Trial for Brazilian Democracy

Despite right-wing wishes to the contrary, it is vital to note that confirmation of his conviction does not prevent Lula da Silva from running in the next presidential elections

By Chandan Kumar

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.


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.

For this process to occur, a series of elements need to align. First of all, a Judiciary that knows no boundaries. In 1988, when Brazil emerged from a 21-year-long military dictatorship, one of the social pacts that needed to be restored was the Constitution. According to Rogério Dultra dos Santos, a Brazilian law professor, “one of the actors who renewed itself with the [re]democratization and empowered itself with the Constitution of 1988 […] was the Judiciary.” Although the constitution was being re-written, it reproduced and maintained much of the legal apparatus that was in place during the dictatorship. Reproducing the logic of that model, says Santos, the, “Brazilian Judiciary [acts] as a countermajoritarian force, unelected, with the capacity to exercise the so-called ‘balance’ between [State] powers […]” under no regulation from the other branches of government, and even less, from the people. That superpower, Santos continues, creates a destabilizing force in the “relationship between law and politics” known as “judicial activism” or “judicialization of politics.” Thus, Santos points out, “the general political paradigm of exception oriented not only the renewal of institutional reactionaryism of the Brazilian Judiciary. It has [stimulated] the differentiation in the normative treatment between citizens and those considered undesirable or enemies of society, easing or even suppressing procedural guarantees.”

Indeed, many Brazilians have suffered these double standards, particularly low-income, black men living in Brazilian slums; a quick look at the astonishing statistics of the Brazilian prison system is a cruel illustration of this disparity. But in 2005, this logic of instrumentalization of the judicial system to achieve specific social interests started to be applied to the realm of politics. During that year, Brazilian authorities uncovered what was called at the time the “biggest corruption scandal in Brazil’s history”, known as the “mensalão” scheme. It was back then that many of the legal precedents that now allow Moro to act as if the Constitution and the basic principles of due process, such as in dubio pro reo (presumption of innocence), are mere suggestions.


The political project implemented by the Workers’ Party in its 13 years of government was perceived not only as a threat to the Brazilian political establishment (Lula’s election was the first time in over 50 years that an opposition party came to power), but also to the privileges of the economic ruling class. Unable to regain the country’s presidency through democratic elections, Brazil’s economic and political elites instead planned a political scheme to bring down a democratically elected president through illegal and unconstitutional means, imposing an economic and social agenda that had been rejected by the Brazilian people in four consecutive elections.

Although Brazil has a long history of democratic ruptures (which is also quite telling since those ruptures always occur during periods of social progress in the country), one of the most striking features of recent events, starting with the coup against Rousseff, is the instrumentalization of the legal framework and process to lend formal legitimacy to the illegitimate overthrow of power. Following this logic, the current de facto government would need to win the next presidential elections to continue to present itself as a “legitimate government” – even though it is to be expected that those elections will be nothing more than an undemocratic sham, comparable to what is happening now in Honduras. However, the coalition that staged the coup against Rousseff now faces a dilemma: not only were they unable to reach a consensus on a viable candidate to carry out their neoliberal agenda, but they were also unable to damage Lula’s popularity. Despite the constant flux of accusations against him, Lula is still the frontrunner. If the elections were held today, Lula would probably win in the first round (recent polls shows him with 38% of voter intention), and his return would represent the complete failure of last year’s coup and the interruption of the neoliberal program currently being implemented by Michel Temer. Thus, the need for the outrageous case against the popular favorite.

Despite right-wing wishes to the contrary, it is vital to note that although Moro, the prosecution, and even Justices from the Supreme Court are trying to politicize Lula’s case, the confirmation of his conviction does not prevent him from running in the next presidential elections. Lula has the right to present his candidacy, although it would probably be contested shortly after his registration and a higher court would probably prevent him from taking office, due to the Brazilian “Clean Record Law” (Lei da Ficha Limpa), that prevents candidates whose sentences are confirmed by an appeals court to hold office.


One of the most distinct features of any democracy is the fact that litigations are not subject to the scrutiny of a discretionary power. Rather, democratic societies build independent, secular institutions to guarantee, to the best of their abilities, that each and every person subjected to its rule is treated with as much equality as possible. However, the case against Lula is, to say the least, one of the most sordid examples of systematic violation of these principles. Indeed, Lula’s candidacy is at stake. His freedom is at stake. But more than that, what is at stake now is the future of Brazilian society and the vitality of democracy in Latin America’s largest country. In a coup d’état, one can know when it starts, but it is almost impossible to predict its end. The fear of those who promoted the coup (against Rousseff) to bear the political and legal costs of what they did. The only way out is to amplify the arbitrariness, to hunt down its enemies and to remain in power. As in 1968, the prospect of a free and truly democratic electoral process profoundly shocks the coup advocate.”

After going to such lengths to regain power, it is clear that Brazil’s economic and political elites will not let go easily — no matter what it takes.