Yesterday, January 24, the higher federal tribunal based in Porto Alegre rejected former president Lula’s appeal against his conviction on corruption charges by the lower court of Judge Sergio Moro in Curitiba, the court that is responsible for the Lava Jato anti-corruption investigations. The three judges who composed the Porto Alegre second instance tribunal were unanimous in confirming Moro’s guilty verdict of June 2017, and increased Lula’s prison sentence from nine years and six months to twelve years and one month.
This case, the first to be concluded of a series that has been launched against the former president, revolves around the claim that an apartment never owned nor occupied by Lula represented a payment for illicit services rendered to the OAS construction company. The principal direct support for this claim comes from the plea bargain testimony of former OAS president Léo Pinheiro. The fact that Pinheiro initially gave evidence that absolved Lula but changed his story later under pressure from Moro might have been a cause for concern anywhere other than Brazil. So might the fact that the first judge to speak, João Pedro Gebran Neto, the relator of the appeal process, is a personal friend and admirer of Judge Sergio Moro. It was the recommendation to increase Lula’s sentence at the end of Gebran Neto’s three hour assessment of Moro’s ruling that attracted most attention, but Gebran Neto also amended his friend’s sentencing in another way, by further reducing the sentence that Moro had handed down to Léo Pinheiro in return for his cooperation. The next judge to speak, Leandro Paulson, coincided completely with what his colleague had said, but focused his own attention in particular on the case for putting Lula at the centre of the corruption schemes that involved the state oil company Petrobras, a position which the last judge to speak, Victor Laus, reinforced.
Leaving the apartment that he has never owned or occupied aside, the problem that faces those who want to accuse Lula of personal corruption, as distinct from possible complicity in the recycling of bribe money into party election funding, is that there is very little money that can be followed to Lula, whereas there are literally bags of the stuff, along with much more up-market properties, that have been followed to politicians from other parties, including President Michel Temer, who, for the moment at least, enjoys protection from investigation because congress has voted against it twice. The arguments about Lula remain at the level of “he must have known” and “since he had the power, he must have used it”. “Why is there no evidence? Well, the more corrupt and criminal people are, the better they cover the tracks of their wrongdoing”. There are plenty of lawyers inside as well as outside Brazil who regard these proceedings as a judicial farce, tainted by Moro’s methods and trial by media as well as by problems of lack of proof. But leaving those debates aside, the tribunal’s insistence that there was nothing “political” about the case or their proceedings sits uncomfortably with these judges’ own contributions to trying to put Lula and the PT, and uniquely Lula and the PT, at the heart of all political corruption in Brazil.
So what comes next? Lula began the week as clear frontrunner in this year’s presidential elections. It is unlikely that the verdict, widely expected, will lose him many more votes in an ever-more divided country. The number of anti-petistas partying throughout the country after the tribunal returned its verdict was modest, and some of those who joined protests in favour of Dilma Rousseff’s impeachment do not support the campaign against Lula. The public vilification of the ex-president by coup supporters expresses strong forms of class prejudice, and Lula not only has a strong “popular” appeal but wider support across the class spectrum. Most (though not all) leaders on the left critical of the PT and “Lulism” have defended his right, given his level of popular support, to be a candidate for election, recognising that he is the best option in terms of immediate efforts to roll back the 2016 coup through the ballot box. The same reasoning naturally encourages the forces backing the coup to try to stop him at all costs.
Yesterday’s verdict certainly makes that a little easier. His conviction confirmed, Lula now becomes subject to one of the measures that the PT itself introduced to combat corruption, the “Clean Record Law” (Lei da Ficha Limpa). Because the appeal judges were unanimous in their verdict, his defence team can only ask for clarifications of the terms of their judgement, not challenge it. This process is likely to take only a few weeks, particularly in the light of the fact that Lula’s case was advanced to the top of the queue of pending cases by the tribunal, even though other cases involved charges of corruption. After that Lula can be hauled off to gaol, and the tribunal manifested itself in favour of carrying out its now increased sentence without further delay. But although the door is now open to declaring Lula ineligible to run for public office because of his conviction for corruption, this is the responsibility of different higher tribunals. His lawyers have various other options for seeking injunctions from both the Higher Electoral Tribunal and Supreme Court that can be used to buy time for Lula to contest the election and possibly even be elected president for a third time. (For further details, see https://www.cartacapital.com.br/politica/201clula-so-nao-comeca-a-campanha-em-agosto-se-o-pt-ou-ele-nao-quiserem201d, and http://www.bbc.com/portuguese/brasil-42797170). There are already precedents for this in the case of local government.
The PT has indeed responded to yesterday’s tribunal ruling by declaring Lula its official presidential pre-candidate for the 2018 election. Lula himself delivered a rousingly defiant speech in São Paulo. But leaving aside the fact that he may soon find himself in a prison cell, this entire strategy makes the fate of Brazilian democracy yet more dependent on judicial interventions, or more precisely, the normally slow pace of certain kinds of judicial processes. This is hardly a positive development in itself. The entire history of the coup has been punctuated by judicial decisions that have not displayed striking consistency when applied to politicians of different parties. Although Lava Jato has gaoled politicians of other parties besides the PT, including the PMDB’s Eduardo Cunha, the treatment of other key figures, such as the PSDB’s Aécio Neves, keeps the debate about political bias within the judiciary very much alive. The ferocity and scope of the efforts to criminalise Lula are consistent with the thesis that they are driven by a desire to completely discredit the achievements of the president and PT in order to advance a different political agenda that is also an uncompromising peripheral capitalist class agenda, inflected by the need to garner the support of socially illiberal and racist segments of Brazilian society. There is also, of course, a certain potential attraction in trying to make Lula and the PT take the fall for the corruption of the entire political class. It is ironic, but in a way symptomatic of the wider problem of Lula’s efforts to compromise with existing elites, that the PT has ended up being hoist on its own petard for having given the federal police and judiciary more autonomy to investigate the corrupt nexus between politicians and business. The problem is that the police and judiciary also reflect the value differences and class prejudices that divide Brazilian society in general, and some fail lamentably to adopt the impartiality required for an effective separation of powers and genuine adherence to the admirable principle that nobody is above the law, notoriously not normally applied to upper class Brazilians and their delinquent children. Furthermore, when it is judges who decide who can stand for election and gain office rather than the people as voters, democracy itself is diminished. In this particular case, the timing of judicial decisions would have directly political effects (in relation to the possibility of the PT proposing a substitute candidate, for example).
It is possible to be strongly critical of the PT governments and still conclude that ex-President Lula deserves a lot better recompense for his service to his country than he has received from the Lava Jato prosecutors and judiciary. Yet in the light of what the present Brazilian executive branch and congress are doing to that country, what is most disturbing about the situation is that the return of Lula to the presidency has become the “Plan A” without a “Plan B”. The PT got itself into many of its present problems because it could not govern alone. In Lula’s first term it tried coalition with smaller parties, some of which were more ideologically compatible with its perspective than others, but securing “governability” produced the mensalão scandal, followed by acceptance of the inevitable need to ally with the big beast machine of the PMDB in national government. Even after the PMDB as a party opted to go with the coup (despite the refusal of a few of its more principled figures), PT candidates in state elections are still negotiating alliances with peemedebistas where these are open to them. Paraná Senator Roberto Requião, who identifies with the left-leaning, labourist, legacy of Getúlio Vargas, might actually be Lula’s own preferred “Plan B”, and certainly belongs to the ranks of PMDB figures who merit respect. But the opposition to the coup needs urgently to project more figures into the national arena, and project them as working together towards a common agenda. Lula will certainly remain central to making that agenda appeal to voters, and will no doubt continue to make political capital out of his persecution through lawfare whatever happens. But any strategy to turn the country towards a more socially inclusive path of development needs to acknowledge that there is no guarantee that Lula will be able to secure re-election, or even that either he or his ordained successor will be able to govern if elected. The congress may seek to reduce the powers of the presidency if things are clearly going badly for the candidates favoured by the forces currently dominating the Brazilian House and Senate.
That the fate of Lula is generally perceived as so crucial is symptomatic of much deeper problems. Despite its partiality and biased results to date, Lava Jato and other anti-corruption investigations have damaged the credibility of, and public respect for, the entire party system and not simply the PT. Temer may not be in gaol (yet, since after the elections he will have served his purpose, like Cunha before him), but freeing him from investigation reinforces the perspective that the entire political class is corrupt, visible in the low scores in opinion polls received by all the candidates of the PSDB that have emerged to date. The ultra-right option of Jair Bolsonaro has managed to benefit from this motive for rejection of mainstream politics as well as the appeal of other aspects of his repugnant ideology, although he has been in politics long enough for people to have begun to ask him some embarrassing questions about his patrimony. The Globo media empire seems to be looking to promote “non-political outsiders” capable of exploiting the anti-political attitudes that are increasingly visible even amongst poor Brazilians, whilst serving the interests of the oligarchy of which Globo’s owners are part. The evangelical churches are also benefiting from generalised disillusion with party politics and the quality of Brazilian democratic life, as people seek other kinds of solutions to their problems. The Brazilian left has yet to take effective stock of the extent to which the individualism and values of a neoliberalized market society have advanced in Brazilian society, in part as a result of the PT’s own acceptance of these models.
All these tendencies could greatly complicate voting patterns and results in this year’s elections, assuming that they take place normally. But beyond this, we need to think about the still deeper problems that democratic regimes are facing throughout the world as a result of the failures of neoliberalized social democracies, which Lula’s Brazil also exemplified. High levels of abstentionism or null voting are becoming a major problem for movements that seek to represent a political left, “centrist” candidates favoured by global capital do not need to fight their campaigns by laundering kick-backs, and the populist right can feed on a rich pulse of social resentment across different social classes. All these tendencies are present in Brazil. Which way things will go if a greater number of citizens lose faith in the possibility of changing anything by voting as a result of not being allowed to vote for Lula remains an open question. What seems clear, despite statements made by Brazilian Attorney General Raquel Dodge in London yesterday, not related to Lula’s case, on which she correctly declined to comment, is that the judicialisation of politics on lines that large numbers of people see as serving the agenda of a coup and/or reproducing class prejudices is not promoting “institutional stability” or “an environment of constitutional democracy”, however many paragraphs of the constitution the judges read out in court.