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)

Could Brazil's Lula really run? It's not likely

August 17, 2018 - 8:13 am

SAO PAULO (AP) — While former Brazilian President Luiz Inacio Lula da Silva has long insisted he can run for office despite a conviction, 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 on Wednesday, despite his conviction for corruption and money laundering last year — a decision that was upheld in January by an appeals court. According to a law the ex-president himself signed, candidates with a conviction upheld are ineligible to hold office for eight years.

But such candidates are not automatically barred from campaigning; 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."

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 held that the charges against him — trading favors with a construction company in exchange for the promise of a beachfront apartment — were 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 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 say.

"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.

So it's true that candidates are allowed to continue campaigning after a rejection from a lower court, said Marilda Silveira, an expert in electoral and administrative law at the Institute of Public Law of Sao Paulo.

But the prevailing understanding, she said, is that a decision by the Supreme Electoral Tribunal, since it's the highest electoral court, takes immediate effect.

"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," said Silveira, referring to the Workers' Party's position.