By Guilherme Torrentes (Master in Human Rights from the University of Minho)

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On January 1, 2023, Luiz Inácio Lula da Silva was sworn in as President of Brazil for the third time, after one of the fiercest electoral disputes since the re-democratization of the country (which occurred in 1985), in which Lula da Silva defeated Jair Bolsonaro. It is perhaps the end of a cycle of “lawfare” – a term that can be defined as the strategic use of law for the purpose of delegitimizing, harming, or annihilating an enemy[1] – that is, the perverse use of legal rules and procedures for the purpose of political persecution. This cycle of lawfare was initiated in a tentative way by what became known as “Mensalão” (a “mega” or “maxi” judicial process that culminated in the conviction of several political members of Lula’s first government for corruption) and worsened with the impeachment process of President Dilma Roussef and “Operação Lava Jato” (another “mega” judicial process that culminated in the illegal imprisonment of Lula for 580 days).

This cycle of lawfare has jeopardized the continuity of the democratic rule of law, as the Brazilian judiciary and criminal process have been instrumentalized by the exception and subjectivity undesirable to its performance, in order to achieve the desired political ends. It is worth noting that in 2018, the Brazilian State failed to comply with a recommendation of the United Nations (UN) Human Rights Committee to guarantee Lula the right to run for the presidential elections of that year, invoking its domestic laws to not apply Article 25 of the International Covenant on Civil and Political Rights (which guarantees every citizen the right and the opportunity, without unreasonable restrictions, to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors).[2]

This shows that checks and balances did not operate in a satisfactory manner during a recent period in Brazilian history, enabling a political dispute through the judiciary that persecuted and ousted politicians through processes that did not respect the due legal process, the legal-constitutional guarantees, the fundamental rights.[3]

This cycle of lawfare culminated with former President Jair Bolsonaro discrediting the Brazilian electoral system himself – in a sort of Latin American remake of former United States President Donald Trump’s strategy – stating that if he lost the elections it would be because of “something abnormal”.[4] Under the motto “Deus, Pátria e Família” (God, Country and Family) – originating in the “integralist movement”, known as the “Brazilian type of fascism”[5] – supporters were attracted on the basis of a false patriotism of isolation from the world, loaded with intolerance and unveiled prejudice against minorities.

Clearly, there was nothing unusual about the electronic ballot boxes and the Brazilian electoral process – on the contrary, it was a very tight race that ended with 50.90% to 49.10% of the valid votes in favor of Lula, which demonstrated both a resilience of the Brazilian left, especially the “Partido dos Trabalhadores” (Workers’ Party), but also the consolidation of a still rising extreme right, represented by Bolsonaro and his allies.

It is important to highlight Bolsonaro’s delay in acknowledging his just defeat, [6] as well as doing so in a timid and unassertive way,[7] creating space for his base of support to feel supported in delegitimizing the electoral process. In the days following the election result, Bolsonaro supporters began protests over the democratic election and defeat, which included closing highways[8] and calling at barrack doors for a military coup to keep President Bolsonaro in power. [9]  After Lula’s inauguration, such acts finally began to be shut down, in a sort of forced imposition of reality.[10]

In any case, the Brazilian democratic institutions were submitted to a “life test” during the electoral process, and it is important to highlight the performance of the Superior Electoral Court in the face of the so-called fake news. The body in question has established a real-time checking system, called “fact or rumor”, and has also expanded its police power to remove almost instantly from networks, media and campaign materials, content considered false and/or out of context.^[11] This movement generated controversy in the legal community due to its implications on freedom of expression, and it is certain that such developments will still be subject to extensive analysis in order to find a balance point in the prevention of fake news.

Also at stake was Brazil’s standing with the rest of the world, since during Jair Bolsonaro’s government, Brazil’s foreign policy was diverted from its tradition of multilateral cooperation, turning the country into a kind of international pariah. Proof of this was the deterioration of Brazilian relations with the European Union and Mercosur, as well as Brazil’s negligence with environmental policies (especially regarding the Brazilian Amazon), which compromised the continuation of a free trade agreement between the two blocks held to this day.[12]

The signs that with Lula there would be a turning point regarding Brazil’s role in the world were already evident even before the elections, when he was received by Emmanuel Macron, the French President, in Paris, with honors as head of State at the end of 2021, to address, among other things, climate urgency and global issues such as hunger and poverty.[13] With the invasion of Ukraine by Russia in February 2022, the return of a democratic Brazil to the international scene – especially in the context of the emerging economies known as BRICS (Brazil, Russia, India, China, and South Africa) – has become even more relevant in the reshaping of the new global order.

Now, after Lula da Silva’s comeback, what were once signs have become facts. First, because it was the event with the largest participation of foreign delegations in Brazil since the 2016 Rio Olympics, with the presence, for example, of the heads of State of Portugal, Germany, and Spain – but also the high representatives, on equal terms, of the United States and China, or Ukraine and Russia. Secondly, because on his first day in office, Lula da Silva enacted the reactivation of the “Amazon Fund” – a fundraising mechanism for biome preservation and oversight projects deactivated by Jair Bolsonaro as of 2019 – which already has a pledge of 35 million euros in donations from Germany.[14]

The challenge then remains for the new government to pull Brazil out of a state of traumatic shock. Primordial to this will be to restore the democratic consciousness of a nation sunk in a manichean sentiment of good versus evil, according to which corruption is the “cosmic evil” of humanity bent on destroying it – and not a matter for the police, as it should be. Corruption has to be fought within the framework of the rule of law – and not by subverting the law, especially fundamental rights, through the tools of what has become known as lawfare – in a process warped by the spread of “anti-politics” or of what is “anti-establishment”. It is important to establish politics as the only means of legitimate dispute between divergent positions, based on the strength of the best argument – and that it should be at the service of improving the living conditions of the population.

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[1] Cristiano Zanin, Valeska Martins, Rafael Valim, “Lawfare: uma introdução” (São Paulo: Editora Contracorrente, 2019), 26.

[2]  “TSE indefere pedido de registro de candidatura de Lula à Presidência da República”, Tribunal Superior Eleitoral. Available at: https://www.tse.jus.br/comunicacao/noticias/2018/Setembro/tse-indefere-pedido-de-registro-de-candidatura-de-lula-a-presidencia-da-republica.

[3] Guilherme Torrentes, “Lawfare no âmbito da pós-democracia: estudo sobre o uso perverso de normas e procedimentos jurídicos para fins de perseguição política” (Master’s Diss., University of Minho, 2022), 122.

[4] “Em Londres, Bolsonaro volta a atacar sistema eleitoral sem provas”, Jornal Extra, September 18, 2022. Available at: https://extra.globo.com/noticias/brasil/em-londres-bolsonaro-volta-atacar-sistema-eleitoral-sem-provas-25574813.html.

[5] Edison Veiga, “Como “Deus, Pátria e Família” entrou na política do Brasil”, Deutsche Welle Brasil, October 7, 2022. Available at: https://www.dw.com/pt-br/como-deus-pátria-e-família-entrou-na-política-do-brasil/a-63371501.

[6] Carla Araújo, et al., “Bolsonaro já é o candidato que mais demora a admitir derrota desde 2002”, UOL, October 30, 2022. Available at: https://noticias.uol.com.br/eleicoes/2022/10/30/em-silencio-bolsonaro-ja-e-candidato-que-mais-demorou-a-reconhecer-derrota.htm.

[7] Victor Ohana, “Derrotado, Bolsonaro quebra silêncio sem reconhecer abertamente o resultado da eleição”, Carta Capital, November 1, 2022. Available at: https://www.cartacapital.com.br/politica/derrotado-bolsonaro-quebra-o-silencio-sem-reconhecer-abertamente-o-resultado-da-eleicao/.

[8] Maria Eduarda Portela and Daniela Santos, “Protestos contra derrota de Bolsonaro ainda bloqueiam 187 locais”, Metrópoles, November 1, 2022. Available at: https://www.metropoles.com/brasil/protestos-contra-derrota-de-bolsonaro-ainda-bloqueiam-187-locais.

[9] Duda Monteiro de Barros, “No Rio, eleitores de Bolsonaro não aceitam derrota e pedem golpe militar”, Revista Veja. November 2, 2022. Available at: https://veja.abril.com.br/politica/no-rio-eleitores-de-bolsonaro-nao-aceitam-derrota-e-pedem-golpe-militar/.

[10] Lucas Marchesini and Lucas Della Coletta, “Acampamento em QG esvazia, e parte de bolsonaristas deixa local em dia de posse de Lula”, Yahoo Notícias, January 1, 2022. Available at: https://br.noticias.yahoo.com/acampamento-em-qg-esvazia-e-201100264.html.

[11] Paulo Roberto Netto, “TSE amplia poder de polícia para remover fake news na reta final da eleição”, UOL, October 20, 2022. Available at: https://noticias.uol.com.br/eleicoes/2022/10/20/tse-poder-de-policia-remover-fake-news.htm.

[12] “Política ambiental brasileira atrapalha acordo UE-Mercosul”, Poder 360, May 2, 2022.Available at: https://www.poder360.com.br/internacional/politica-ambiental-brasileira-atrapalha-acordo-ue-mercosul/.

[13] Jean-Philip Struck, “Macron recebe Lula com honras de chefe de Estado em Paris”, Deutsche Welle Brasil, November 17, 2021. Available at: https://www.dw.com/pt-br/macron-recebe-lula-com-honras-de-chefe-de-estado-em-paris/a-59849982.

[14] “Alemanha anuncia envio de 35 milhões de euros para Fundo Amazônia”, Poder 360, January 2, 2023. Available at: https://www.poder360.com.br/internacional/alemanha-anuncia-envio-de-35-milhoes-de-euros-para-fundo-amazonia/.

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