Opinion: Can Chief Justice Toffoli Avert a Brazilian Institutional Crisis?

RIO DE JANEIRO, BRAZIL –  Last week’s decisions by Brazil’s Supreme Court STF, which adhered to the literal language of the Constitution, thus barring imprisonment until a final court decision, has created an uproar throughout Brazil, with people outraged by what they see as a return of impunity.

Both houses of Brazil’s National Congress, given the overwhelmingly negative reaction of their constituent to the decisions, are seeking legislative ways to overturn them. Defenders of the decision argue that Congress cannot amend the Constitution’s Article 5-LVII, a “bedrock clause” guaranteeing individual freedom.

If we take a step back from the brink of the abyss, however, we will note that the decisions did NOT address the question of whether Art. 5-LVII could be amended—that question was not before the Court.

Specifically, the cases sought rulings declaring that Article 283 of Brazil’s Criminal Procedure Code (CPP) – which bars imprisonment until judgments are final – was constitutional and binding upon all courts and judges.

Six of the eleven STF Justices agreed, declaring Article 283 not only constitutional but also directly applicable to some 5,000 cases where defendants were imprisoned pending appeals to the STJ and STF.

Game over? Impunity rules? “Get out of jail free” cards for crooked politicians? The blogosphere baying for the impeachment and forcible removal of STF Justices?

In other words, a full-blown institutional crisis?

Maybe not just yet. After all, in Brazil, there is always a “jeitinho” (a way) , and some “jeitinhos” are legitimate.

Presiding Justice Toffoli, while casting the decisive vote, included an unexpected but potentially crucial “obiter dictum” observation in his opinion, hinting at a “jeitinho” solution.

He emphasized that the cases declared constitutional a specific statute, but … Congress is free to amend the statute because (in his opinion) the question of when to begin serving jail sentences is NOT identical to the question of guilt or presumed innocence.

What Justice Toffoli has implied is that, in theory, if Congress amended Article 283 to permit imprisonment before all appeals were exhausted, he, in theory, could agree it was constitutional.

His (theoretical) vote would create a 6-5 majority in favor of a determination that imprisonment based on the presumption of innocence cannot survive successive court decisions of actual guilt.

Theory is theory, and practice is practice.

In practice, constitutional courts prefer to resolve a case or controversy by interpreting a statute, before reaching any constitutional questions: in other words, statutory interpretation takes precedence.

Can it be that Chief Justice Toffoli, the head of Brazil’s Judicial branch, has found a practical, perfectly legitimate “jeitinho” – statutory interpretation – to promote harmony among the Judicial, Executive and Legislative branches?

Will Congress follow the path Toffoli seems to be offering, and amend CPP Article 283? If so, will Toffoli’s fellow STF Justices agree with his analysis? Or, will Congress go its own way and attempt to amend the Constitution to permit imprisonment before final judgments?

There’s all to play for here, as Justice Toffoli well knows.