On Thursday, Brazil’s Supreme Court handed down a decision of enormous consequence, finding that defendants cannot be incarcerated before every possible appeal has been heard and adjudicated. This procedure is explicitly spelled out in Brazil’s progressive constitution, ratified in 1988 after twenty-one years of military rule, and had been legal commonplace for about three decades.
But something changed in Brazil in recent years as a virulent anti-corruption drive ensnared the nation. The moralistic frenzy toppled a sitting president and implicated her party — along with the center-right opposition — in vast corruption schemes. It also empowered radical right-wing forces for whom democracy itself was suspect, culminating in the election last year of proto-fascist Jair Bolsonaro, who ran as an outsider despite serving in Congress for over a quarter-century.
A purported effort to root out corruption resulted in ad hoc legalistic rationalizations that ignored the text of the constitution almost completely. In the name of locking up powerful and well-connected elites that critics note (not unreasonably) game the system to indefinitely skirt accountability, the moralizing prosecutors and judges of Operation Car Wash, a sprawling investigation into corruption at state oil company Petrobras, successfully argued that the constitution was an obstacle to be worked around. No doubt influenced by the deification of Operation Car Wash in the domestic and international press, and tacit threats from the armed forces, Brazil’s highest court facilitated the crusade against corruption in 2016 by sanctioning arrests after only one appeal. This paved the way for the imprisonment of former Workers’ Party (PT) president Luiz Inácio Lula da Silva on what prosecutors even privately admitted were flimsy charges.
In April 2018, Lula turned himself in to begin serving a twelve-year sentence — but not before participating in a cathartic, instantly iconic rally at the union headquarters that launched his career in politics, carried aloft on the shoulders of supporters. “I’m not above the law,” he said then. “If I didn’t believe in the law, I wouldn’t have started a political party. I would have started a revolution.” He remained committed to pursuing a third term from his jail cell.
In September, however, Lula was formally barred from the presidential race, passing the baton to former São Paulo mayor Fernando Haddad. Despite polls indicating that Lula would have won the election, Haddad lost to Bolsonaro in the second round of voting by a margin of almost eleven million ballots.
Since Lula’s arrest, the battle cry of “Lula Livre” has galvanized not only the Brazilian left but progressive forces around the world. In June, responding to a bombshell exposé by the Intercept that revealed extensive secret collaboration between the prosecution in Lula’s case and the presiding judge, Bernie Sanders tweeted: “During his presidency, Lula da Silva oversaw huge reductions in poverty and remains Brazil’s most popular politician. I stand with political and social leaders across the globe who are calling on Brazil’s judiciary to release Lula and annul his conviction.” While not nearly as vociferous in her support, Elizabeth Warren also expressed her support for Lula when I asked her in person. Jeremy Corbyn, Jean-Luc Mélenchon, and Alberto Fernández, the recently elected president of Argentina, all expressed enthusiastic support for Lula during his incarceration. The weight of international solidarity with Lula was as forceful as it was widespread.
This is because Lula is the rare politician whose fate concerns a global audience. During his administration, after all, Brazil emerged as a legitimate power on the world stage, combining progressive policy innovations with unmitigated economic success. This is not to deny criticisms of the PT years but, as Michael Brooks and Ben Burgis observed last month, even behind bars Lula has “made clear in interview after interview, in the media blitz he’s done after the authorities finally let him talk to journalists after a year of enforced silence, that he has thought deeply and strategically about the plague that afflicts Brazil and the United States and is metastasizing across the globe.” It requires no stretch of the imagination, in other words, to imagine Lula as a bulwark against the reactionary right’s further advance in Brazil and Latin America more broadly. As a symbol of working-class empowerment, Lula alone can unite the vast majority of opposition forces in Brazil.
Some on the Left will say that Lula’s ability to speak convincingly to disparate social sectors with irreconcilable economic interests is precisely what makes him a compromised figure incapable of leading a modern new left. But as Brazilians continuously brace themselves against the ongoing onslaught of Bolsonaro’s government, such sectarianism must be set aside. Lula has already said he intends to travel abroad and all over Brazil relentlessly attacking Bolsonaro and his carnival of horrors. This is a promising development that might refocus a dispersed opposition whose lack of cohesion and overarching strategy betrays weakness.
Lula has also said he leaves prison further to the left than when he went in, suggesting he will step up his rhetoric against the entrenched conservative forces in the media, finance, and government that laid the groundwork for Bolsonaro’s ascension. Lula will be heading back to his apartment in the industrial exurbs of São Paulo, but his promise to embrace a radical political discourse represents a different homecoming of sorts. As a young union leader in the late 1970s, Lula made a name for himself by fearlessly standing up to the military regime whose economic policies devastated the working class.
While building up the party he helped create in the 1980s, Lula emerged as the most important leftist leader in recent Brazilian history. He narrowly lost the presidency in 1989. Running every four years from then on, Lula gradually moderated his discourse, seeking to assuage the market and international observers that he had no intention of rocking the boat. The strategy paid off: by the dawn of the new millennium, reeling from the neoliberalism of the 1990s, Brazilians elected Lula president. That conciliatory pretense has very likely evaporated.
The irony, however, is that while Lula emerges from prison as an avowedly more radical figure, sending opponents into fits of rage, consternation, and fear, his release represents a vindication of the rule of law in Brazil. As Nathália Rocha Peresi, a Brazilian legal expert, observed, the court’s decision strengthens democracy in Brazil and “protects each and every citizen from injustice.” Despite the anti-left bloodlust that still courses through the Brazilian body politic, the court “ignored political pressure, partisan opinions, and recognized the authority of the constitutional pact,” according to Peresi.
As it pertains to Lula, this is fitting considering that during his time in office, for better or for worse, he was more reluctant to push against his country’s legal and juridical norms than other leaders of the so-called Pink Tide like Evo Morales in Bolivia and Hugo Chávez in Venezuela. Yet already some observers fear the ramifications of the decision that led to Lula’s release. As journalist Alex Cuadros, who wrote a critical examination of Brazil’s recent economic boom, noted on Twitter, “Lula’s conviction should be overturned because it trampled due process. But this ruling is a backdoor way of freeing him without openly addressing that injustice. Meanwhile, white-collar crime is once again essentially decriminalized in Brazil.”
There is undoubtedly a balance to consider here. For every white-collar criminal that might evade legal scrutiny, there are thousands of poor and working-class Brazilians — 4,985, by one count — who will benefit from a reassertion of the rights guaranteed to them by the constitution. Cuadros is right, however, to note that the Supreme Court’s decision does not vacate Lula’s sentence, premised as it is on scant evidence and a bad-faith reading of the attendant circumstances. Rather, it merely allows the former president to file his appeals outside of a jail cell.
Cuadros continued: “For all that I condemn the excesses of [Operation] Car Wash, I’ve noticed a kind of anti–Car Wash tribalism that cheers any setback for Car Wash without considering the actually positive parts of the anti-corruption movement.” This, however, misses the point. Is it good that self-interested elitists can insulate themselves from legal accountability by paying expensive lawyers to file appeals indefinitely? Surely not. But the solution to that problem is not to sanction an end run around the clear text of the constitution — a document that, whatever the limits of its application, actually lays out a pluralistic, generous social vision that ought to be defended rather than dismissed as unworkable. Besides, the intensely punitive approach to cracking down on corruption has produced ceaseless spectacle and a superficial sense of political detoxification, but at the very real cost of economic, social, and political ruin. Operation Car Wash is a disaster sold as a deliverance.
Lula’s release is not in itself a solution to anything. The former president has enormous challenges before him, and it isn’t clear if he can even overcome them. But the winds seem to be shifting away from the institutional improvisation that Operation Car Wash consistently got away with in favor of the constitution and its protections. This doesn’t necessarily mean the anti-corruption fever that has gripped Brazil in recent years has broken. At least now, however, the Brazilian left has its most effective spokesman charging back into the fray. That’s a very good thing, period.