Opinion: The Other Rose Among Brazil’s Thorns

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – The Curmudgeon, having paused for refreshment, will now deliver on his promise, contained at the end of his last post, to salute the other “Rose among thorns”, STF Presiding Justice Cármen Lúcia Antunes Rocha.

Those who followed closely the courtroom haggling leading up to former President Lula’s unsuccessful attempt to escape prison, will recall that Cármen Lúcia (as she is uniformly known) made sure she scheduled the decision dealing only with Lula before scheduling decisions on two other, more general, cases that had come to the STF.

Both of those cases would decide, directly, the scope of the constitutional provision on the presumption of innocence, and the decision would be applicable to ALL pending cases, not just to Lula.

Cármen Lúcia knew well that fellow STF Justice Rosa Maria Weber was a stout supporter of the position that the STF should not overturn recent decisions, simply because of a change in membership or a change in the vote of an existing member.

So stout a defender of the principle of stare decisis is Justice Rosa, that she feels constrained to support the prior decision in related cases, even though her own vote did not prevail in the prior decision.

When other, more general cases arise, where the question is to be decided a priori, it is highly likely that Justice Rosa will, once again, vote to interpret the Constitutional provision as prohibiting any imprisonment until the judgement has become final. In such case, there will be a 6-5 majority in favor of overturning the 2016 decision.

Cármen Lúcia has long been determined not to permit that to happen while she is still Presiding Justice, so she has steadfastly refused calls from other Justices to put the more general case on the STF docket.

The position of Presiding Justice of the STF has a duration of only two years. After this period expires, the Justice with the most seniority assumes that position and the former Presiding Justice becomes simply a Justice.

In September 2018, Justice José Antonio Dias Toffoli, appointed to the STF by Lula in 2009, will inherit the mantle and the prerogatives of the Presiding Justice.

There is little doubt among STF followers that Toffoli’s very first action as Presiding Justice will be to revisit the question of the presumption of innocence, and schedule a plenary session to hear one of the more general cases Cármen Lúcia had avoided deciding.

Before his appointment to the STF, Toffoli’s chief distinction was that he was a lawyer for Lula’s governing party PT. During the Mensalão cases, Justice Toffoli slavishly adhered to a position that would have given all the PT defendants “get out of jail free” cards.

As Presiding Justice, Toffoli will have the opportunity to see his position vindicated, and to spring former President Lula and all his co-conspirators from the calaboose. This is likely to happen just before the Brazilian Presidential election, and it will be a black day in Brazilian history.

So, while we still have three or four more months left under Presiding Justice Cármen Lúcia, the Curmudgeon salutes her courage as a leader.