Opinion: Brazil’s Unique “Presumption of Innocence” Part III

Opinion by Michael Royster

RIO DE JANEIRO – Previous segments of this abstruse essay have dealt with the unusual nature of Brazil’s constitutional provision on presumption of innocence, and history of the decisions by STF, Brazil’s Supreme Court. Today’s essay will deal with the political reality staring Brazil in the face.

Brazil’s best-known political reality is that crusading Judge Moro convicted former President Lula of corruption, and a three-judge panel of the TRT upheld the conviction. Under current STF case law, Lula would soon (perhaps next week) begin serving his sentence in prison, while filing his further appeals.

That presents a political problem of truly gigantic proportions, because Lula is openly running for President; worse yet, according to all polls, he is the front-runner by a very large margin over other candidates. You cannot conduct a presidential campaign if you are in jail, so Lula’s supporters are clamoring for the STF to keep him out of jail.

There are several cases now pending at the STF that would afford an opportunity for the full eleven-Justice STF to make a final determination about the presumption of innocence, applicable to all future cases. The political reality of any decision by the STF, however, is that any vote will inevitably be seen as a political vote—for or against Lula’s candidacy—rather than a vote interpreting the Constitution.

Yesterday, STF Presiding Justice Carmen Lúcia made that very clear. She had long resisted scheduling any of these cases for a full court decision, for several reasons. But yesterday, in an astonishing turnabout, she scheduled for today, March 22nd, a full court hearing on a habeas corpus motion filed by Lula’s lawyers.

The other pending cases did not specifically involve Lula, but were generic suits seeking to impose an across-the-board ruling on the question of the presumption of innocence.

Cármen Lúcia’s snap decision means that each of the eleven Justices will now have to decide whether they wish to keep Lula out of jail indefinitely — or not.

For almost all Justices, the answer is clear. Justices Toffoli and Lewandowski have always protected Lula. Justice Gilmar Mendes, who was part of the 6-5 majority, has loudly proclaimed his change of heart. Two other Justices scrupulously hew to the plain language of the Constitutional provision — no one is guilty until the judgment is final.

That makes five sure votes in favor of Lula. But another five Justices, including Cármen Lúcia, continue to support maintaining the 6-5 decision.

Only one Justice, Rosa Maria Weber, has kept radio silence on the question. No one is quite sure how she will vote.

There is a possibility that nothing will happen in today’s STF session. If any Justice desires to avoid a decision, they need only request a stay in order to review the record before them. STF practice is to defer to such requests.

Meanwhile, the 4th federal appeals court (TRF) has scheduled a decision on Lula’s appeal for this Monday, March 26th. Everyone believes the appeal will be denied; if so, Lula will be ordered to begin serving his sentence.

Unless, of course, the STF gives Lula a “get out of jail free” card today.