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Could Brazil’s da Silva really run? It’s not likely

August 17, 2018
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FILE - In this April 7, 2018 file photo, former Brazilian President Luiz Inacio Lula da Silva looks on before speaking to supporters outside the Metal Workers Union headquarters in Sao Bernardo do Campo, Brazil. Da Silva has registered on Aug. his candidacy for president, experts say there is a narrow path by which authorities could allow him to run. (AP Photo/Andre Penner, File)

SAO PAULO (AP) — While jailed former President Luiz Inacio Lula da Silva has long insisted he can run for Brazil’s presidency again despite his conviction, legal experts say the path to doing that is extremely narrow and unlikely to happen. And his Workers’ Party risks missing the deadline to register an alternative candidate if it pushes his case for too long.

The party defiantly registered da Silva’s candidacy in October’s election to much fanfare Wednesday, despite his conviction for corruption and money laundering last year — a decision that was upheld in January by an appeals court. Under a provision that da Silva himself signed into law while president, candidates who have had a conviction upheld are ineligible to hold office for eight years.

But such candidates are not automatically barred from campaigning for office. The Supreme Electoral Tribunal must officially accept or reject da Silva’s candidacy. In the meantime, he is free to campaign and receive the benefits of being officially registered, including access to the free television time allotted for political ads. Some of these benefits may be restricted by da Silva’s imprisonment, but he still holds a wide lead in pre-election polls.

“The fact of not being able to be a candidate doesn’t prevent you from trying to be a candidate,” said Daniel Falcao, a professor of electoral law at the Institute of Public Law of Brasilia. “The electoral law says that when a person presents his registration, he is a candidate, normally until the day that electoral authorities say he cannot be a candidate.”

The question of whether da Silva should be allowed to run has attracted attention even outside Brazil. On Friday, a group of U.N.-appointed human rights experts called for Brazilian authorities to ensure that da Silva “can enjoy and exercise his political rights while in prison,” including not barring his candidacy until all of his appeals have finished.

Experts say the electoral tribunal is all but certain to reject da Silva’s candidacy as it stands, but his supporters hope for a favorable decision in the criminal courts while election officials are considering his case. This would be a decision to overturn or suspend his conviction from either the Superior Court of Justice or the Supreme Federal Tribunal — the second-highest and the highest courts in the land, respectively.

Da Silva and his supporters contend such relief is a real possibility. They have always argued the allegation that he traded favors with a construction company in exchange for the promise of a beachfront apartment was trumped up precisely to prevent him from assuming the presidency again.

He and his party contend that behind his prosecution is a conspiracy to undermine the gains made during his 2003-2010 presidency, when da Silva oversaw an economic boom and shared its fruits with the country’s poor and working classes.

“Right now, we are concerned with guaranteeing the popular sovereignty,” said former Sao Paulo Mayor Fernando Haddad, who was registered Wednesday as da Silva’s vice presidential candidate. “And the people want to see Lula on the ballot.”

But the Workers’ Party also has to keep its eye on the clock. It only has until Sept. 17 to replace da Silva if he is barred. Haddad would likely then take the top spot. The first round of the election is Oct. 7.

Even though all eyes are currently on the Supreme Electoral Tribunal, it actually has very little margin to maneuver, experts said.

“If he doesn’t manage this (relief from a higher court), the electoral court has to decide he is ineligible,” said Carolina Cleve, a professor of constitutional and electoral law at the Autonomous University Center of Brazil. “It’s an objective criteria.”

The Workers’ Party argues that even if the electoral court rejects his candidacy, da Silva should still be allowed to continue to campaign because he would still have one last appeal: to the Supreme Federal Tribunal.

The party has identified dozens of mayoral candidates who were allowed to continue campaigning in the past even after their candidacies were rejected. But the cases of candidates for mayor begin in lower courts, while those of candidates for president go directly to the highest electoral court.

It’s true candidates are allowed to continue campaigning after a rejection by a lower court, said Marilda Silveira, an expert in electoral and administrative law at the Institute of Public Law of Sao Paulo. But, she said, the prevailing understanding is a decision by the Supreme Electoral Tribunal takes immediate effect since it is the highest electoral court.

“They are arguing to be able to continue the campaign until the Supreme Court decides because for them there exists a real possibility that there will be a preliminary decision that will suspend the conviction,” Silveira said of the Workers’ Party’s position.

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Associated Press writer Geir Moulson in Berlin contributed to this report.

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