Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Mr. Justice Frankfurter, long ago, exhorted his colleagues on the U.S. Supreme Court not to enter the political thicket, on the philosophical grounds that judges were not elected by the people, and should not attempt to impose their will on those who were, save when these worthies exceeded the limits of their mandates. The political thicket then was a dispute between the legislative and the executive branches of the U.S. government.

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

The political thicket the Curmudgeon looks at today involves a dispute between the judicial and the executive branches of government in Brazil, and the judicial and executive branches of Italy, over the question of extradition. In particular, the extraordinary case of Cesare Battisti, whose extradition was refused by then President Lula on December 31st.

Mr. Battisti was convicted in Italy of having committed and masterminded murders. Before serving his sentence, he fled to Mexico and France, was protected for many years, then was unprotected and fled to Brazil. In 2007 he was arrested and held by Brazil after the Italian Government requested his extradition to serve his penalty for the crimes he was convicted of.

In 2009, the Brazilian Minister of Justice, overruling an internal ministry commission, granted him refugee status. The Law on refugees says that there is no appeal from the Minister’s decision. It also says that anyone granted refugee status cannot be extradited.

Italy appealed to the Brazilian Supreme Court (STF) which overruled (by a 5 to 4 vote) the Minister and denied refugee status. The STF then approved the extradition request, but fudged this by saying (by a different 5 to 4 vote) that the President has the last word on extradition. It then said (by yet another 5 to 4 vote) that the President’s discretion is limited by the extradition treaty with Italy.

In its rulings, the STF entered the political thicket. It might have held that “no appeal” means no appeal, even to the judiciary, but it did not. Worse yet, two STF Justices had declared themselves unable to vote, but both of them stated they favored refugee status, so the result would have been 6-5 against extradition.

Why did Lula deny extradition? The official reason, contained in a formal opinion by the AGU (the government’s lawyers) is that there are reasonable grounds to believe that Battisti would be subject to actions of persecution or discrimination by reason of his political opinion, or his social or personal condition would worsen.

The AGU was quick to point out that the persecution would not involve the Italian Government, but rather the media, political parties, and others. The personal condition of Battisti would be made worse, said the AGU, by the mere fact that he would be in jail, rather than being able to rejoin society. Neither of these reasons convinces any thinking person.

What were Lula’s real reasons? Among others: (1) he’s not convinced Battisti committed the crimes he was accused of; (2) he knows Battisti has been a law-abiding citizen in Mexico and France; (3) he knows Italy is not really important to Brazil’s foreign policy or international commerce; (4) he believes the STF should not meddle in affairs that are the exclusive responsibility of the Executive Branch, such as granting refugee status or extradition.

In other words, the STF should have stayed out of the political thicket. The Curmudgeon agrees.

Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, moved here thirty-plus years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)


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