Experts explain everything surrounding Lula's candidacy.

By Stella Bruna Santo and Gabriel Borges, in Conjur - Analyses are intensifying, including those of judges, regarding the registration of the candidacy of former President Luiz Inácio Lula da Silva, which seem to converge on an unusual prejudgment that considers him ineligible beforehand.

Since we do not conceive of the Electoral Court as a mere procedural department for verifying the documents submitted by candidates, our intention is to include, in this debate of such magnitude, some fundamental elements of a preliminary nature and with a constitutional bias, aiming to contribute to the discussions that will soon face our superior courts and will be a matter of national interest.

Firstly, we would like to point out that the Federal Constitution establishes party affiliation as a condition of eligibility and, consequently, prohibits independent candidacies. The Workers' Party (PT) has the constitutional right to participate in the presidential election, as it is a legally constituted and fully functioning political party. The PT can, therefore, request the registration of former President Lula's candidacy.

Here is the first reversal we are witnessing today, already with repercussions in the electoral process. The PT (Workers' Party) is the legitimate party to choose its presidential ticket and request registration with the TSE (Superior Electoral Court). While it is true that the PT can compete, it is also a fundamental rule of Electoral Law, respecting the principle of equal conditions in the contest, that the party has the same rights as other competitors, so that it can effectively participate in the pre-campaign activities of the presidential elections. Other parties were guaranteed participation in debates on radio, TV, and the internet, but, disregarding the aforementioned constitutional principles, these rights are being denied to the PT in the name of its pre-candidate.

Other facts related to the conviction and imprisonment of former President Lula, particularly the events of recent weeks, reveal a pattern of repeated violations of constitutional principles. Not surprisingly, there is a growing number of pronouncements from renowned jurists, both within and outside the country, as well as international political entities and figures, who consider him a political prisoner, all denouncing, with evidence, the numerous illegalities stemming from a criminal process that many define as a judicial farce.

In this context, the decision of the UN Inter-American Human Rights Committee to analyze the complaint filed by former President Lula's defense gains relevance. The complaint presented robust evidence of abuses of power in the handling of the case by the first-instance judge (with repercussions for the judicial system as a whole), pointing to the absence of guarantees of independence in the criminal proceedings to which Lula is being subjected.

All these issues directly impact the judgment of the candidacy registration request to be submitted by the PT (Workers' Party), and deserve consideration. Even if violations of guarantees in criminal proceedings are overlooked, the Electoral Court has the constitutional role of preventing the many illegalities already perpetrated from extending to the electoral sphere, in order to guarantee that the fundamental and most important precept of democracy—that of popular sovereignty—is preserved without flaws or fraud, preventing the many schemes that arise daily to curtail the political rights of a former president who intends to once again run for the highest elective office in the Federative Republic of Brazil.

To fully grasp the repercussions of all these violations before the Electoral Court, we have summarized in two points some practical aspects concerning the registration process of the PT's presidential ticket for the upcoming elections:

I. Regarding the political rights of former President Lula
When discussing the full political rights of former President Lula, the content of the decision by the UN Inter-American Committee on Human Rights must be considered, which cited Article 25(b) of the International Covenant on Civil and Political Rights, establishing "the right of every citizen to vote and to be elected in 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."

This decision has already been communicated to the Brazilian State, which, as a signatory, is obligated to ensure these guarantees to Lula. Therefore, this matter is subject to analysis by the TSE (Superior Electoral Court), since it refers to the exercise of political rights, requirements and conditions of eligibility, a matter of constitutional content.

Furthermore, one of the most important constitutional principles of the Brazilian legal system is the preservation of the fullness of political rights, which cannot, under any circumstances, be suspended until a final and unappealable conviction is reached, something that is still far from being achieved in the case of his criminal proceedings. This is also a constitutional matter that can only be assessed during the application for registration of candidacy, since the party will certainly present, at the appropriate time, evidence that this eligibility condition is met.

Therefore, there cannot be a summary dismissal outright, as some magistrates have already anticipated in news published in the national press. Any attempt to assess this matter before the judgment of the registration request (or under the aspect of conviction in the second instance, electoral clearance, or the Law of Ineligibilities) constitutes a serious offense against the Federal Constitution and should be the subject of appropriate appeals before the Supreme Court, not only due to the blatant violation of the principles of full defense and due process, but also because it conflicts with the opinion of the UN Inter-American Committee on Human Rights.

II. Regarding the Clean Record Law
There is no doubt that elections are the main expression of our democracy. It is in this context that the Clean Slate Law must be understood; it was not approved by the National Congress to be used as an enemy of popular sovereignty or as a weapon against voters.

When judging challenges to candidate registrations, the Electoral Court must be guided by the principle that the best judgment is always that of the people at the ballot box, so as not to remove from the race candidates who can demonstrate that they effectively meet the eligibility requirements. This assessment is not based solely on a linear analysis of the documents submitted by the candidates—because the Electoral Court is not a mere registry office—but on a joint examination of all the elements presented, since tangential issues may have arisen precisely with the intention of unduly interfering in the electoral process.

On the other hand, the intention here is not to address the constitutionality of the Clean Slate Law, but rather to discuss the teleological elements regarding the scope of the provisions of article 1, I, subparagraph “e” of Complementary Law 64/90, always in light of constitutional precepts.

Without hesitation, the literal interpretation of this provision cannot be applied automatically, otherwise other principles of the Federal Constitution, which carry greater weight in the interpretation of electoral rules, would be nullified. If the intention of the Clean Slate Law was to ban from electoral contests those who have committed crimes of a relevant nature to prevent them from becoming representatives of the people, on the other hand, the Law on Ineligibilities itself provides for the specific competence of the Electoral Court to analyze whether a candidate falls under the hypotheses foreseen in the law, which cannot occur automatically.

To serve as a benchmark, let us take as an example what the Electoral Court already does when it analyzes, on a case-by-case basis, the matter of challenging the registration of a candidacy based on subparagraph “l”, relating to conviction for administrative misconduct, by defining, only at the time of the registration judgment, whether or not there is a willful act, damage to public funds and illicit enrichment, regardless of any decision already rendered in other spheres of the ordinary courts.

Similarly, with regard to subparagraph “e” of the same article, the Clean Slate Law cannot be applied arithmetically, nor can it be considered a mere transposition of a judicial decision from another sphere that does not even deserve to be analyzed by the Electoral Court.

In this regard as well, the uniqueness of each case needs to be analyzed in light of whether or not constitutional precepts have been violated, with the Electoral Court itself assessing the possibility that the candidate's criminal conviction may not stand in higher courts, thus authorizing him to contest the election.

In addition to the ordinary courts assessing the plausibility of appeals pursuant to Article 26-C of the Election Law, the Electoral Courts themselves must analyze the registration from this perspective, especially in cases of flagrant violations of constitutional provisions, including verifying whether the criminal conviction had, directly or indirectly, the objective of affecting or interfering with the electoral process. And such analysis can only be carried out by the specialized courts as the original and competent instance.

In other words, it is fundamental that the plausibility referred to in the Election Law also be analyzed by the Electoral Court from another angle, namely, from the perspective of preserving both popular sovereignty and the full political rights of the candidate, which cannot suffer any undue interference arising from a conviction resulting from a judicial process tainted by flaws or illegalities.

In the case of former President Lula, the review of his criminal conviction by the third and fourth instances is certain, and the violations of constitutional guarantees reveal, even in a superficial analysis, a deliberate repercussion on his candidacy registration, which is why it cannot be allowed that the conviction in the second instance could automatically disqualify him, causing irreversible damage to the exercise of his political rights.

The illegalities already committed in the criminal sphere are glaringly obvious. And if the criminal proceedings have had their deadlines shortened in order to prevent former President Lula from running in the general elections on October 7th, will the Electoral Court refrain from analyzing this issue, which even compromises the principle of popular sovereignty? It cannot, therefore, remain inert, nor ignore the gravity of what has been occurring so far in his criminal proceedings, the intricacies of which, incidentally, are public knowledge and have been dissected and propagated throughout the country.

In addressing such a debate, it is necessary to consider that, in order to preserve the constitutional guarantee of political rights, an unjust and unconstitutional sentence cannot produce all its effects, both because of the possibility of the conviction being overturned in higher courts and because of the arithmetic non-application of subparagraph “e”. An unjust and unconstitutional conviction cannot generate automatic ineligibility, as its application would be equally unjust and unconstitutional.

Former President Lula and his party possess evidence that needs to be analyzed by the Electoral Court at the appropriate time, which is during the registration process of his candidacy. This process cannot be judged as if it were presented to a mere intermediary who approves or rejects his documentation.

We understand that the automatic application of the provisions of Article 1, I, subparagraph “e” of Complementary Law 64/90 also violates the Federal Constitution. In the case of Lula's registration, it would represent a legal aberration and an attack on his political rights and the principle of popular sovereignty, as well as the right of Brazilians to elect their representatives in free and authentic elections.

May the Electoral Court rise to the current challenge. May no further injustices be committed against those who are already being wronged by the Justice system itself.