In jail since April 7, serving a 12-year prison sentence for corruption and money laundering, former president Luiz Inácio Lula da Silva remains the centerpiece of this year’s presidential election. As his understudy Fernando Haddad continues his steep rise in the polls, already closing the gap to far-right frontrunner Jair Bolsonaro, the voting begins to look more and more like a referendum on Lula’s legacy. And a question surrounding a possible presidential pardon from Mr. Haddad to Lula, if he gets elected, has come to the center of political discussions.
The Workers’ Party itself is to blame for that. On September 15, Minas Gerais Governor Fernando Pimentel declared that he was “sure Haddad would pardon Lula as soon as he takes office.” On the following day, Mr. Bolsonaro published a video from a hospital bed asking for support from all anti-Lula voters, trying to decide the election in the first round – to avoid having Lula freed in the case the Workers’ Party wins the race.
Over the week, Mr. Haddad declared he won’t pardon Lula – and said the former president wants to overturn his conviction without any shortcuts.
The controversy raises a question: would a presidential pardon even be possible in Lula’s case?
The presidential pardon in Brazil
The 1988 Constitution created the mechanism of the presidential pardon, which is awarded through a decree from the sitting president – traditionally around Christmas time. While the pardon is at the president’s discretion, he must exclude those who committed violent crimes.
Until 2016, presidents used to follow the same criteria: prisoners must have been convicted to 12 years or less, not be repeat offenders, and have served at least one-quarter of their sentence. While the presidential pardon is usually a more general decree which benefits several detainees, the president is also allowed to pardon to a specific prisoner.
In December 2017, President Michel Temer signed a presidential pardon decree which changed the rules of the game – extending the benefit to prisoners who were previously ineligible. According to Mr. Temer’s order, the minimum time spent in jail was set at one-fifth of the sentence, instead of one-quarter.
The move was widely criticized, as it benefited many of Mr. Temer’s allies who were put behind bars by Operation Car Wash. Critics said it was a move that institutionalized impunity and that gave a pass to white-collar criminals. The pardon was challenged by Prosecutor General Raquel Dodge, who took the matter to the Supreme Court.
The Supreme Court’s decision on presidential pardons
In March 2018, Supreme Court Justice Luís Roberto Barroso altered Mr. Temer’s decree, choosing to specify in which situations prisoners are allowed pardons. Justice Barroso’s decision forbade pardons for people convicted of the following crimes:
- Several types of corruption
- Influence peddling
- Crimes against the financial system
- Violations of the law on public bidding processes
- Money laundering
- Criminal association
Moreover, Justice Barroso raised the bar regarding time served in jail to one-third of the sentence and said that only convicted felons with convictions up to 8 years in prison would apply.
That decision, however, is temporary and must be analyzed by the full panel of the Supreme Court, with the remaining ten Justices weighting in.
Justice Barroso’s decision sparked much controversy about whether or not Lula would be eligible for a pardon. One of the judges who took part in elaborating Mr. Temer’s 2017 decree recently declared that the jailed former president would not be eligible due to Justice Barroso’s ruling – as Lula was convicted of corruption and money laundering and his sentence is 12 years, over Justice Barroso’s limit.
Other law experts, however, disagree. Speaking to UOL, law professor Alexis Couto de Brito, of Mackenzie University, said that presidents could pardon whoever they want, whenever they want: “It’s his prerogative, and he doesn’t have to justify his decision.”