A five-member bench of Brazil’sSup reme Court, presided over by Justice Gilmar Mendes, ruled on March 23 that former President Luiz Inacio Lula da Silva was not given a fair hearing in the corruption probe that was launched against him six years ago. The court also ruled that the former federal judge Sergio Moro, who had presided over Lula’s corruption trial, was “biased”. The probe ended in a harsh prison sentence for the former President four years ago. Lula spent more than a year and half in jail and was barred from running for the presidency in the last elections because of Brazil’s “Clean Slate Law”. The law, which ironically was passed during Lula’s presidency, prohibits impeached politicians or those convicted of crime from running for political office. The Supreme Court ordered Lula’s release in 2019, stating that an individual could only be imprisoned after all the legal appeals pending in the courts were exhausted.
The latest ruling comes in the wake of a judgment delivered in early March by a single Supreme Court judge, Edson Fachin, annulling Lula’s conviction and clearing the way for him to contest in the 2022 elections. Judge Fachin ruled that Lula had been tried in a court that did not have the legal jurisdiction to do so and that his case should have gone before a federal court in the capital, Brasilia. The larger Supreme Court bench validated Judge Fachin’s judgment two weeks later in a three to two ruling. “In this case, what is discussed is something that for me is key that everyone receives a fair trial, due legal process and the impartiality of the judge,” said Judge Carmen Lucia, who cast the tie-breaking vote.
A flawed probe & a ‘reward’
The judgment severely criticised the role of Moro, who had led the controversial “Operation Car Wash” investigations that upended Brazilian politics. The wide net Judge Moro had cast in his probe, which started in 2014, ensnared hundreds of politicians and businessmen. They too could now walk out of prison. President Jair Bolsonaro had called for the Car Wash prosecutions to end as many of his financial backers and supporters were also jailed. He officially disbanded Operation Car Wash last October, declaring that the country had become “corruption free” after he took office.
The Supreme Court ruled that Operation Car Wash was not an “impartial investigation”. The ruling has made all the evidence gathered by Moro and his team redundant and it cannot be used against Lula in another court of law again.
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Lula’s legal team said that the Supreme Court’s judgment had “strengthened the justice system and the importance of due process” and proved that “Moro never acted as a judge but as a political and personal adversary of the former President Lula”. Lula and most Brazilians believe that the entire Car Wash investigations were started to prevent him from running for President five years ago. The ruling clearly vindicated what the majority of Brazilians believed: that Judge Moro had a political axe to grind.
When Lula was arrested, the opinion polls were showing him as the front runner in the 2018 elections by a huge margin. Bolsonaro was polling below 20 per cent at the time. Michael Mohallem, coordinator of the Justice Centre of the Getulio Vargas Foundation, said the ruling “solidifies” Lula’s candidacy for the 2022 elections. “Lula will be able to say that he was persecuted by a judge who wanted to convict him. For the political campaign, that will be very valuable,” he said. Many Brazilians believe that Lula’s imprisonment paved the way for the right wing in Brazil to consolidate power.
After Bolsonaro became President, Moro accepted the post of Justice Minister in his Cabinet, further strengthening the suspicions of Brazilians about the former judge’s motivations. The majority in the Supreme Court bench that pronounced the latest verdict were of the view that there was a “quid pro quo” involved in the appointment. Many in Brazil’s legal fraternity were of the view that Moro’s investigation overstepped legal boundaries and did not honour Lula’s right to a fair and free trial.
Lula has described the trial as “the biggest judicial lie told in the 500 years of Brazilian history”. Left-wing leaders in the region were quick to welcome Lula’s vindication. Argentine President Alberto Fernandez said that “justice had been done” and that the only reason why Lula was hounded was “solely with the aim of persecuting him and eliminating him from the political contest”.
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The web journal The Intercept had revealed that Moro was personally instructing and manipulating prosecutors involved in the case against Lula. The messages leaked to The Intercept showed that Moro “offered strategic advice to prosecutors and passed on tips for new avenues of investigation”, in clear violation of the rules that govern the conduct of judges in the country. Moro had illegally tapped the phones of the then President, Dilma Rousseff, and Lula and handed over transcripts of their confidential conversations to the media. There are credible reports that the United States Department of Justice aided and abetted Moro’s efforts. WikiLeaks released secret documents in 2015 revealing that the Barack Obama administration had ordered the tapping of President Dilma Rousseff’s phones.
Brazil’s “deep state” had also turned against Lula and his party, the Workers’ Party. Gen. Villas Boas, the former chief of Brazil’s armed forces, has confessed to a coup plot to overthrow the Dilma Rousseff-led government in 2016. She was Lula’s hand-picked successor. Ultimately, the army did not have to send in the tanks as a constitutional coup backed by its top brass did the trick and removed her from office. Boas admitted recently that the army high command had exerted pressure on the judiciary to convict Lula on corruption charges to prevent him from running in the 2018 elections. Bolsonaro served in the army for a short period and has openly expressed nostalgia for the 21 years of brutal right-wing army rule the country experienced from 1964. Bolsonaro’s Cabinet and administration is packed with serving and retired army officials. Vice President Hamilton Mourao is a retired army general.
Gilmar Mendes wants Moro to face trial for not acting impartially in the case against Lula. “The court in Curitiba is globally known as an extrajudicial court,” Mendes said, referring to the southern Brazilian city where Lula was initially tried and sentenced. Moro resigned as Justice Minister in April last year after a falling-out with the President. He had accused Bolsonaro of seeking to improperly influence the federal police force. In his resignation speech, Moro said that Bolsonaro wanted a new chief of police and the person appointed should be someone with whom he could communicate directly and get access to sensitive investigative information and intelligence dossiers.
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Two of Bolsonaro’s sons are currently under criminal investigation for money laundering and other charges. Throughout his political career, Bolsonaro has associated with the most corrupt elements in Brazilian politics. Moro was no doubt aware of the fact before joining his Cabinet. A leading Brazilian newspaper, Folha De S.Paulo , noted that during his stint as Justice Minister, Moro “was the most important centre of support for authoritarianism in the government”. Moro is now a consultant for an international legal firm whose clients include the construction company Odebrecht that figured prominently in the Car Wash investigations. In search of contracts, the company had bribed the high and the mighty all over Latin America.
Lula, meanwhile, has been busy travelling around the country to feel the pulse of the people. He has not yet made a final decision on whether to run in 2022 and has said that he will announce the decision at an opportune time. Recent opinion polls have shown that there is more than 50 per cent approval for Lula’s candidacy. At the same time, the Workers’ Party leader talked about the possibility of forming a broad-based coalition to oust the right-wing government. Ousting Bolsonaro is the priority for the opposition, which is yet to coalesce in favour of a single candidate to oppose him in the next elections.
Lula has gone full throttle against the incumbent President, even labelling him an “imbecile” for his handling of the pandemic. Thousands of people have taken to the streets in recent months calling for the impeachment of the President. There are 73 pending impeachment requests from legislators in the Brazilian parliament. There have been calls in the country for Bolsonaro to be tried at the International Criminal Court for crimes against humanity for his mishandling of the pandemic.
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Brazil is one of the worst affected countries, with more than 11 million Brazilians being infected and more than 300,000 deaths, but Bolsonaro still does not take COVID-19 seriously. He called the pandemic nothing but a “little flu” and discouraged his followers from taking precautions, including wearing masks. At the same time, he encouraged unproven treatments and sacked three of his Health Ministers in the span of 12 months. “When the pandemic came along, there was a choice between life and death. Brazil chose death,” said Luiz Henrique Mandetta, a former Health Minister. Brazil has the best health infrastructure in the region, and yet the country witnessed thousands of deaths due to a paucity of oxygen cylinders in hospitals.
Bolsonaro started mimicking the antics of U.S. President Donald Trump. After the U.S. President started targeting China, Bolsonaro followed suit and started criticising China, calling the country untrustworthy. He tried his best to break the contract the State government of Sao Paulo had signed with Sinovac Biotech Ltd, a Chinese company that makes a COVID-19 vaccine. Sau Paulo’s Governor, Joao Doria, termed Bolsonaro’s polices “genocidal” and bypassed the federal government to give Sinovac permission to start distributing and producing its vaccine in Brazil. Bolsonaro’s handling of the pandemic has had a severe impact on the economy and polarised the country. He still retains the support of around 30 per cent of the electorate, according to a recent opinion poll. More than 40 per cent of Brazilians said that they would not vote for Lula if he ran again.
The Centre Right in Brazil would prefer a second term for Bolsonaro, despite being opposed to his policies, rather than a return of the Left to power in the country. The right-wing and centrist parties voted for Bolsonaro in the second round of the last presidential elections to defeat Fernando Haddad, the Workers’ Party candidate. After the March Supreme Court verdict in favour of Lula, the Brazilian stock market fell by 4 per cent and the country’s currency hit a record low against the dollar. Lula presided over the biggest economic boom the country had witnessed during his first two terms in office and was seen by many as business friendly despite his socialist ideology. During Lula’s presidency, Brazil accumulated a debt of $70 billion because of the government’s laxity in controlling international capital flows. When global commodity prices collapsed, the left-wing government in Brazil paid a heavy price.