him to run. If he succeeds, though, since a preliminary injunction is precarious and temporary, it could be overturned in the middle of the elections, which would spark an even greater turbulence.

Left-wing news outlets clearly depicted the scenario as a typical fraud, arguing that “there is something rotten in the Brazilian judicial system.” The Intercept called it “a flawed process” from a system that is “rigged.” Also many well-known lawyers saw many loopholes in that conviction. On the other hand, more conservative newspapers avoided going into the details of the conviction and concentrated rather on what Brazil should expect in the next elections. The Economist, for example, mentioned that “the confirmation of Lula’s guilty verdict will not deter him from running… The presidential campaign has, in effect, started in a courtroom.” The Financial Times, in its turn, said that “if the ex-president is barred, his rightwing opponents will lose their main political foil.” Despite these distinct approaches, one thing is certain: not only does the electoral game this year defy any forecast, it also challenges the very role of the judiciary during elections.

The major dispute lies in the enforcement of the so-called “Clean Records Act” (Lei da Ficha Limpa), a statute passed during President Lula’s second term, which, among other hypotheses,[1] bars citizens from running in elections if he or she is condemned by a court of appeals for any of the criminal offenses described in the statute, such as money laundering, concealment of property or crimes against the public administration and public property. Originating from a broad popular movement headed by many NGOs, it is aimed at curbing corruption in politics. More than 1.5 million citizens subscribed to the petition both physically and electronically and, as popular pressure increased, it was rapidly approved by Congress and sanctioned by President Lula in 2010. Despite its good intentions, controversies arose since it seemingly went against some constitutional provisions and Supreme Court precedents. Particularly striking was its contradiction with the Supreme Court’s then-longstanding understanding that the presumption of innocence prevails if any appeals are still pending, and thus that political rights should be suspended only upon exhaustion of all appeals.[2] The Supreme Court, however, upheld its constitutionality by a tiny majority.[3]

Leonardo Barbosa, certainly one of the brightest constitutional historians in Brazil, brings some valuable insights about this topic. According to him, that statute, though marked by this broad popular momentum and certainly motivated by the noblest ends, is not that different from some legislation enacted during the military dictatorship aimed at manipulating elections: “curiously, the original intent of the partisans of the “Clear Records Act” in 2009 was to reestablish a formula imposed during the dictatorship, which was declared unconstitutional by the Supreme Court in the early 80s.”[4] His argument goes further and reaches the core of the debate on how such a law may establish a certain paternalist morality over the exercise of citizenship: “The ability of law to help solve social and political problems is directly related to our wisdom in identifying what problems can actually benefit from more ambitious legal regulation. What is the most plausible task for the Law? To ensure information is available and reliable to the electorate, or to make political decisions on their behalf?”[5] Finally, when it comes to the judicial system, which will enforce this law, this paternalist behavior becomes even more severe, so another avenue should be embraced to curb corruption in politics: “The alternative is to develop stronger tools of horizontal and vertical accountability (especially the former) that rely on transparency rather than on sometimes opaque language of judicial institutions managing political rights for the sake of public good.”[6]

The rise of judicialization in such a sensitive political matter, which both reaches the citizen’s right to run elections and the citizen’s rights to vote for whoever he or she see fit, is, more than ever, at the core of this very moment in Brazil. It is not only a matter of who is going to be the next President. It is also a matter of who or which institution has the final say in deciding who can be the next President and who citizens may vote for. This context gets even more troubled when some legitimate questions are raised based on the whole chronology that led not only to Lula’s conviction but also to the rapid dismantling of the Left after President Dilma Rousseff’s impeachment just some months within her second term. It would be extremely naïve to believe that the situation Brazil is currently enduring is merely institutional maturity as corrupt politicians have finally been sentenced to prison, even though some progress has indeed been made in tackling corruption. This context becomes more dramatic when there is a strong contender running in second place who is the incarnation of the most undemocratic values. Therefore, the Brazilian political crisis has turned into a clash of moralities: one that will likely not be available for the citizenry to support and one that, though available, is the opposite of the democratic values Brazilian constitutionalism is based upon.

Which morality will prevail is naturally just one of the many unknowns of Brazil’s near future. The Supreme Court and the Superior Electoral Court will be certainly called to reexamine the constitutionality and extension of the “Clear Records Act,” and Lula will be able to keep running possibly for some time. On the other hand, unlike Donald Trump, Jair Bolsonaro will be running under the banner of the Social Liberal Party (PSL), which is very small and might not bring him the structure he will certainly need when the campaign is in full steam. In the meantime, many other candidates are already launching their campaigns, though especially the center and right-wing parties are extremely divided and no contender has reached enough support for being seriously considered in play. Such pluralism is not, on its own, a problem, but it reveals how fragmented and polarized Brazilian society now is, especially in view of the last elections when the many parties formed large coalitions in favor of some few strong contenders for President. The question is, however, what the role of the judiciary should be in this context. There is naturally right and wrong here, but, recalling Ingeborg Maus’s words, should the judiciary really act “as the superego of society?”[7]

[2] For a very interesting analysis of the “Clean Record Act”, see Leonardo Barbosa, The Right to Run for Elected Office and the “Clean Record Act” in Brazil: unfair fighting for fair elections?, World Bank, Washington, October 14, 2014.

7 Responses

Interesting contribution Juliano. I do not see into Brazilian politics, but may I ask you a couple of questions that came to me when I was reading your text?

1) If the information about Jair Bolsonaro is readily “available and reliable” and voters elect the candidate is this a problem?

2) If the general will has the power to exculpate individuals, can it also amend the values underlying Brazilian constitutionalism (opting for the morality opposed to the current const.settlement)?

3) If the Clear Records Act has been adopted on a popular initiative, are the courts not acting in concert with the general will? Is the alternative a selective enforcement only to “unpopular” candidates?

4) +a comment> It seems to me that although the content of the CRA may well be the same, context is rather different to the time of dictatorship.

Again, this is an interesting piece. Prof Tushnet recently wrote a speculative essay that seems to raise similar theme.

Thank you for your comments and questions. There is a lot going on now in Brazil and, of course, this is not a simple subject… I’ll follow your topics:

1) My opinion is that regardless of whether it is Lula, Bolsonaro or whoever will be a candidate, the judiciary should not be the one defining who is eligible or not. Personally, I think Jair Bolsonaro is, by far, the worst-case scenario and is indeed a serious problem for Brazilian democracy. But this is a matter to be decided by the citizens, not by courts.

2) Tricky question and this would need a broader debate. But, briefly, I can say that this could lead to the longstanding debate over constitutionalism and the limits of the sovereignty of people if we go further. In any case, It does not necessarily mean, first, that the individual was exculpated by the general will once elected, nor even that the majority, by the rules of the game, has the right to radically reshape constitutionalism, though, politically, the reality has proven more nuanced than the theory in such a matter.

3) The problem is: should the court be acting in concert with the general will? And, naturally, the alternative does not apply based on my previous argument.

4) It is certainly a distinct context, and I’m not suggesting that it is simply a repetition of history. But the argument of “moralization”, “corruption”, or any other such general subject has been strategically used not only by dictatorships but also by so-called democracies. It is a matter of how and to which extent. Democracies have abused of constitutionalism by distinct means. We just need to look around and see this same strategy taking place in other democratic countries…

And thank you for letting me know of this Tushnet’s piece. I’ll read it carefully!

2) If a court finds that the individual committed a crime (determination of guilt) but his/her sentencing is prevented due to a favourable election result, this seems to raise questions about the purpose and effect of the criminal law in general. Unless, of course, the President was not impeached and retried later on (maybe only after their term of office?).
The Czech Parliament recently stripped their PM of immunity. I believe that Czech PM Babiš has been already charged with fraud while running for the office.

3) Well, could the Court suspend the CRA until they reexamine its constitutionality? Would this be a concrete review case or ADI?

4) Right.

There has been another interesting blog on the topic of “moralising” politics: Pakistan’s Supreme Court to Purify Parliamentarians. Thank you for your excellent insights on the situation in Brazil! I will make sure to borrow and read your book on judicial activism.

It appears to me that Bolsonaro is more akin, as much in temperament as in his attitude towards public affairs, to the Philippine’s Duterte. But that is a mere quibble.

And if I may briefly react to one of Simon Drugda’s interesting questions, I believe that the undoubted democratic legitimacy of the Clear Records Act would indeed be strengthened if the judiciary were less partial in its prosecution of corruption and money laundering cases.

In other terms, the Act seems to have been “weaponized” by a part of the judiciary (and the “Car Wash” investigation in particular) in order to structure the democratic choices available to Brazilian citizens, reducing the scope of choice on the left-side field of politics, while leaving notoriously corrupt and equally questionable political forces on the right free to run unimpeded.

One response on the left might of course have been to produce electorally viable candidates other than Lula. But then, such candidates can’t be fabricated out of thin cloth — as evidenced by the catastrophic end of Dilma Rousseff’s political career. For better or for worse, Lula’s political charisma/capital is not easily transferable, and this has led his party, and most of the left, into a political cul-de-sac.

Compliments on your lucid contribution on such a complicated and emotionally engaging subject as the current Brazilian political conundrum.

Concerning the “Clean Records / Clean Slate Act” (“Lei da Ficha Limpa”), it’s interesting to mention that the Inter-American Court of Human Rights has ruled that a similar legislation violates the 23.2 article of the American Convention on Human Rights regarding the “Right to Participate in Government”. The international court ordered the national act to be revoked and demanded that the officials let the candidate who was excluded be allowed to run for office (“Lopez Mendoza v. Venezuela”).

In Brazil, the “Regional Electoral Court” for the state of São Paulo (Tribunal Regional Eleitoral de São Paulo) has considered that this international precedent is not applicable, however. According to the verdict of this court, differently from the Venezuelan case, the “Ficha Limpa” is — supposedly — a manifestation of the “human right of good governance”. Likewise, the “Ficha Limpa” was considered constitutional by the Brazilian Supreme Court as your paper has mentioned.

In this sense, I would like to know what is your perspective on the “judicialization of politics” coming from an international court.

I believe this is an interesting discussion because one could say that an international judicial organ is more prone to be impartial since it is more an outsider than a national court and, thus, theoretically, less persuaded by internal politics.

On the other hand, it could be argued that an international court that is interfering with a State’s politics is even more problematic to democracy and self-determination than a national court.

Does the rise of the judicialization of political matters on an international level present the same controversies as its national correlate?

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