Sunday, March 03, 2019

The Externalization of Brazilian Law-Politics: The Imperium of International Human Rights and Creole Elites

The election victory of Jair Bolsonaro in the wake of the utter fracture of the traditional Brazilian political parties mirrors the collapse of traditional political party politics in the West.  I have already suggested the arc of this trajectory in American political life, the result of which has been the weakening of the leadership of the two principal political parties in the United States and the rise of mass grassroots organizations (Elite Engagement With Leadership Political Party Organizations: China and the United States Take Different Paths).  
And indeed, the nasty bickering and hand wringing that followed the voting—and the hysterical calls to dismantle the structures of this ancient Republic to suit the short-term ambitions of the factions that now appear to gasp power—all suggest the start of what passes for rectification campaigns in the U.S. From the day after that first Tuesday in November, the authority of both political parties shattered. The intelligentsia stood marked as substantially out of touch (both of the left and the right and within ivory tower, think tanks and among the chattering classes who inhabit news and social media), and the fault lines of social, ethnic, religious, economic, and sub-national divisions became much clearer. ("Yes, Donald Trump Will Be A Good President").
"In the United States today both political parties lie in taters; they now are more apt to respond to grassroots driving forces than to lead political life themselves." (Elite Engagement With Leadership Political Party Organizations). The forms of politics appear unchanged; their substance, however, is in the process of a great transformation, one that better suits the times.

Brazil has taken a different path, one perhaps inevitable given the context of its history and politics. Brazil has sought to embed its politics, and the legal structures through which politics is sometimes manifested, through the global human rights architecture centered in the institutions of the United Nations in Geneva. The recent focus of these manifestations have been the fierce battles for control of the Brazilian presidency that has seen a President impeached, another imprisoned and the election of another  which has sparked substantial opposition among global elites. The maneuverings make for fascinating reading, though the repercussions remain to be seen.  This post includes recent reporting: (1) Brazil's Lula should have political rights: U.N. Human Rights Committee; and (2) UN Human Rights Council To Probe Lula's Case in March with brief reflections on the internationalization of a legalized politics in states seeking to adhere to transforming models of liberal democracy. 

Where the United States has descended into data driven closed circles of opinion generation-response-opinion generation (a perverse version of the Chinese mass line applied by the American privatized vanguard parties), Brazil remains true to its imperial past, and its imperial dependencies. The habits of Empire, and the relationships of local elites to an imperial center now appear not in the form of an allegiance to a particular metropolitan state, but rather to a metropolitan apparatus of ideology and its norm structures. Here one encounters transnational constitutionalism in the service of liberal democracy and its management through law (here). Where the United States and China look inward for the management of its populations and their politics--the Brazilians look back outward to an imperial center for the management of its political structures and their effects.  

The current losers in Brazil's complex political structures provide an excellent example both of the way that politics in Brazil is deeply tied to legalities (a structure that appears more appealing int he U.S since the election of Mr. Trump and the efforts to use legal structures to end his presidency before its term expires), and the way those legalities are increasingly tied to international oversight beyond the control of the Brazilian political establishment (something that would be alien in the American context). Corruption was the legal lever used to political ends in Brazil. Operation Lava Jato, and the corruption scandals that plagued both Presidents Lula da Silva and his successor Dilma Rousseff (and here) effectively weakened their ability (through legal means) to continue to use the electoral process (through their political parties) to engage in the politics of control of the governmental apparatus of Brazil. But what makes Brazil different has been the willingness to then seek intervention from a foreign power--from the new imperial center for such things--the human rights apparatus in the form of the U.N. Human Rights Council and its institutions in Geneva.

Well into the campaign that brought Mr. Bolsonaro to power, Mr. Lula's supporters sought to appeal to the U.S. Human Rights apparatus in Geneva to de-legitimate the judicial proceedings against Mr. Lula da Silva and to ensure that he could serve as a candidate for the Presidency. 
The UN Human Rights Committee has requested Brazil to take all necessary measures to ensure that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections. This includes having appropriate access to the media and members of his political party. The Committee also requested Brazil not to prevent him from standing for election in the 2018 presidential elections, until his appeals before the courts have been completed in fair judicial proceedings. The technical name for this request is "interim measures" and these relate to his pending individual complaint which remains before the Committee. This request does not mean that the Committee has found a violation yet - it is an urgent measure to preserve Lula’s right, pending the case consideration on the merits, which will take place next year.
It is important to note that although this response is being provided through the UN Human Rights Office, it is a decision of the Human Rights Committee, which is made up of independent experts. This response may be attributed to the Human Rights Committee. (Information note on Human Rights Committee).
Ironically, Mr. Lula da Silva found himself the victim of a set of measures adopted during his presidency. "Itamaraty, the Brazilian foreign ministry, issued a statement shortly after the publication of the UN Human Rights Committee, clarifying that the Committee consists of individual specialists operating in a personal capacity and not nation states. It added that the conclusions of the committee are recommendations and do not have any "legally binding effects"" (Brazil Slaps Down UN Human Rights Committee Request on Lula).

SAO PAULO (Reuters) - The United Nations Human Rights Committee, a panel of independent experts, on Friday said it had requested that the Brazilian government allow imprisoned former president Luiz Inacio Lula da Silva to exercise his political rights as a presidential candidate.

Lula is the candidate for his Workers Party (PT) and leads presidential polls ahead of the October ballot, but is widely expected to be banned from running by an electoral court. He was jailed in April on a corruption conviction.

The U.N. Committee, which oversees countries’ compliance with the International Covenant on Civil and Political Rights, said in an emailed statement that it asked Brazil’s government “not to prevent him from standing for election in the 2018 presidential elections, until his appeals before the courts have been completed in fair judicial proceedings.”

The statement added the Brazilian government should ensure “that Lula can enjoy and exercise his political rights while in prison, as candidate in the 2018 presidential elections.”

“This includes having appropriate access to the media and members of his political party,” the committee said.

Brazil’s U.N. delegation in Geneva said in a written statement that the committee’s conclusions were not legally binding, but that the recommendations on Lula would be passed on to the country’s judiciary.

Under Brazilian law, Lula is allowed free access to his lawyers, which include some top PT figures, as well as weekly family visits. He is allowed to communicate in writing, but federal prosecutors say he is barred from making video or audio recordings.
U.S. will continue 'actions' against Maduro: Envoy

Lula’s legal team said in a written statement that they interpret the committee’s decision as meaning that “no Brazilian government entity can present any obstacles to former president Lula’s ability to run in the 2018 presidential elections, until his appeals are exhausted in a fair trial.”

Ahead of the Oct. 7 vote, Brazil’s top electoral court is expected to declare Lula ineligible in the coming weeks under a “Clean Slate” law that bans politicians from seeking public office if they have been convicted of a crime and it has been upheld on appeal, as is the case with Lula.

Lula has said his conviction was the result of political persecution and that it is part of a right-wing conspiracy to keep him from regaining the presidency.


But this is now old news.  Lula da Silva did not run for President and he did not win an election in which he did not participate.  That has caused all sorts of consternation among the global political class that saw in Mr. Bolsonaro's victory something darker and more ominous that the victory of a person whose political agenda differed from theirs. In early March 2019 Mr. Lula da Silva was reñeased from prison temporarily and permitted to attend his grandson's funeral (‘Lula,’ Ex-President of Brazil, Temporarily Leaves Prison for Grandson’s Funeral). "Leaders from the Workers’ Party, including former President Dilma Rousseff, came to pay their respects at the funeral, while around 200 supporters gathered outside the cemetery chanting, “Free Lula!” The party says he is a political prisoner." (Ibid.). 

Mr. Lula da Silva's lawyers have again returned to the UN Civil and Political Rights Committee seeking an opinion about the conviction and it conformity with basic human rights. The Venezuelan Press reported on the action (in English). 
UN Human Rights Council To Probe Lula's Case in March
The United Nations Human Rights Commission will analyze the case of former Brazilian President Luiz Inacio Lula da Silva who has been imprisoned since April on alleged corruption charges.

Lula’s lawyer denounced both Lula's arrest and the cruelty of the current Brazilian administration for not allowing Lula to attend his brother's funeral in January.

Lula's defense team handed the case over to the U.N. Thursday as reported by the Workers' Party (PT).

Lula da Silva, who was arrested after being convicted in the Lava Jato corruption case by a Federal Regional Court, is internationally recognized as a political prisoner. His imprisonment kept him from running for president in the October 2018 general elections and paved the way for the victory of far-right President Jair Bolsonaro.

During a meeting of the UNHRC in March, Lula’s case is expected to be analyzed by 18 judges from different nations.

Judge Sergio Moro, who sentenced Lula to prison, was appointed by President-elect Jair Bolsonaro as the future justice minister, raising suspicions about his intentions.

In early February, the Brazilian Workers' Party (PT) convened for demonstrations in Sao Paulo, Porto Alegre, Cuiaba, and other cities across the country to support Lula da Silva, who was condemned by Judge Gabriela Hardt to 12 years and 11 months in prison on no grounds.

Since April, Lula has been a prisoner of the Federal Police in Curitiba, capital of the southern state of Parana for alleged acts of corruption.
Mr. Lula da Silva's Workers' Party also posted a notice of the action Comitê da ONU deve julgar perseguição política a Lula em março (in Portuguese)

Os advogados do ex-presidente Luiz Inácio Lula da Silva entregaram na quinta-feira (21) a última manifestação ao Comitê de Direitos Humanos da ONU.

Nela, Lula afirma que Sergio Moro pôs em dúvida a afirmação do Brasil de que, quando juiz, agiu com isenção, ao aceitar o convite de Jair Bolsonaro para comandar o Ministério da Justiça.

A defesa rebateu alegações do governo brasileiro ao organismo internacional. A peça apresentada ao Comitê pelo governo afirma que o petista pretende “confundir e enganar” o colegiado ao apontar direcionamento da Justiça e diz que a alegação de perseguição política “é uma afronta às instituições”. O texto sustenta que a acusação de parcialidade de Moro é infundada.

O processo agora está pronto para julgamento. A expectativa é a de que o caso seja incluído na pauta do colegiado do mês de março.

Os advogados de Lula também dizem que o ex-presidente foi tratado com “cruel mesquinhez” pelo Estado brasileiro. Eles listaram sentenças que negaram pedidos para ele sair temporariamente da prisão, como para velar o irmão Vavá no fim de janeiro.

Dezoito juízes de diferentes nacionalidades vão analisar o caso.
 What makes this even more interesting may be something perverse--the neo-colonialism inherent in Latin American internationalism to sort the gyrations of internal political contests. To conceive of these efforts in this way, of course, is heresy among some circles.  The question, however, is worth asking, in a context in which states simultaneously seek autonomy for their politics (against outside interventionism) and then welcome such interventions strategically as leverage to manage that very same politics. The same question can be asked (a subject for a later post) about the strategic use of the International Criminal Court  by African elites it he management of the aftermath of elections and the control of losing factions.In this way it appears to widen the gap that divides the way that the major powers order their political models, and the ways that other states conform to transnational models.  Brazil is exemplary in it s willingness to leverage international organizations and international human rights normative standards to discipline the legalities of its internal political order.  In the process it contributes both to the development of liberal democracy, and shifts that development from the great powers to emerging states.  At the same time, this development represents a quite different engagement with concepts of sovereignty and its limits, and the transformation of politics from the expression of popular will, to the management of that will through the mediating structures of human rights. 

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