Brazil’s rich weaponize law to stop Lula campaign

Lula is the innocent victim of politically motivated ‘lawfare’, says top human rights lawyer. Vanessa Baird reports

In a bid to stop Luiz Inácio Lula da Silva becoming Brazil’s next president, the country’s elites are abusing the law for their own political ends.

Leading UK human rights barrister Geoffrey Robertson QC says ‘extraordinarily aggressive measures’ to put Lula in jail and stop him running for president are being used ‘by the judiciary, by the media, by the great sinews of wealth and power in Brazil’.

All polls show the former president and de facto Workers Party (PT) candidate well ahead of others. In second place is Jair Bolsonaro, a ultra-rightwing former army captain. The elections are in October 2018, but Lula’s fate could be sealed this month.

His appeal against a conviction for ‘accepting a bribe’ – which he denies – has been fast-tracked to 24 January. Lula’s defence lawyers say that this is being rushed through in record time deliberately to stop him standing for president – which he would be able to do if the case was still under appeal.

Lula’s defence lawyers say that this is being rushed through in record time deliberately to stop him standing for president

‘Normally the appeals process takes in excess of 12 months and in Lula’s case it has taken only four months,’ say Valeska Teixeira Martins and Cristiano Zanin Martins, Lula’s Brazilian lawyers. ‘The judge responsible for reviewing the appeal seems to have been able to have read over 250,000 pages of submissions in six days in order to decide and schedule the trial.’

The way that Lula has been treated by the judiciary has prompted his lawyers, with the help of Robertson, to take the Brazilian government to the United Nations Human Rights Committee in Geneva. It is expected to consider a petition this month claiming that Lula is being denied a fair trial and that Brazil is in breach of international human rights law of which it is a signatory.

‘What we are seeing is lawfare,’ said Teixeira Martins. ‘A conjunction of war and law which is the misuse and abuse of the law for political persecution. Lula is being tried for his political agenda, for his political choices.’

In July 2017 Lula was sentenced by a lower court to almost 10 years imprisonment for corruption. The quality of the evidence presented has been widely criticized by legal experts.

‘What we are seeing is lawfare, a conjunction of war and law which is the misuse and abuse of the law for political persecution’

‘Lula was convicted by Judge Sergio Moro in a lower court with no evidence of wrongdoing – indeed overwhelming evidence of his innocence was produced and then ignored,’ say the defence lawyers. ‘President Lula has always co-operated with the [Operation] Car Wash investigation and believes that no one should be above the law but equally no-one should be beneath it either.’

In Brazil, those found ‘guilty’ in a lower court are not considered guilty until a final unappealable decision is reached. During the appeal hearing later this month Lula’s lawyers will be allowed only 15 minutes to verbally make their case. What’s more, the head of the appeal judges is on record saying that the original lower court decision was ‘impeccable’.

‘It seems now impossible for Lula to be given a fair trial when the head of the appeals judges has made his bias so clear and the process has been rushed to fit a political timetable,’ say Lula’s lawyers. ‘We can only conclude that parts of the judiciary are so opposed to President Lula, either as a candidate or his political views, they will do anything within their power to stop him.’

Many other irregularities surround the legal pursuit of the former president, who is credited for having lifted 40 million Brazilians out of poverty during his two terms in office.

For example, his defence lawyers have been subject to a campaign of intimidation. Judge Moro ordered the tapping of 28 phone lines belonging to the law firm and then released tapes of confidential conversations to the prosecution and the media. Even after Moro’s warrant had run out, the intercepts continued. Details of a private conversation between Lula and former president Dilma Rousseff, who was removed from office in a ‘soft coup’ in 2016, were leaked to the media by Moro.

In Robertson’s view: ‘This is wicked conduct by a judge. If any judge [elsewhere] dared, before the trial, to release telephone intercept that would cause his dismissal, but not in Brazil, where this judge rather terrifies the higher courts – and indeed the politicians.’

The legal system operating in Brazil today has been likened to the Catholic Inquisition, with Moro as the Grand Inquisitor. ‘The grand inquisitor organizes, supervises the searches and procedures and arrests, forms his or her own opinions and then judges,’ says Robertson. ‘It’s bizarre. It’s as though you were arrested by a police officer one day, who takes off a helmet and puts on a wig the next, and passes judgement.’

Legal experts both within and outside Brazil think that Moro and colleagues, engaged in the Operation Car Wash investigations into large-scale corruption that has engulfed the country’s business and political class, are acting beyond their powers. But Moro argues that the investigating judges are dealing with corruption on such a massive scale – billions of dollars are involved and almost half of all parliamentarians are being investigated – that ‘exceptional measures’ are needed.

Moro, an ardent self-publicist, is a something of a star for certain sections of the Brazilian population and the press. He has made leaking, especially to the right-wing O Globo network, and trial by media, a key part of his modus operandi. When Lula was arrested in a dawn raid earlier last year, Moro tipped off the media so that they could capture and circulate images of him looking like a prisoner. The arrest was not only unnecessary – Lula had made it clear he would answer any questions – it was also unlawful, his lawyers say.

Power of arrest and detention without bail has been used liberally by the Car Wash investigators. ‘In Brazil the judge can lock up people until they squeal; until they deliver what the prosecutor wants,’ is how Robertson puts it. Although more then 300 witnesses were interviewed, the case against Lula is based on the evidence of just one person, a convicted criminal, who has been offered a reduced sentence in exchange for testifying against the former president.

The charges against Lula centre on a seaside apartment in Rio de Janeiro owned by his wife, Marisa, who died last year. Lula is accused of having accepted a bribe from a contractor who did $100,000 worth of work on the flat.

Robertson offers Lula’s defence to these charges: ‘Marisa, years ago, had a part in a building society which entitled her to a flat overlooking a rather second-rate beach. The building society went bust and was taken over by one of the contractors suspected of ripping off the country through deals with Petrobras, and this contractor offered Marisa a more spacious apartment and did $100,000 dollars worth of changes to it.

‘Lula visited the apartment once, didn’t like it, and told his wife he never wanted to live there. This was all after he had left presidential office; he had no power. Yet he is accused now of accepting a bribe. It is nonsense. There is no evidence in the case of any kind of quid pro quo, no evidence that he did anything for the contractor. There was no evidence of any corrupt arrangement, no evidence of crime.’

The second case relates to five days spent with his family at the estate of some wealthy friends. Again, this was after he had left office.

Robertson told a meeting at the Latin America Conference in London in December: ‘I’m quite satisfied that Lula is innocent; prosecutors have combed through the evidence and they have not found anything. All they have is his presidential salary and what he earns from giving lectures. He lives very modestly. I went to his home. I made all the checks I usually make to see if someone might be corrupt.’

‘Constant leaks of baseless information keep on appearing in the press intended to demonize Lula or his group’

The campaign against Lula is intense. According to Teixeira Martins: ‘Constant leaks of baseless information keep on appearing in the press intended to demonize Lula or his group. None of this information can be proven but it is leaked and appears in the press over and over again until the person is found guilty by the population.’

In spite of this, Lula’s lead in the polls has grown in the past few months. He recently embarked on the third stage of his Caravan of Hope campaign around the country which is reconnecting the Workers Party with its supporters.

Corruption is a major problem in Brazil. The Workers Party, the ruling conservative Democratic Movement (PMDB) and almost all other sizeable parties are involved. Leading officials, including a Workers Party treasurer have been convicted of funnelling illegal payments into party coffers on a massive scale. Petrobras, Odebrecht, JBS and other major Brazilian corporations have admitted paying billions in bribes to political figures in Brazil and across Latin America. However, prosecutors have struggled to find any evidence of personal corruption by former presidents Lula or Rousseff.

Former president Lula
Former president Lula on his Caravan of Hope tour around Brazil, ahead of this year’s elections. Photo: Midia Ninja, Creative Commons

'Political corruption is a cancer that must be dealt with fairly,’ says Robertson. ‘If it is not dealt with fairly the remedies will not last.’ Access to a fair trial has to be a starting point.

Teixeira Martins concludes: ‘Lula is obviously a victim of lawfare. This is something we cannot tolerate. Our job is to demonstrate to the world that Lula is innocent and the political wars may only be fought in the ballots. The courts are not the place for fighting for political ends. We want to stop it – so that what is happening in Brazil does not happen elsewhere.’

October’s issue of New Internationalist explored Brazil after the soft coup. You can explore that magazine issue here.