Former Brazilian President Luís Inácio Lula da Silva was released from prison on Nov 8, the day following the original publication of this article.
With the latest ruling from the Brazilian Supreme Federal Tribunal, Former Brazilian President Luís Inácio Lula da Silva should soon be set free.
In a 6-to-5 vote, Brazil’s highest court has reversed its position allowing imprisonment after a conviction following a first appeal. The decision means those convicted of non-violent crimes cannot be imprisoned until all their appeals are exhausted. Lula falls squarely within this category.
This ruling by the country’s highest court should not have been controversial. The Brazilian Constitution of 1988 unambiguously states that one cannot be imprisoned until all appeals are exhausted. The Brazilian Order of Attorneys, which represents lawyers over the entire country, has advocated for no imprisonment until the exhaustion of appeals, as have several other organizations representing Brazilian lawyers.
What is the real issue?
The controversy was not legal, but political. Tossing aside the constitution, the Supreme Federal Tribunal affirmed its support for imprisonment before exhaustion of appeals in February 2016. This was at the height of Car Wash operation that sought to crush the Worker’s Party and, more broadly, the entire Brazilian left. The impeachment of President Dilma Rousseff of the Workers Party unfolded in the background. The Brazilian right wing that would eventually bring Bolsonaro to power was emboldened, mobilized and on the rise.
The Car Wash operation yielded great power by combining early imprisonment with “delação premiada”, a legal provision for awarding sentence reductions to defendants who incriminate other individuals. The threat of imprisonment before exhausting appeals gave a much stronger incentive for defendants to tell investigators whatever they wanted to hear — be it truthful or not — in order to save their own neck.
These “legal instruments” put the Car Wash operation on par with the Spanish Inquisition. Accusations squeezed from defendants and convicted individuals took center stage while an unquestioning corporate media whipped up public discontent and support for new convictions even when material evidence was lacking or absent.
These legal tactics provided the basis for convicting Lula without proof and sending him to prison, removing him from the presidential race which he was nearly certain to win and paving the way for a Bolsonaro victory. The Supreme Federal Tribunal would hold fast to its position in additional rulings through the 2018 elections.
Ruling on Lula’s freedom a victory for the people’s movement
The shift in the Supreme Federal Tribunal’s latest ruling is not accidental. It comes amid a changing political tide in Brazil.
The reputation of the Car Wash operation was dealt a severe blow by The Intercept’s publication of messages exchanged between Judge Sérgio Moro and leading Car Wash prosecutor Deltan Dallagnol. The messages showed that Car Wash prosecutors were deeply concerned with preventing a victory for the Workers’ Party in the 2018 presidential elections. Worse yet, they revealed Moro worked hand-in-hand with prosecutors to help them build the case against Lula rather than functioning as an impartial arbiter. Moro is now the Minister of Justice in Brazil, rewarded by Bolsonaro for making his electoral victory possible.
While the Car Wash operation unravels, the Free Lula campaign has mobilized worldwide support. In Brazil, left and progressive forces from a broad array of political parties and organizations have joined hands in demanding freedom for Lula. At its core, the campaign is a repudiation of the abuse of Brazil’s legal system for political ends. In a country where the memory of military dictatorship is still alive, the call for Lula’s freedom is a defense of the right of Brazilians to choose their own leaders via democratic means.
Despite great pressure from military generals, congressional representatives, and ardent supporters of Bolsonaro from Brazil’s extreme right targeting the Supreme Federal Tribunal, the new correlation of forces caused the scale to tilt on the side of justice. The Supreme Federal Tribunal’s ruling does not exonerate Lula, but should result in his release while his appeals are pending.
Lula’s freedom will be an immense victory for the Brazilian left and an unprecedented defeat for the Car Wash operation whose legal power has been largely unchecked up until now. It comes at a moment when the reactionary Bolsonaro government is struggling to keep its footing. Coming on the heels of progressive popular uprisings in Chile and Ecuador, it stands to bring new energy into the mass popular movements of Brazil and Latin America.