The Courts May Decide Brazil's Election, Attorney General Warns

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(Bloomberg) -- Brazil’s democracy is under strain and this year’s presidential race risks being dragged into a lengthy legal quagmire, the country’s attorney general said in an interview.

Numerous appeals regarding the eligibility of former President Luiz Inacio Lula da Silva mean the current front-runner in opinion polls is likely to overshadow the elections regardless of whether he can actually run. He may even be on the ballot in October but prohibited from taking office.

"Yes, there is a risk," said Grace Mendonca, the 49 year-old attorney general said in an interview at the Bloomberg News bureau in Brasilia. "In an ideal world this would be decided quickly, it would be resolved soon, so as to allow for some judicial certainty."

This is the third consecutive year in which Brazilians are looking to their judiciary to help pull the country from the brink of crisis. In 2016 the Supreme Court took center stage in a legal battle surrounding the impeachment of President Dilma Rousseff. Last year, the electoral court voted to shelve charges that could have annulled President Michel Temer’s term. But as judges increasingly take center stage in the national drama, Brazil’s legal system is coming under unprecedented scrutiny by the public.

Judicial Overreach

Asked about the increasing tendency of Brazilian deputies to litigate political disputes rather than settle them in Congress, Mendonca said that until recently the judiciary knew the areas it needed to avoid. Increasingly, "judges themselves are starting to act like legislators," she said. "They started to decide, to establish rules, to set up goals for a particular purpose."

Mendonca said that some judges have sought excessive roles in political and economic affairs, but added that a weak executive and legislature have forced the judiciary into the spotlight.

"We need to come to an arrangement between the powers, as we tried in the past, so that each one is clear about the space it occupies," she said.

In a sign of how politicized the Brazilian public believes the judiciary has become, Gilmar Mendes, a Supreme Court judge and outgoing president of Brazil’s top electoral court, was recently booed and jeered on a commercial flight. Both the left and the right have criticized his willingness to grant habeas corpus to politicians and executives convicted as part of the Carwash corruption probe.

Meanwhile Sergio Moro, the lead judge in that investigation and the man who convicted Lula, is currently coming under fire for claiming a housing allowance despite owning a flat in the city where he works, a judicial perk generating outrage in the local media.


While Mendonca said that the judiciary needed to resolve the question of Lula’s candidacy as "quickly as possible," she added that its speed would depend on the length of time of the appeals process.

With the Supreme Court likely to be the final arbiter in the case, Mendonca said that while it could not be consulted before other legal moves have run their course, the nation’s most senior judges could still prepare for what is a widely anticipated development.

Though she said Brazil’s institutions could end up strengthened by the clashes between the executive, legislative and judicial powers, she acknowledged it was hard going.

"It’s not easy, because we are in a period of crisis," she said. "Democracy is being tested."

©2018 Bloomberg L.P.

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