How Lula’s trial will affect Brazil’s politics and penal system

</p> <p>Which brings us to the second legal issue that will be affected by Lula’s trial: arrests after a conviction in an appellate court.</p> <p>Back in October 2016, the Supreme Court decided that people who lose their first appeal would head to jail. Until that point, the presumption of innocence was synonymous with impunity in Brazil. No convicted criminal could go to jail before running out of appeals. It essentially meant that defendants with the monetary means could hire skilled attorneys to toy with the legal system and postpone a conviction for years – even decades.</p> <p>Here, we’re breaking down the ways in which the future of these two issues depends on tomorrow’s trial.</p> <h3>Clean Record Law</h3> <p>The Clean Record Law was <a href="https://www.as-coa.org/articles/explainer-brazils-clean-record-law">signed</a> in 2010 by then-President Lula (go figure). It is not, however, automatically enforced. For someone to be stripped of eligibility, one must first register as a candidate. This year, the deadline to do so is August 15. Only after that date will the wheels of justice begin to operate.</p> <p>After the candidacy is suspended, a final ruling by the Superior Electoral Court will ultimately decide whether or not someone can run for office. Two things are currently weighing against Lula: his criminal convictions, and the Electoral Court’s panel of judges – many of whom were named by President Michel Temer, who wants Lula off the ballot.</p> <p>Should the Superior Electoral Court rule against Lula’s candidacy, the future of his Workers’ Party will depend on the timing of the decision. If it happens prior to October 7 – that is, 20 days before the election – then the party will be able to name another candidate. After that, however, the entire party would be out.</p> <p>Lula’s case will be paradigmatic, for he is Brazil’s most popular leader. Barring him from the election would reinforce the idea that the Clean Record Law is here to stay. A decision favorable to the politician, however, would weaken the law.</p> <h3>Impunity loophole</h3> <p>In 2016, the Supreme Court decided to allow arrests after the first appeal. The 6-5 vote revealed the deep division within the Supreme Court. As part of the minority opinion, Justice Ricardo Lewandowski argued that the presumption of innocence must be respected until all appeals are exhausted. On the other side, Justice Gilmar Mendes stated that the constitutional presumption of innocence fades away after a conviction. If an appeal confirms the decision against the defendant, then he or she can no longer be considered innocent.</p> <p>Oddly enough, Mendes has given signs that his understanding of the law has changed.</p> <p>In Lula’s case, the swing justice will be Rosa Weber. In the 2016 trial, she voted against arrests before all appeals are exhausted. However, since that trial, she has followed the majority’s decision. Lula’s fate hangs on which direction Weber will go: jurisprudence or personal conviction.</p> <p>Whatever the verdict, it should have a ripple effect on similar cases. This is because, at the end of last year, the justices made a paradigm-changing decision. In Brazil, verdicts traditionally affect only the concerned parties. Other cases are not necessarily <a href="https://www.jota.info/opiniao-e-analise/artigos/lula-hc-repercussao-122339-02042018">bound by jurisprudence</a>. But when judging for a ban on asbestos in late 2017, the justices ruled that its decisions on a matter should automatically affect all similar cases.</p> <h3>2018 election</h3> <p>Legal questions aside, the decision will have a major effect on October’s general election. Lula is currently leading all polls, and is the front-runner to win a third presidential term – and that is despite his recent encounters with the law (and there have been many).</p> <p>“For much of Brazil’s population, the Lula era is still associated with a time of prosperity,” explains political scientist Claudio Couto, a columnist at <strong>The Brazilian Report</strong>.</p> <p>Meanwhile, nearly every one of Lula’s major adversaries has asserted a desire to face off against the former president in the election, believing that defeating Lula would be the best way to end his political career. “We will beat the Workers’ Party, no matter who their candidate is,” São Paulo’s Governor Geraldo Alckmin declared in late January.</p> <p>However, if Lula is able to run, he’ll be a <a href="https://brazilian.report/2018/03/07/lula-jail-presidential-polls/">tough candidate</a> to beat.