RIO DE JANEIRO – With former Brazilian President Luiz Inacio Lula da Silva behind bars, the people of Latin America’s largest nation are pondering how October’s presidential election will be affected by the jailing of the poll front-runner.
Questions and confusion about his future come as Brazil remains deeply divided over his conviction, whether he should be allowed to run and whether the sprawling “Car Wash” corruption investigation that has ensnared many in the country’s political and business elite has gone too far.
Three weeks have passed since da Silva began his 12-year sentence for a corruption conviction, yet leaders of his leftist Workers’ Party still insist the once widely popular leader will be on the ballot as their candidate.
While there is a narrow path by which that could happen, legal and political experts say it is unlikely. To get on the ballot, da Silva would need an avalanche of favorable legal decisions in a justice system that is notoriously slow.
Yet there seems a large possibility that da Silva, who is called Lula by many Brazilians, could get out of prison within the next several months. That is because Supreme Federal Tribunal justices who recently denied his request to remain free while appealing his conviction are rethinking their interpretation of when a person convicted of a crime should be forced to start serving a sentence.
“I could see a situation where Lula could be at home during the presidential elections, but not on the ballot,” said Mauricio Santoro, a professor of international relations at the State University of Rio de Janeiro.
Either way, da Silva would likely have a big influence in the vote.
A Datafolha institute poll released April 15 said at least 30 percent of voters would back da Silva, double the support for the closest contender, Congressman Jair Bolsonaro, a former army captain who speaks nostalgically about the country’s 1964-1985 dictatorship. If da Silva is barred from running, two-thirds of his supporters said they would vote for whomever he endorsed. So far, he has not backed anyone specifically.
Da Silva also faces corruption charges in a half-dozen other cases that have yet to be tried, but his focus is on getting free while he appeals his one conviction.
In 2016, Brazil’s top court narrowly ruled that anyone convicted of a crime could be forced to start doing prison time after losing their initial appeal. Da Silva lost his first round on his appeal, and earlier this month the Supreme Federal Tribunal’s justices essentially upheld that decision when they denied, on a 6-5 vote, his petition to stay out of prison during further appeals.
Now there are indications the court could revisit the larger question of how early a prison sentence should start. Justice Marco Aurelio Mello, who voted in favor of da Silva’s petition, is reportedly planning to present the issue to the court. One justice who voted against da Silva, Rosa Weber, said during the April 4 hearing that if presented with the larger question she would vote to change the rule. Just her vote would be enough to change the court’s finding on da Silva.
Many Brazilians would clearly interpret that as a major flip-flop that would let da Silva and other high-profile politicians and business executives convicted as part of the “Car Wash” probe to get out of prison.
“The court would lose credibility,” said Sergio Praca, a political scientist at the Fundacao Getulio Vargas university in Rio de Janeiro. “All the back and forth turns into a big mess.”
The Datafolha poll, which interviewed 4,194 people over three days and had a margin of error of 2 percentage points, underscored Brazil’s deep division on the issue. Fifty-four percent of those surveyed said they considered da Silva’s arrest to be fair while 40 percent disagreed. Six percent did not respond.
In July, federal judge Sergio Moro convicted da Silva of corruption and money laundering charges after finding that as president he steered state contracts to a construction company in exchange for the promise of a beachfront apartment.
The conviction was upheld in January, and the three reviewing magistrates increased his sentence to 12 years and one month from 9½ years.
Da Silva can appeal the conviction to two more courts, the Superior Tribunal of Justice and the Supreme Federal Tribunal. However, a decision would likely take years, putting out of reach any chance of getting on the ballot.
According to the Clean Slate law, someone whose initial appeal has been rejected is ineligible to run for office. While the Superior Electoral Tribunal makes final decisions about candidacies, an exception for da Silva is considered unlikely and could be appealed by numerous adversaries who don’t want the former president on the ballot.
Allowing him to run “would end in a judicial war, which would weaken the Clean Slate law,” said Jovacy Peter Filho, a criminal lawyer not connected to da Silva’s case.
Da Silva continues to maintain his innocence. Since being jailed April 7, he has been writing letters telling supporters that he hasn’t given up.
“I continue to believe in the justice system, so I’m at peace,” he wrote in one, adding he was also “indignant, like any innocent person in the face of injustice.”
Peter Prengaman on Twitter: twitter.com/peterprengaman