A shadow has been cast over the legitimacy of the October 2018 Brazilian presidential elections. The Porto Alegre Regional Federal Tribunal’s (RFT) ratification of Curitiba judge Sergio Moro’s decision to convict ex-president Lula Da Silva of “passive corruption” not only puts at risk the former president’s freedom, but also the possibility for him to be a presidential candidate. Although being the strongest candidate isn’t a proof of innocence, it is suspect in a country whose democracy is going through a profound legitimacy crisis. The sentence against Lula could condemn Brazilians to being forced to pick from among second choices in October.

The weakness of the legal arguments used in the sentence that condemns Lula’s “indeterminate acts” as head of State call into question whether the popular Brazilian politician got the right to a fair trial. The ruling foreshadows a kind of “preventive coup” to deprive him of a mandate, without allowing the public to decide if they want to entrust him with one or not.

The judicial branch acted with a clear bias. It reduced periods for actions against Lula. It converted a process that has implied months of trial in the dozens of cases open against leaders of all political parties, into a few weeks in Lula’s case. This suggests that the judges involved in the matter had their eyes on the electoral calendar. The difference in treatment is even more marked when one takes into account the extremes to which the Supreme Federal Tribunal (SFT) has gone. Last October, the SFT delegated power to the Senate to remove Aécio Neves, an ex-presidential candidate who has been found guilty in a heavily documented corruption case.

The weakness of the legal arguments used puts the ex-president’s right to a fair trial into question and foreshadows a kind of ‘preventive coup’

The judges, the public prosecutor’s office, and the federal police used norms promoted by Lula and Dilma Rousseff and funds appropriated and assigned to the institutions by both ex-presidents to carry out a formidable task. They have dismantled a good portion of the framework of illegal collusion between the State and large private economic groups, which had been the basis of the Brazilian economy and politics for the last 50 years. The autonomy that those norms and resources provided them were put to good use and has resulted in dozens of convictions and enormous asset recoveries.

However, at some point along the way, some judges and prosecutors came to believe that they had received a political mandate for re-founding the Brazilian republic. Signs of this overreach are the public statements of various judges and prosecutors expressing their political opinions in media outlets or on social media, and certain actions of Judge Moro, including leaking private conversations between Lula and Dilma, for which he had to apologize before the Supreme Federal Tribunal.

The statements of the Porto Alegre RFT judges in their ratification of Lula’s conviction had the same unequivocal tone. The hearing was not focused on the still-unsubstantiated claim of the alleged transfer of an apartment to the ex-president by a construction company. What was discussed instead was the mensalão [2005 vote-buying scandal during Lula’s first administration] and the corruption drama surrounding Petrobras and its directors.

The undeniable political responsibility of Lula in those cases, in his first and second terms, is not what the judges should be broadly assessing. That obvious truth goes over the heads of these and other Brazilian judges and prosecutors every day. When these Rio de Janeiro judicial branch authorities compare themselves contentedly with the Mani pulite [anti-corruption operation] in Italy of the early 90’s, they forget two facts. The first, which concerns them directly, is the strict adherence to the law practiced by their Italian counterparts. The second, which is way beyond the scope of their job, is that the political consequence of that legal process in Italy was the rise of Silvio Berlusconi.

“At some point along the way, some judges and prosecutors came to believe that they had received a political mandate for re-founding the Brazilian republic”.

The legal case against Lula has its specifics details, but it falls within a very particular history. Mauricio Santoro, professor at the Rio de Janeiro State University, recalled recently that, since 1945, only presidents Eurico Dutra and Fernando Henrique Cardoso were exempt from political trials or actual trials (or a case such as the suicide of Getulio Vargas). What is really unique about Lula’s case is that he faces this trial as the most popular politician in the country and with very real possibilities of being reelected president.

The legitimacy of any democratic system is renewed every time the electorate expresses its will at the ballot box. This should be even more true in Brazil’s 2018 elections. This year’s October elections should mark the end of the anomalous period that began with the removal of Dilma Rousseff in 2016 and that brought about a change in government that was never put to popular consultation. After two years of being governed by a man who is breaking world records in unpopularity, and who isn’t in prison only because of a political decision made by a supportive congress, it’s urgent that this year’s election restore the presidency’s democratic authority. To do that does not necessarily mean electing Lula. A defeat of the ex-union leader in free and competitive elections would give power to a new president free from the inherent defects of the current one.

For the Workers’ Party (WP), Lula’s conviction is a new existential challenge. If Lula is barred from being a candidate, the WP lacks an alternative with even a fifth of the support that Lula has in current polls. Weakened by the abysmal results of the last municipal elections, the WP owes almost all of its current vitality to the extraordinary relevance of the popular leadership of its founder and born leader. The current political conditions are far from those which allowed the then-president to position Dilma as a viable candidate or to make his preferred candidate Fernando Haddad mayor of São Paolo. Neither Jacques Wagner nor Haddad himself would be able to garner more than 5% support today.

Public opinion analysis predicts immediate shifts of voter support from Lula to the candidacies of Marina Silva, who has become the archenemy of her former party, or to a WP ally such as Ciro Gomes, with the Democratic Labor Party (DLP). It could also shift toward the Socialism and Freedom Party (SFP), which emerged from a left flank of the WP, or toward the ultra-right Jair Bolsonaro, the only other candidate who has reached double-digit support in voter surveys.

The WP is betting on popular street mobilization. However, Brazilian elites are particularly indifferent to these kinds of demonstrations. Meanwhile, the party has to complete its declaration of Lula’s candidacy, without any guarantee that the Superior Electoral Tribunal will register him in August. It also has to think of a vice president who could inherit part of Lula’s voters should he be disqualified. Some of these tasks appear contradictory: should they choose a WP vice president, or one from an allied party? In the event that the ex-president’s candidacy is disqualified, how can they avoid losing electoral allies who are looking to piggyback on Lula’s popularity but who believe the WP to be dead weight without him?

Lula’s fate is much more than that of a leader as imperfect as he is formidable. It is tied to whether Brazil can regain a certain level of democratic normalcy or will remain bogged down in the paralysis of a delegitimized political system. It is also linked, crucially for the popular sectors, to the possibility of putting a stop to the wave of rollbacks in basic rights that has characterized Michel Temer’s presidency.

It remains to be seen if, paradoxically and tragically, a hypothetical President Lula should return to govern with the support of, and making concessions to, some of the same people who have pushed this trend. Before all of that, Lula has to find out whether or not he’s been exiled from the judges’ republic.

Gabriel Puricelli is Coordinator of the International Politics Program at the Laboratorio de Políticas Públicas.  This essay was originally published in the Replanteo magazine. We are printing it here with permission of both the author and the magazine.

Translated by Lindsey Hoemann