Beware the Lula Precedent

April 9, 2018 By 0 Comments
Photo Credit: IOL

On Saturday, Brazil’s former president – and current presidential candidate – Luiz Inácio Lula da Silva handed himself in to police to begin what will ostensibly be a twelve-year prison sentence for fraud. Lula is accused of accepting an apartment from a favored contractor as part of a scandal involving the state-owned oil company PETROBRAS, although prosecutors failed to prove that he owned the apartment or, indeed, that he’d ever been there. (As Mexico’s Aristegui Noticias wrly noted, the apartment Lula was accused over constituted the “infinitesmal part” of the $8 million dollar house built for Peña Nieto’s wife by his own favored contractor in the exclusive Lomas de Chapultepec district of Mexico City.)

This comes on the heels of the impeachment of president Dilma Rousseff in 2015 in what has been come to be called a “soft coup”. The impeachment, combined with Lula’s jailing, would deal a severe blow to the Worker’s Party attempts to win a fifth consecutive victory in the presidential elections scheduled for October – which, according to Brazil-based journalist Glenn Greenwald, is entirely the point.

Meanwhile, in Mexico, Andrés Manuel López Obrador has stated that, if elected, the first initiative he intends to send to Congress will be to modify Article 108 of the Mexican Constitution, which provides the president with immunity – or a fuero – from prosecution during his term of office except for treason or other grave, high-bar crimes. In theory, stripping the president of immunity makes eminent sense: since its inception, politicians of all stripes in Mexico have hidden behind it to avoid facing charges for crimes committed while in office, including rampant corruption and conflicts of interest; indeed, for politicians of the worst ilk, seeking immunity from prosecution has been their primary motivation for seeking office in the first place. Immunity is extremely unpopular in Mexico, and a number of citizen’s movements have been pushing to eliminate it for years, with 15 states and the City of Mexico having already done so in whole or part. In addition to being extremely popular, the initiative would also seem to fit neatly into AMLO’s general program of cleaning up corruption, his top campaign theme.

But here’s the problem: if AMLO does win and succeeds in modifying the constitution to remove presidential immunity, who is to say that the first president to face charges won’t be AMLO himself? The historical precedent is there: in 2004, Vicente Fox and the PAN/PRI duopoly fabricated charges against him when mayor of Mexico City for disobeying a court order to cease building an access road to a hospital; the charges were a bald attempt to strip AMLO of his immunity and render him ineligible to run for president in 2006. The Congress duly voted for the desafuero, and only a massive popular outcry caused Fox to walk back his attack on democracy. What, then, would stop the powers-that-be from attempting to do something similar to an immunity-free President AMLO? As the Lula case shows, powerful interests that cannot win at the ballot box are all too happy to make use of any other means at their disposal to install more docile officials that are akin to their interests. And AMLO would be handing them an absolute gift.

Seeking to remove presidential immunity strikes me as part and parcel of the same AMLO naiveté that leads him to think that he will eliminate the nation’s corruption problem simply by leading by example. At the very least, the threat of bringing charges against him will be used by the right to keep him in line, thus dissuading him from attempting to cancel the privatization of PEMEX or other measures which threaten their interests. However much the idea of immunity has been abused and fallen into disrepute, its original intention was precisely to protect elected officials from being constantly distracted by petty, political-motivated lawsuits that would prevent them from governing. Or, one might add, soft coups.

Add to this AMLO’s other proposal to submit himself to a recall election every two years and the picture emerges of a candidate who is far too eager to unilaterally disarm. Even if he were to win each of the two plebiscites and succeed in serving out his full six-year term, he would be submitting his government to a wearing, weakening campaign every two years which would distract time and energy from enacting the transformative agenda he is promoting. One could contend that, by submitting himself to a popular vote every two years, he would be strengthening his democratic mandate to push for bolder reforms, but as he’s already promised to hold individual referendums on those very initiatives, the move to submit his own tenure to a vote strikes me as perilously redundant.

As a myriad of cases have shown, the toughest test for progressive governments is not being elected, but being able to maintain enough of a hold on office to be able to govern. On a continent where hard coups are a fresh memory and soft ones the thing of today, AMLO should take a hard look at whether his “democratizing” proposals might actually entail throwing the game away.