Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Wednesday, December 19th, was the date of the last plenary session of STF – Brazil’s Federal Supreme Court – in 2018. Court watchers all expected a tranquil afternoon: with no meaty cases to be heard, the Presiding Justice’s annual report would be read out and politely applauded.

Michael Royster, aka The Curmudgeon.
Michael Royster, aka The Curmudgeon.

The report of the gavel closing the session before the recess until February caused an adverse reaction in STF Justice Marco Aurélio Mello. Acting alone, he issued a decision, in a case brought by the leftist party PCdoB to benefit Lula, declaring that Article 283 of the Criminal Procedure Code was in consonance with Article 5-LVII of the Constitution. Both provisions state “no one shall be deemed guilty until a criminal conviction has become final.

The question of jail for criminals whose convictions were affirmed by an appellate court, but who are appealing that decision, has long vexed the STF. In a series of four decisions since 2016, the full court has adhered to a collective determination that appellate courts can order convicted criminal to begin serving their sentence while appealing.

Last week, Justice Toffoli announced that the STF would hear cases questioning that position on April 10, 2019. Justice Marco Aurélio’s “preliminary” decision explicitly stated that (a) he disagreed with those prior decisions because the plain language of the Constitution is clear; and (b) he was tired of waiting for the full court to hear cases he had submitted to it back in 2017 that would have decided the question.

Therefore, he ordered the immediate release of any convicted prisoners who were still appealing their convictions to higher courts.

The best-known criminal in Brazil is former President Lula, whose conviction of corruption was upheld by an appellate court, but who is continuing his appeals to superior courts. Other prominent corrupt politicians now in custody joined him in interpreting Marco Aurélio’s order to mean their immediate release.

Brazil’s leftists rejoiced (“Lula Livre!”); the rightists reacted with horror, calling for Marco Aurélio’s crucifixion (okay, just his impeachment). The social and traditional media firestorm only subsided after Presiding Justice Toffoli “suspended” his colleague’s order.

The STF is fractured in any number of legal areas, but the one that has shown the fatal flaw in its structure is that of the presumption of innocence. Theoretically speaking, if you are presumed innocent until all your appeals have been exhausted, you should not be in jail. Practically speaking, however, if you have enough money to appeal, you will never go to jail because of Brazil’s rules on statutes of limitations.

The fatal fracture in the STF (and, indeed, in all of Brazil’s legal system) is the absence of “stare decisis”: individual judges do not feel bound by prior court decisions with which they disagree, and neither honor nor respect them. At the STF level, individual Justices still routinely issue writs of habeas corpus to release criminals from jail, notwithstanding prior decisions by the full STF that would prevent such writs.

In a truly “constitutional” supreme court, no single Justice could ever make orders or decisions on an individual basis – only the full court, acting as a collective deliberative body, can decide what the law of the land is. The STF has been torn asunder by individual decisions.


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