During its national convention this weekend, the Workers’ Party launched – for the sixth time – Luiz Inácio Lula da Silva as the party’s presidential candidate. In prison since April 7, the former president is still leading all polls, with his voting intentions ranging from 30 to 40 percent. This unlikely union of incarceration and popularity makes Lula the deciding factor heading into the campaign season. However, we won’t know for sure until September if his name will be on the ballot on October 7.
There are two possible paths for Lula to be granted the right to run for a third presidential term – and both depend on the Supreme Court. His first option is to go to the Supreme Court once the Electoral Justice system denies his candidacy registration. Lula’s workaround would involve trying to suspend his sentence (a criminal, not electoral, issue).
Lula’s legal options
In Brazil, individuals’ political rights are suspended after a criminal conviction. However, that happens only after all appeal routes have been exhausted. Lula’s case, despite the fact that he has been in jail since April 7, has not reached that point yet – as he still has appeals remaining at Brazil’s two highest courts, the Superior Justice Tribunal and the Supreme Court. A final guilty verdict would only come after – and if – he loses those appeals.
But there’s another obstacle to Lula’s bid for the presidency: the Clean Slate Law. Passed in 2010, the rule establishes that candidates with convictions by appeals courts become ineligible. The law doesn’t encompass every sort of crime, but the crimes Lula was convicted of, corruption and money laundering, are within the law’s scope. This could see the former president’s candidacy annulled.
But even if the electoral courts bar Lula, he could appeal the decision to the Supreme Court. One of the 11 Justices could grant him a temporary suspension of his ineligibility status. In normal times, such a decision would be seen as an affront to the rest of the court – but these are not normal times, and such a decision is not unthinkable in an already fragmented court. A member of the court recently said that the former leader’s arrest “undoubtedly violates his civil rights.”
Cases at the Supreme Court are randomly assigned to Justices, meaning the former president’s fate would depend on the court’s case distribution algorithm.
Lula can also try to get the Supreme Court to suspend his sentence. As his appeal routes have not yet been exhausted, his arrest is legally the “temporary execution” of the prison sentence, and overturning such a decision is not uncommon. That solution, however, has an important obstacle: the Supreme Court Chief Justice’s reluctance to put Lula’s case on the court’s agenda.
That could change after September 12, when a new Chief Justice takes over. That will be Justice Dias Toffoli, a former Lula advisor, Workers’ Party lawyer, and a Solicitor-General under his presidency. It seems unlikely that Mr. Toffoli would so brazenly confront his predecessor but, then again, it is not impossible. In a deeply fractured Supreme Court, a single vote could allow Lula to run for president again.
Campaigning from prison
While the matter remains unresolved, there is one overarching doubt: will Lula be able to campaign from prison? By campaign, read recording television and radio ads, taking part in debates, and so forth.
On one hand, the Electoral Justice system says all candidates have the right to campaign, even if their candidacy is being challenged. However, there are no specific rules for candidates who are serving time in prison, leaving the decision to the penal judge with the case – with a broad margin of discretion. The judge in charge of Lula’s case has denied his previous requests to record campaign videos.
But if there are doubts about whether Lula will be able to campaign, one thing is certain: the Workers’ Party are entitled to register his name as candidate come August 15 – the official deadline.
For the sake of argument, let’s assume that Lula will be successful in one of his possible strategies. If he gets elected, then all criminal cases against him are automatically suspended. Presidents enjoy a special immunity for cases predating their terms. But even if Lula does win the election, he could still be prevented from taking office – should one of his cases have all appeals analyzed before inauguration day on January 1.
That uncertain scenario is unlikely to be resolved before September, just days away from election day. The Justice system has been a protagonist in our everyday politics – especially with Operation Car Wash. And now the Supreme Court is set to decide the presidential election.