“After all, why just him? That’s a question much of the people are asking. Not only leftists, but the regular citizen who while seeing Lula in jail, sees the presidential palace and realizes a gang rules the country.”
Temer remains in government, Aécio Neves is still a senator and the process against Romero Jucá was already archived by STF, Brazil’s Supreme Court. Alckmin and his “tremsalão”, the notorious corruption scheme involving the construction of new subway stations, remains unscathed. Although the Lava Jato (Car Wash) operation managed to dismantle the Brazilian Democratic Movement Party (PMDB) mafia in Rio de Janeiro, in national standards its results are deeply modest. The most influent and morbid political figures are still standing. And there are plenty of reasons for that. Thus, this a decisive fact to make me stand for and defend Lula’s right to freedom.
To answer the question of why Lula was arrested and many others, with substantial proofs of corruption, remain free, it is necessary to take a quick look at the criminal process.
Every criminal process retains a political compound. It is clear that political convictions and personal experiences from judges and prosecutors create biases on their decisions and also on the time they take to make them.
Take the example of Eduardo Azevedo, a former senator from the Brazilian Social Democracy Party (PSDB). He answered his process in freedom, but in August 2017 was condemned to 20 years in prison, on second instance, for the crimes of pecuniary and money laundry, in the case known as “mensalão tucano”. The decision on the first instance was only rendered in 2015, exactly eight years after he was denounced by the Public Prosecution Service. The risk of a statute of limitation is imminent. In the name of guaranteeing that eventual criminal sentences will be accomplished, the process must be concluded by September 2018, when he will turn 70 years old. After that, the sentence will be limited. Are not the enormous delay of the process and his freedom political? Does anyone believe it is just a coincidence?
Justice is political and selective, as it has always been. As a lawyer, I have always faced this reality very closely. When defending black and poor defendants it was always clear. Rich people hold more chances against justice. They have huge law corporates working for them, searching for every small legal gap to delay the process and avoid prison, betting on the statute of limitation of the processes. Among other things, we must think on changes that prevent procrastination – which happens just the way rich defendants and their lawyers want.
Aside from the big law corporates, rich people can also count on empathy from judges. Empathy, which is the ability of putting yourself on another person’s shoes, improves criminal selectivity. The absence of empathy is also a reason for that. Usually, a black young man, from the “favelas”, arrested for selling pot, goes straight to prison and his trial, in first instance, can take months or even years. The new Drug Laws, sanctioned by Lula, made this selectivity even worse, giving the judge the right to decide, based on subjective criteria, if the defendant is a drug dealer or only a drug user.
For that reason, beyond arguing on the second instance issue, we must take this opportunity, when the whole country is arguing about the criminal process, to speak on and debate the indiscriminate uses of protective custody. As one of the STF ministers said on Lula’s trial, pre-trial detention must be the exception and freedom must be the main rule. This principle distortion is made clear when we realize 40 percent of the prison mass is made from prisoners that didn’t have any trial. This is what we call mass incarceration of the black and poor youth.
On the other side of the table sits the privileged forum guaranteed to political figures, with the intention of protecting them from first instance judges that can, in the name of political preferences or even out of a serious attitude, treat their processes with the same accuracy they treat all the other defendants from the low castes.
The caste that integrates the Brazilian judicial system is, apart from a few exceptions, native of the top of the social pyramid. Lula, although he decided to access the bourgeois club, is not their true son. He made a bet, believing that his alliance with the higher ground could assure him the same criminal treatment that the children of the high elite receive. Even worse: he made class collaboration his political strategy. He took a bet that the demobilization of the people, cooptation of social movements and maintenance of capitalist accumulation could grant his place.
The strategy worked for a long time and he made through without any substantial scratch even after the “mensalão” crisis, based on a vote-buying scandal. Lula is not the first member of brazilian Workers Party (PT) to be condemned. Way before him other historical leaderships from the PT faced trial and were arrested, such as José Dirceu and Genoíno. Lula was reelected after that, but the party didn’t act to help them, rather they prefered to save Lula and the party on the “mensalão”. José Dirceu was sacrificed and the bourgeoisie accepted that the PT remained in government. On the same side, the Workers Party remained doing everything as they did, ruling by institutionality.
All of that happened before June 2013 and before the economical crisis arrived in Brazil. The new scenery imposed by these two phenomena showed the bourgeois that Lula and the PT were no longer useful, that they weren’t able to control the mass movement as they did before. June 2013 also exposed how fragile the political system is when facing the crowd, even though this same crowd didn’t hold any clear program. The deep economic crisis demanded a strong austerity measure that Dilma wasn’t able to implement, mainly because, in the name of being reelected, she presented a political program against any austerity and even denouncing the PSDB’s intentions of doing so. She took a measure to try to contain the Brazilian bourgeoisie by selecting Joaquim Levy as minister of the Economy, but it did not work. The great effort from the higher classes to put a stop on the June 2013 uprising and the attempt of a few Left sectors to put a stamp on the marches as a reactionary and middle class movement helped to spread confusion. It was in this context that the simulacrum of June was born: the mobilizations in favor of Dilma’s impeachment on 2015.
The Lava Jato operation, and the need to drain the leakage, threw cold water on Lula’s and PT strategy of class collaboration. Achieving Dilma’s impeachment was a matter of survival to the high elite of the country – they wanted to stop the investigation process and knew Dilma wouldn’t do it – and also for the capitalist economy, that demanded strong and deep austerity measures that the President at the time was too fragile to apply. The bourgeoisie hesitated for a while before campaigning in favor of Dilma’s impeachment. Their main strategy was to solve the problems without creating big traumas, maintaining PT on their circle of power, to take them off the game only on the elections in 2018, to take control of the country again.
This strategy wasn’t possible, amongst other reasons, but mainly because the high elite was desperate to stop the Lava Jato operation. However, not even the impeachment was able to stop investigations, that counted with the support of two general state attorneys, named by Lula and Dilma, and also with the majority of STF, also named by them. The highest court of justice needed to sustain its credibility to act on the decisive moment. And so it went.
The STF and precisely Cármen Lúcia and Rosa Weber assured Lula’s arrest. Cármen Lúcia who also conceded the decisive vote to free Aécio Neves, helping to drain a specific leakage.
The voting of Lula’s habeas corpus before voting the ADC (declaratory action of constitutionality, a judicial action for instating judicially that a norm is compatible with the Constitution), that could change jurisprudence of the Supreme Court on arrest on second instance, was a coup promoted by Cármen Lúcia. A coup that could not succeed without the vote of Rosa Weber, that contradicted her own conviction, allegedly saying that she needed to be coherent with the understanding of the majority – but a majority that was only majoritary because of her vote.
There is only one conclusion left, as I already said in other occasions, that what we saw with Dilma’s impeachment was a coup. Not a coup such as we lived in 1964, as some PT supporters said at the time, trying to unify everyone around Dilma’s flag, but it was an institutional coup. All Brazilian institutions, strongly supported by Dilma and Lula during the PT’s 13 years in government, were actors and accomplices of the coup.
If during the 13 years that the PT was in government they had at least tried to build another institutionality, if they had put in discussion the idea of another political, electoral and economical model, and if they had fought to deepen the democracy through a mechanism of more popular and direct participation on the big political decisions, history could have gone another way. Maybe, for different reasons, Lula would still be arrested. But on that case, all the workers on the “ABC paulista”, the industrial region in Greater São Paulo, would have risen to defend him, the resistance would have been imposed by mass mobilizations. Even if, at the end, the PT turned out defeated, the party wouldn’t be demoralized, with major leaderships accused and arrested by corruption.
But had all of that happened, Lula wouldn’t be Lula and the Socialism and Liberation Party (PSOL) perhaps wouldn’t even exist. The actual history is different. Lula had already won the elections with the decision to govern within the institutionality, without questioning it a single millimeter until it turned against him. He chose to expel the so-called “radicals” to satisfy the markets. He also chose to adapt to the methods of bourgeois politicians, of favor exchanges, of nominations for shadowy interests. Finally, he chose to maintain the economy at capital’s service. That’s why, while we add ourselves to the defense of Lula’s freedom, we are also convinced that a new Left is needed that won’t repeat as farce the tragedy we are witnessing.
Defending Lula’s freedom does not mean following him politically. Unity is an important instrument in the struggle for a concrete task, but it presupposes political independence, and never the deification of a figure that we have been criticizing for years. To build a third political space is the only way to avoid the growth of the neoliberal Right and to stop the hand of the far-right, our main challenge.
That is why it’s so important to engage in a truceless combat to Bolsonaro’s candidacy, who in his figure sows hatred and deceives the people by selling an anti-systemic figure, when in reality he is nothing more than a man who defends the oldest and most nefarious political system for the people, the military dictatorship. We also must battle strongly Geraldo Alckmin’s candidacy, the markets and the great media’s favorite. A follower of Opus Dei, one of the most reactionary religious doctrines in the world, the São Paulo governor is one of the bourgeoisie’s true children on this election. He has been preserved by justice and the great media, but is strongly committed to the São Paulo schemes by the “tucanato” (the PSDB group that rules in the state), like the embezzlement of school lunch money and the over-invoicing of the São Paulo subway construction. We need to demonstrate that we won’t remove the country from crisis and improve the life of the people by returning to the past of the dictatorship of the PSDB governments.
In this regard we defend that Lula is freed, particularly because there is no indication that the selectivity of justice is being overcome. Temer, for example, is not only still in government, but intends to dispute the reelection. Aécio, instead of arrested, intends to run for senator. Alckmin is the PSDB candidate. All of them in trouble with justice and very much behind Lula in the polls. None of them has the slightest chance to win if Lula runs for president (and Temer hasn’t even without Lula). That is why we are for Lula’s liberation and also for his right to run. After all, justice’s selectivity is interfering in the electoral process. And we are not naive to not realize that removing Lula from the election is to finish what they started with the parliamentary coup.
On the other hand, and at the same time, we will demand the end of the privileged forum and the celerity of judgments in the STF. We will demand that the Lava Jato investigations go until the end. Lula himself has said that he is not against the Lava Jato, and the PT supporters should listen to the former president on this. After all, fighting corruption is a duty of the Left. We cannot let the Right, that’s always been corrupt, fly this flag. Just as how we cannot accept that political, selective decisions are taken to arrest one of the main applicants of the presidential elections.
Luciana Genro is a lawyer. She is a former congresswoman, founder and leader of the PSOL and of the Left Socialist Movement (MES). She ran for president in 2014.