Opinion: Brazil’s Rose Among Thorny Ministers

Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – As the Curmudgeon writes this, it is less than a day since the STF decided, 6-5, to deny a motion for habeas corpus filed by former President Lula, which would have prevented him from beginning to serve his sentence after his conviction was affirmed by the TRF.

STF Presiding Justice Cármen Lúcia, maintaining her position that the constitutional presumption of innocence does not prohibit the incarceration of convicted criminals once the initial sentence has been affirmed, cast the final vote.

Hers was not truly the deciding vote, however; that honor belongs to Justice Rosa Maria Weber, almost universally known as “Rosa”. The decisive nature of her vote is because those of the other ten Justices were well known in advance — five on each side of the thorny question of the scope of the constitutional provision on the presumption of non-culpability.

In the 2016 STF decision that overturned a 2009 decision, Rosa was one of the five dissenting Justices. She voted then, and has said she would vote now in a different setting, that the literal language of Art. 5-LVII of the constitution prohibits incarceration of defendants who have not exhausted their appeals.

Unlike many of her STF colleagues, who brazenly crave media attention, Rosa is discreet. She does not grant interviews; she does not appear in politicized symposia; she does not write polemic op-ed pieces. She speaks only “on the record” — meaning her recorded votes in actual cases.

Moreover, and again, unlike many of her colleagues, she is a firm believer in the principle of “stare decisis”: the doctrine of precedence so dear to the common law system of justice. Briefly put, courts and judges should bow to precedent when an issue has previously been brought to the court and a ruling issued.

Since the landmark 2016 STF case, Rosa has decided dozens of habeas corpus motions from convicted criminals seeking to avoid prison; in all but one, she has refused to grant relief. Her decisions explain that she feels bound by the precedent of the full STF decision, even though she disagreed with it. To her mind, once the full court has decided a question, individual Justices should not grant relief prohibited by that decision.

Therefore, Rosa once again voted to deny a convicted criminal (in this case Lula) the relief he sought — a “get out of jail free” card —even though she believes defendants in his situation should benefit from constitutional protection.

Several of her STF colleagues, who argue that stare decisis should not prevail over individual liberties, have publicly criticized her vote. But the Rose remains strong among all the togaed Thorns.

The Curmudgeon salutes Justice Rosa, for maintaining her integrity and her judicial principles in the face of enormous political and judicial pressure. In a future post, he will salute the only other woman Justice, Cármen Lúcia.