Analysis: Lula, Moro and Lava Jato, as Brazil’s Supreme Court enters the political thicket

Rio de Janeiro, Brazil – On April 14, Brazil’s Supreme Court (STF), in plenary session, began hearing the appeals from the decision by Justice Edson Fachin that voided the convictions of former president Lula, because Judge Moro’s court in Curitiba did not have jurisdiction to hear the cases.

In that decision, Fachin ordered all the case files sent to a lower court in the Federal District, for that court to review the files and take charge of the cases.

The day after Fachin’s decision, the Second Panel of the STF decided that, in the “triplex” case against ex-President Lula, Judge Moro had acted with bias rather than impartiality, and ordered all material, in that case, to be expunged.

There were two appeals filed at the STF: (1) the Federal Prosecutor General (PGR) sought to reverse Fachin’s decision and reaffirm jurisdiction of the Curitiba court; (2) Lula’s counsel sought to broaden the scope of the STF Second Panel decision to include all cases involving the ex-President heard by Judge Moro.

On April 15, the STF decided only the first of these questions: by an 8-3 vote (Justices Nunes Marques, Marco Aurélio and Luiz Fux dissenting), the majority affirmed Justice Fachin’s decision that Moro’s courthouse in Curitiba did not have jurisdiction to hear any of the four cases involving Lula.

The court, however, put off till its next plenary session, on Thursday, April 22, any decision on two related issues.

The first (and less important) of these questions is whether Fachin was correct in remanding all the cases involving Lula to the court in the Federal District. Justice Alexandre de Moraes opined that the proper forum to hear all four cases was São Paulo; several other Justices gave no opinion as to which court should eventually have jurisdiction.

The more important issue, left for next Thursday’s session, involves the validity and scope of the decision by the STF Second Panel, holding that Judge Moro, in the case involving the “triplex” apartment, had been partial and had collaborated with the prosecutors. This decision declared void all pre-trial and trial procedures conducted by Judge Moro in the “triplex” case.

Put briefly, the STF must now decide whether, after Justice Fachin had declared Moro’s court incompetent in all cases involving Lula – a “monocratic” decision now ratified by the full STF – the Second Panel should have analyzed the question of bias by Judge Moro in one of those cases.

Fachin’s position is that the question of bias is moot (meaning there is no need to decide the question) when the judge had no jurisdiction to hear the case in the first place. In other words, the judge’s lack of jurisdiction nullifies all his decisions, so it does not matter – legally – whether or not he was biased.

No one knows how the STF will decide this issue, but almost everyone expects a divided 6-5 vote.

Those on one side will argue that Fachin’s decision was an artifice, a ploy designed to reach a result that would preserve Lava Jato. Those on the other side will charge the Second Panel with wanting to eviscerate Lava Jato.

Looked at this way, the person the STF will be judging next Thursday is not really former President Luiz Inácio Lula da Silva, but rather former Judge Sergio Fernando Moro.

Those who defend the Judge say they do so not in his own name, but in the name of what he and Lava Jato represent, in particular the fight against corruption. They truly believe these actions are essential to the advance of Brazilian civilization.

The other side point to irregularities in Lava Jato operations, holding that illegalities should not be used to pursue criminals. They truly believe this concept is essential to the advance of Brazilian civilization.

The necessary consequence of this imbroglio is that, just as happened in 2018, the Judiciary has found itself trapped deep inside a thorny political thicket. This Thursday’s STF decision – whichever way it goes – will certainly affect the next presidential elections.

In practical terms, upholding Fachin’s decision will allow the new court judging Lula to convict him once again, which could lead to his being declared ineligible for public office. Upholding the Second Panel’s decision will mean Lula cannot be convicted by the new court.

Source: Migalhas