Opinion: Brazil’s Politicized Judiciary

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – The Curmudgeon opined yesterday that STF Justice Teori’s early morning order excluding Eduardo Cunha from his seat in the Chamber of Deputies was “extraordinary”. Later in the day, as expected, the STF unanimously affirmed that absolutely unprecedented and exotic order.

The STF judgment has the same procedural effect as the impeachment of a President, because it makes the defendant step down from the position to which he was elected by the people, until a trial is held. In the case of formal impeachment, there is express constitutional support for this drastic measure; sadly, however, in Cunha’s case, there is no such express support.

In the Curmudgeon’s opinion, the STF was simply wrong. Worse, it has now entered extremely dangerous territory, and gone far beyond its constitutional remit — it has in effect created a law out of whole cloth. The STF has become a political rather than a juridical entity.

In its first decision regarding impeachment, the STF chose to enter the political thicket, when it decided that the Senate could simply disregard the impeachment vote of more than 2/3 of the Chamber—rather, the Senate could itself decide whether to have a trial, by majority vote.

Today, May 6th, the Senate is expected to vote to hold a trial. If, by some chance, a majority of the Senate vote not to have a trial, the impeachment proceedings will come to an abrupt halt, Dilma will remain in office.

The impeachment decision relied only upon a previous decision it had taken in regard to the impeachment of President Collor. The Cunha decision relies upon general constitutional principles of morality and honesty. Those principles, the Curmudgeon submits, are not sufficient grounds for the Judicial branch to remove a member of the Legislative Branch.

The Brazilian Constitution, like the U.S. Constitution, holds that legislative houses are the sole judges of their own members. Even conviction of crimes does not mean that the defendant must step down—only Congress can do that, by determining they have not acted ethically.

The STF has said that its decision is based upon Cunha’s actions to impede the Lava-Jato (Car Wash) investigations. Brazilian criminal law has several preliminary measures to ensure that does not happen, including house arrest. Members of Congress, however, can only be arrested if they are caught in the act committing a crime for which bail is not available.

No crime Cunha has been charged with fits that definition. The STF, therefore, decided to innovate, and remove him from office. The justification is that Cunha would become President if Temer leaves the country or is incapacitated, and that should not happen.

That is a political justification, with no basis in law. It goes beyond the earlier STF decision that Senator Delcídio be imprisoned, because even Senator Delcídio remains Senator until such time as the Senate decides to remove him or not.

Crusading Judge Moro repeatedly crossed the line into the political arena, particularly by publishing the transcript of the conversations between Lula and Dilma. For that misstep, he apologized to the STF.

The Curmudgeon wonders whether the STF will apologize to anyone at all.