Brazil will head to the polls on October 7 in what is set to be the most polarizing presidential race in living memory. While the final ballot is beginning to take shape, there is still a question mark over the candidacy of former president Luiz Inácio Lula da Silva (Workers’ Party), who may be ineligible to run after his impending appeals court decision on charges of corruption. The imbroglio surrounding Lula guarantees that however the 2018 election turns out, both sides will feel they have reason to call foul play.
As the polls stand, Brazil is largely divided between Lula (polling at between 34 and 37 percent) and far-right candidate Jair Bolsonaro, who lies in second place with between 17 and 19 percent. Centrist and moderate right-wing voters are currently splintered, with their intentions shared out among a handful of as-of-yet unlikely contenders.
While the race between the two front-runners has been billed as one of two extremes, the polarization between them is rather asymmetrical. On the one hand, Jair Bolsonaro (of the poorly named Social Liberal Party, PSL) is a hard-right demagogue with a propensity for brash statements and glorifying violence. Lula, meanwhile, is not the political antithesis of Bolsonaro, that is, he is not a left-wing radical. In fact, his time spent as Brazil’s president (2003-2011) showed him to be more of a pragmatic centrist or moderate leftist.
Though Lula holds a comfortable lead, he may not even be allowed to run come October, which hurls the election into uncertainty. Convicted of corruption and money laundering by Federal Judge Sérgio Moro in the Operation Car Wash investigations, Lula will stand trial before a Federal Appellate Court later this month. If his conviction is upheld, the former president would technically become ineligible to run for office.
However, the practicality of Lula being kept off the ballot is less straightforward. As FGV law professor Ivar Hartmann explains, the Brazilian justice system offers a range of appellate measures to the ex-president. “He can file a special appeal with the Superior Court of Justice, as well as make an extraordinary appeal to the Supreme Court,” says Hartmann. “Then it is likely he will file for a writ of mandamus from the Superior Electoral Court, in order to allow him to dispute the election.”
Regardless, if Lula is on the ballot on October 7, his opponents will call foul play and attempt to disparage the eventual election result, which, at this stage, is likely to end in a Lula victory. However, in a democratic catch-22, if Lula is barred from the ballot, the election will still be tarnished with claims of illegitimacy.
Lula’s defense team and supporters believe that a potential impediment to the ex-president’s candidacy is a political maneuver, an attempt to take Lula out of the race as opposed to the fair exercise of justice. This argument bears some scrutiny when we look at the speed at which Lula’s conviction has been processed. While the trial at the first degree largely followed procedural norms, the velocity at which the case has gone through the Federal Appellate Court has been astounding.
The court accepted the charges against Lula after only 42 days, less than half of the time this process usually takes (92 days). The rapporteur of the case, appellate judge João Pedro Gebran Neto, drafted his opinion in the space of 100 days, which is almost three times less than his average processing time of 275 days. What’s more, Lula’s trial, scheduled for January 24, comes less than two months after the issuance of the rapporteur’s opinion – the average time between opinion and trial at the Federal Appellate Court of the 4th Region is 102 days, almost twice the length of time granted to Lula’s case.
Hartmann downplays the validity of this argument, believing it is no more than “rhetoric of [Lula’s] defense”, and that their contention is impossible to be disproven. “If the processing of the case took longer than usual, the defense would say that the delay harms Lula’s chances. If it was to take exactly the average time expected, which is statistically unlikely, they would say the case should be processed faster in order to prove his innocence, or that it should take longer due to its complexity,” explains Hartmann.
Michael Mohallem, law professor and coordinator of the Center for Justice and Society at FGV Direito Rio, believes that while there is likely to be a sense of illegitimacy regardless of the outcome of Lula’s case, the reaction will be different depending on whether or not the former president makes it on to the ballot.
“If Lula is able to run,” he says, “there will be a feeling among certain parts of the population that the country’s institutions are incapable of prosecuting prominent politicians, causing significant frustration. However, if he is blocked [from running for the presidency], the perception will be that the judiciary is intervening in the election, thus damaging the entire democratic process.”
The aftermath of this year’s election is set to emulate that of the 2014 election, after which the defeated side refused to accept the final result, which culminated in the impeachment of the victor, former president Dilma Rousseff, in 2016. According to Mohallem, the removal of Rousseff created a dangerous precedent in which the constitutional instrument of impeachment could be used as a political tool. “With the potential contestation of the result of this year’s election, these strategies could be used again, bringing further instability to Brazil and harm to its democracy.”