Jorge G. Castañeda
Brazil’s upcoming presidential election – its ninth since the restoration of democracy in 1985 – will take place against a bleak background, and not just because the National Museum in Rio de Janeiro was recently destroyed in a fire, or even because the economic recovery is faltering. With myriad judicial and corruption scandals distorting the electoral process, there is now a growing disconnect between justice and democracy.
The question of which will prevail has already received a partial response. In the wake of the Operation Car Wash (Operação Lava Jato) corruption scandal – which, since breaking in 2014, has rocked Brazil’s political class, business sector, and judicial system – former Brazilian President Luiz Inácio Lula da Silva was convicted of corruption. With his case still under appeal, he now languishes in a prison cell serving a 12-year sentence.
Nonetheless, Lula, who remains Brazil’s most popular politician, wants to run for president. Earlier this month, electoral authorities decided that he could not, because of Brazil’s “clean slate” law – signed by Lula himself during his second term – which prohibits anyone with an upheld conviction for corruption from seeking public office. A large segment of the Brazilian public supported the decision to keep Lula out of the race.
Yet there are still plenty of Brazilians – and foreign observers, including me – who harbor serious doubts, for two key reasons. First, Lula is in prison for a relatively trivial offense (at least for now), and he was convicted by a lower court. Striking the frontrunner from the ballot for relatively minor misdeeds relating to a highly politicized case is an excessive and dubious maneuver that is likely to disappoint and even enrage the millions of Brazilians who still venerate Lula.
Second, as a practical matter, keeping Lula off the ballot increases the odds that Jair Bolsonaro – a former paratrooper known for his homophobic, sexist, racist, and quasi-fascist stances – will prevail.
To be sure, while Bolsonaro was the front-runner before the final decision on Lula’s eligibility, subsequent polls indicated that, in the expected run-off vote, Bolsonaro would be defeated easily by most other candidates. But everything changed on September 6, when Bolsonaro was the victim of a failed assassination attempt that forced him to suspend his campaign for several weeks. He underwent several operations, barely survived, and benefited from a surge of sympathy. Today, some polls have him securing over 30% of the vote in the first round, more than twice that of other candidates.
As for Lula, he now has little choice but to throw his support behind his running mate, Fernando Haddad, who has served as mayor of São Paulo and education minister. But while Lula’s support has boosted Haddad’s standing – he is now roughly tied with most of the other contenders – he remains well behind Bolsonaro in the polls.
Of course, it is possible that the situation will change drastically in the second-round run-off. In France in 2002 and 2017, the right-wing candidates – Jean-Marie Le Pen and Marine Le Pen, respectively – were soundly defeated when voters rallied behind their second-round opponents. Indeed, Jacques Chirac in 2002 and Emmanuel Macron in 2017 each received the support of practically everyone on the initial ballot, across the political spectrum, because none was willing to allow a xenophobic candidate to win the presidency.
But there is no guarantee that Brazilians will rally around Bolsonaro’s opponent in the same way, or that his advantage in the first round will not be too great to be overcome in the run-off. In either scenario, Brazil would end up with an extremist president who has praised the military dictatorship of the 1960s and 1970s, because the only candidate who could have beaten him was struck from the ballot. Brazilian democracy could be destroyed because justice was upheld.
In an ideal world, justice and democracy always go hand in hand. But in the real world, we have to make tough calls, considering what we are willing to sacrifice for the greater good. For Brazil today, that means asking whether enforcing a strict interpretation of the law and punishing anyone who engages in corrupt practices is worth inviting a potential threat to democracy.
Many distinguished Brazilians with impeccable democratic credentials, such as Lula’s predecessor, Fernando Henrique Cardoso, argue that the law must be respected at all costs. This is not an easy argument to dismiss, especially given the possibility that Bolsonaro could still lose the election – a win-win outcome.
But the risks created by adhering to this approach cannot be dismissed, either. From Hungary and Poland to Italy and Germany, not to mention the United States, extreme right-wing, authoritarian, populist, and anti-establishment political forces have gained power – or at least increased their influence over the government – by participating in democratic elections. Once in power, they subvert democratic institutions. In Hungary, for example, Prime Minister Viktor Orbán has taken advantage of his party’s parliamentary majority to stack the courts with loyalists, seize control of public media, and amend the constitution to weaken his opponents.
Against this background, we must ask ourselves a question that has no easy answer: To what extent should democrats – progressives and conservatives alike – bend the rules in order to protect democracy and the rule of law from those who seek to subvert it?
If it were up to me, I would have permitted Lula to participate in the upcoming election, thereby ensuring that Brazil’s democracy is safe from Bolsonaro. Plenty of people who are just as committed to democracy as I am might disagree. In any case, we can now only hope that Brazil’s newfound commitment to upholding the rule of law will not end up subverting it – and taking democracy down with it.