{"id":105768,"date":"2018-02-05T12:00:31","date_gmt":"2018-02-05T12:00:31","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=105768"},"modified":"2018-01-30T16:50:14","modified_gmt":"2018-01-30T16:50:14","slug":"presidential-corruption-verdict-shows-just-how-flawed-brazils-justice-system-is","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2018\/02\/presidential-corruption-verdict-shows-just-how-flawed-brazils-justice-system-is\/","title":{"rendered":"Presidential Corruption Verdict Shows Just How Flawed Brazil\u2019s Justice System Is"},"content":{"rendered":"
\"\"<\/a>

Lula speaks to a crowd of supporters on the eve of his trial.
Photo: R Stuckert\/IL. MercoPress<\/p><\/div>\n

29 Jan 2018 – <\/em>On Jan. 24, a Brazilian appeals court upheld a criminal conviction against former President Luiz In\u00e1cio Lula da Silva<\/a>, rocking Brazil\u2019s already turbulent<\/a> political scene. The verdict, which confirms a 2017 ruling<\/a> against the wildly popular Workers\u2019 Party leader on corruption charges, could carry a prison sentence of up to 10 years.<\/p>\n

It may also make Lula ineligible to run<\/a> in Brazil\u2019s October presidential election. The 72-year-old is currently his party\u2019s nominee and a favorite to win the race<\/a>.<\/p>\n

Lula\u2019s lawyer has deemed<\/a> the appeals court verdict \u201ca legal farce masquerading as justice.\u201d Many Lula supporters agree, saying the ruling amounts to a preemptive presidential coup by the right wing.<\/p>\n

His opponents, on the other hand, call the ruling a major victory against political corruption.<\/p>\n

It\u2019s a complicated case, but in my analysis, neither side has it quite right. As a Brazilian constitutional law professor and Supreme Court researcher<\/a>, I see Lula\u2019s trials as a marquee example of Brazil\u2019s flawed and inconsistent justice system. It confirms that Brazilian judges are on a moral quest to \u201ccleanse\u201d politics \u2013 and they\u2019re willing to bend the law to do it.<\/p>\n

\"\"<\/a>

SA Breaking News<\/p><\/div>\n

Brazil behind Lula<\/strong><\/p>\n

The Jan. 24 verdict has upended Brazilian politics. That\u2019s because Lula is not simply a former president convicted of corruption.<\/p>\n

Lula left office in 2010 after two four-year terms with an 80-percent approval rating<\/a>. In 2009, Barack Obama called him \u201cthe most popular politician on Earth<\/a>.<\/p>\n

Eight years later, polls show Lula leading by 18 points over his closest rival<\/a> in the 2018 presidential race, despite multiple recent indictments on graft charges<\/a>.<\/p>\n

The loyalty derives largely from the Lula administration\u2019s success in markedly decreasing hunger and poverty in Brazil<\/a>. As president Lula launched the Bolsa Fam\u00edlia program, which gave cash to millions of poor families. He also created tuition incentives helped working-class students go to college and improved access to electricity.<\/p>\n

Recently, though, reputation has been tarnished somewhat. Since 2012, the Supreme Court has convicted four Lula allies<\/a> for orchestrating a sustained bribery scheme called \u201dMensal\u00e3o<\/a>.\u201c The cabinet members and ministers paid members of congress 30,000 reais \u2013 roughly US$10,000 \u2013 each month in exchange for legislative support on key issues.<\/p>\n

Lula was never charged in the Mensal\u00e3o, and he claims he knew nothing<\/a> about it.<\/p>\n

\"\"<\/a>

Ag\u00eancia Brasil Fotografias\/flickr, CC BY<\/p><\/div>\n

The justice system against Lula?<\/strong><\/p>\n

He was not able to escape Operation Car Wash<\/a>, a massive corruption investigation lead by the popular judge S\u00e9rgio Moro<\/a>. Indeed, it was Moro who in 2017 convicted Lula of graft for receiving a free penthouse apartment from a construction company, OAS, which had benefited from illegal government contracts during Lula\u2019s administration<\/a>.<\/p>\n

The Jan. 24 appeals court ruling upheld that conviction unanimously. A three-judge panel found the former president guilty on several grounds<\/a>, and bolstered some charges largely unsubstantiated in the original ruling.<\/p>\n

Mainly, they found that early in his administration Lula had used his political power to influence the board and leadership of Petrobras, Brazil\u2019s state oil company. In 2003 and 2004, Petrobras went on to make numerous illegal infrastructure development<\/a> contracts, with OAS and other firms.<\/p>\n

The appellate judges determined that there was no need to prove how, specifically, Lula helped OAS, since it\u2019s reasonable to believe that a sitting president would have known about and endorsed his subordinates\u2019 illegal contracts scheme.<\/p>\n

The judges also agreed that Lula and his wife, Marisa Let\u00edcia Lula da Silva, had shown suspicious interest in an apartment owned by OAS. Though they never purchased it or even lived there, the couple suggested specific renovations to the space. Those projects were completed.<\/p>\n

Essentially, Brazilian courts have now twice found Lula guilty of corrupt dealings with OAS beyond any reasonable doubt. In legal terms, though, the shaky evidence shows only that something fishy was going on with that OAS apartment. For many Brazilians, “fishy\u201d seems insufficient to disqualify a presidential front-runner.<\/p>\n

The decision looks more dubious considering that Brazil\u2019s current president, Michel Temer, dodged criminal prosecution for a September 2017 indictment<\/a> after his chief of staff was caught leaving a business lunch with a briefcase full of hush money<\/a> allegedly meant for Temer.<\/p>\n

\"\"<\/a>

Judge S\u00e9rgio Moro has become famous for his crusade against political corruption. But some say his judicial activism has gone too far.
Paulo Whitaker\/Reuters<\/p><\/div>\n

Brazil\u2019s flawed judiciary<\/strong><\/p>\n

That still doesn\u2019t prove that Lula\u2019s prosecution is political. Frankly, the Brazilian judiciary is prone to inconsistencies and to ignoring the due process of law.<\/p>\n

Brazil has the world\u2019s third highest prison population<\/a>, with some 660,000 incarcerated people. Around 35 percent of them have not yet been tried<\/a>, and the vast majority of prisoners are poor, young black men facing lengthy sentences for charges that white defendants almost never see<\/a>.<\/p>\n

In other words, there is a punitive streak among Brazilian prosecutors and judges. Historically, though, the judiciary has gone easy<\/a> on rich defendants with the best defense attorneys money could buy.<\/p>\n

In a way, what Lula\u2019s verdict shows is that the judiciary\u2019s instinct to punish \u2013 normally reserved for pickpocketers and low-level drug dealers \u2013 has now been unleashed on some of Brazil\u2019s most powerful people. The contrast with Temer\u2019s lack of prosecution is another example of unequal treatment under the law.<\/p>\n

Moralizing judges<\/strong><\/p>\n

When the Mensal\u00e3o scandal exposed Brazil\u2019s pervasive corruption, many citizens came to see the judiciary as the last democratic bastion in a mostly rotten republic. In doing so, they ignored its many flaws.<\/p>\n

Worse still, it seems that judges like Moro and others, too, believe the idea that the criminal justice system alone can clean up politics.<\/p>\n

And since the wheels of justice turn slowly in Brazil<\/a> \u2013 where cases can take up to 12 years to conclude \u2013 judges as high as the Supreme Court have found ad hoc, unprecedented ways to rebuke politicians they believe to be corrupt.<\/p>\n

They have barred ministers<\/a> from taking office<\/a>, suspended congressmen<\/a>, imprisoned senators<\/a> and even put legislators under house arrest<\/a> \u2013 often without clear constitutional grounds or legal precedent for doing so. At bottom, the work of a judge is to apply established law or, when creating a new precedent, to do so with clear new rules.<\/p>\n

These judicial interventions have unduly influenced Brazilian politics. So far, the Workers\u2019 Party has seen more prosecution than other major parties, though that seems to be changing<\/a>.<\/p>\n

All of this has increased the popular perception that Brazil\u2019s court system is just as politicized as politics itself. As a result, confidence in the judiciary has been dropping steadily for years<\/a>.<\/p>\n

Lula\u2019s lost appeal is the perfect distillation of what ails the Brazilian legal system. It is one part judicial activism in the name of anti-corruption, one part judicial disregard for legal precedents and due process. With the good intention of \u201cfixing\u201d politics, Brazil\u2019s judges may be breaking the rule of law.<\/p>\n

What they are not doing, I would argue, is staging a partisan judicial coup against the Workers\u2019 Party.<\/p>\n

Ultimately, Lula\u2019s case will be again appealed and eventually decided by a higher court. That process could take many months. In the meantime, an electoral court must determine whether to let Lula run for president in October.<\/p>\n

To do so, Brazilian judges will again find themselves deciding a profoundly political question: Would Lula\u2019s candidacy strengthen or subvert Brazilian democracy<\/a>?<\/p>\n

______________________________________________<\/p>\n

\"\"<\/a>Rubens Glezer <\/a><\/em>– Law Professor, Funda\u00e7\u00e3o Get\u00falio Vargas <\/em><\/p>\n

 <\/p>\n

 <\/p>\n

Republish <\/em>The Conversation articles for free, online or in print, under Creative Commons license.<\/em><\/p>\n

Go to Original \u2013 theconversation.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

29 Jan 2018 – An appeals court ruling against popular Brazilian ex-president Lula has hotly divided Brazil. A legal scholar argues that this is a case of activist judges taking their anti-graft crusade too far.<\/p>\n","protected":false},"author":4,"featured_media":105770,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[180],"tags":[],"class_list":["post-105768","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-brics"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/105768","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=105768"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/105768\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media\/105770"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=105768"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=105768"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=105768"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}