Opinion: Brazil on Tenterhooks, Part III

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – [Previously on ‘Brazil on Tenterhooks’: “over the weekend, former President Lula is still in limbo and we the people are still on tenterhooks.”] The weekend has ended, Holy Week has begun, but the tenterhooks are still holding both Lula and most people in suspense.

The reason for all this uncertainty is Holy Week. There’s a statute providing that all sessions of the full STF are suspended during the week leading up to Easter.

As our readers know, last week STF Justice Mendes said “Halt!” to Lula’s appointment, finding violations of constitutional tenets applicable to ministerial appointments; this means Lula is not yet a Minister. Moreover, Justice Mendes ordered the files on the proceedings against Lula sent back to lower court Judge Sergio Moro.

Government attorneys have contested both decisions, seeking a habeas corpus against the return to Judge Moro, and an injunction that would overturn Justice Mendes’s decision and reinstate Lula as Minister.

The habeas corpus suit was assigned to Justice Rosa Weber. Ironically, in one of the released tapes, Lula asked Chief of Staff Jacques Wagner to ask Dilma to plead his case to Justice Rosa, since in Lula’s view male STF Justices didn’t have sufficient cojones.

The injunction suit was first assigned (by lot) to Justice Fachin, but in yet another bizarre twist, he has recused himself because he knows many of the plaintiffs personally and professionally – it seems the complaint was signed not only by Solicitor General Cardozo, but also by a number of prominent São Paulo “jurists” (a fancy word for lawyers who’ve become rich and famous). It was reassigned to Justice Fux, who threw out the suit on jurisdictional grounds.

The problem for the government attorneys is that very recently, the STF held that an order by one Justice can only be overturned or suspended by injunction or by habeas corpus when the full court hears the case — and the full court is now officially in recess.

Given that the STF holds its full sessions only on Wednesdays, March 30th is the first day the suit could be heard; for this to happen, Justice Mendes must forward it to the Presiding Justice so it can be included in the official docket of cases to be heard; so far, Justice Mendes shows no signs of wanting to do that. Thus, the tenterhooks may even last another week, until Wednesday, April 6th.

The widespread fear among Lula’s lawyers is that, between now and the date the STF hears their pleas en banc, crusading Judge Moro will order Lula’s indictment and imprisonment — after all, Lula is (still) not a Minister.

If Lula is formally indicted before becoming Dilma’s Chief of Staff, he loses his right to have the accusations against him judged by the STF, and will have to face Judge Moro. That’s his worst nightmare. Dilma’s worst nightmare is having to govern without Lula by her side.

The Curmudgeon will not predict what will happen today or tomorrow, on biblical grounds: sufficient unto the day is the evil thereof.