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5 February, 2018 00:00 00 AM
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What’s next for Brazil?

Aline Piva

Brazil has just taken another step toward the dismantling of its democracy. On January 24, an appeals court confirmed a previous ruling against former President Luiz Inácio Lula da Silva (Workers’ Party), sentencing him to over 12 years in jail. Although there is no consensus among legal experts about what will happen next (some say Lula could be incarcerated by the end of next month), the political implications of this decision are, without a doubt, enormous.

Lula’s sentencing was met with protests both in Brazil and internationally. The legality of the process against him has been questioned, not only due to lack of evidence, but also because it is probably one of the most emblematic cases of how the legal process can be instrumentalized to pursue a political agenda. However, the case against Lula is just another link in a long chain of events that has led to the steady deterioration of democracy and the Rule of Law in Brazil.

Much like the unconstitutional impeachment that led to the removal of democratically elected president Dilma Rousseff, what we see now is the result of a coordinated maneuver to undermine the political project that was being implemented by the Workers’ Party. This political maneuver gained traction with the support of Brazil’s political and economic elites, aided by the judiciary and the media.

The Case Against Lula

On July 2017, a low-level judge, Sérgio Moro, charged Lula with nine and a half years in jail for passive corruption and money laundering. The prosecution claims that the former President received a bribe from one of Brazil’s largest construction companies, OAS, in the form of a beachfront apartment. In exchange, Lula allegedly provided OAS with an undue advantage on contracts with Petrobras, Brazil’s state-owned oil company. The charge of money laundering, subsequently, is related to Lula’s alleged concealment of the property.

Several experts question the legality of the case. One of the most striking features of the entire process is the lack of evidence. After three years of a massive police operation — which has reportedly violated basic principles of due process, acted against the Brazilian Constitution, hindered the Defense, and deprived Lula of his basic human rights — the prosecutors were still not able to produce any concrete evidence to support their case. In the 218-page document presented by Moro, he failed to provide documentary proof that Lula was indeed the owner of the apartment. Furthermore, there were no elements that could assert that Lula was the author, co-author, or shareholder of the contracts deemed detrimental to Petrobras, or that any unlawful acts were carried out by OAS. Rather, Moro’s case is based on the testimony of José Adelmário Pinheiro Filho, also known as Léo Pinheiro, a former OAS executive who had his own sentence reduced by more than 80% after he changed his testimony to accuse Lula of illegal deeds. Pinheiro is not a witness, but rather, a co-defendant in this case, and as such he is under no legal obligation under Brazilian law to tell the truth or to present any proof for his testimony.

What began as a (much-needed) investigation into the historical corruption that has been afflicting Brazil for decades rapidly acquired a flagrant political character. According to the Frente Brasil de Juristas pela Democracia (Brazil Front of Jurists for Democracy), he swiftness of the appeals court to review Lula’s case is also suspicious. Other proceedings were postponed so that Lula’s trial could take place on January 24, the first available date after the summer recess. For Supreme Court Justice Luis Roberto Barroso, it was important, “in the name of judicial security and stability of the democratic game, […] to define very soon what the rules will be, who can be a candidate”. If there was any doubt, the justice’s statement makes it even more evident that what is at stake is not the prosecution of a corruption case, but rather the upcoming presidential elections.

Lula’s conviction perfectly shows how the law can be misused for political purposes. There is a judge that has carte blanche to act beyond the scope of the Law, who frequently goes to the media to taint the image of the accused, and who uses his position for personal gain. Neither impartiality nor a fair trial can in any way be expected. As Juarez Cirino dos Santos, a Brazilian lawyer that has been working very closely with Lula’s defense team points out, the

Judicial violence against the constitutional principles of due process, even if examined only from the general point of view […], and even disregarding more visceral nullities that definitely invalidate the process, already configures sufficient material to determine the complete annulment of the criminal proceedings against Lula.

But one might wonder: if the case against Lula is so obviously botched, how has it manage to get this far?

“Judicial Activism” and Criminalization of Politics

For anyone who does not follow Brazilian politics closely, the political turmoil that has engulfed the largest country in Latin America during the past two years may have come as a shock. Yet the level of breakdown of the Rule of Law that Brazilians are currently experiencing cannot be achieved overnight. There needed to be a collective mindset that allowed a progressive undermining of individual and political rights in the name of the “greater good,” with little to no reaction. It is something similar to the “war on terror”: first, a state of constant fear must be created – fear for personal well-being, fear for life, fear for anything deemed valuable. Afterwards, an enemy must be chosen. Lastly, new, damaging jurisprudence is introduced on a case-by-case basis in order to make people feel that they are not directly affected.

The writer is a Brazilian political analyst based in Washington, D.C.

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Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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