On December 19th 2018, Brazil was sent into a frenzy at the news that Supreme Court Judge Marco Aurélio had accepted a petition from PCdoB (Communist Party of Brazil) that called for the freeing of prisoners jailed while their appeals processes were still underway. This meant that former President Lula da Silva, recognised internationally as a political prisoner, would need to go free.
Lawyers and legal scholars applauded Marco Aurélio Mello’s judgement “The decision was correct according to the Constitution, the minister did what he was supposed to do, in terms of obeying the Constitution,” said the legal scholar and Constitutional Law Professor Pedro Serrano. The criminal lawyer José Roberto Batocchio, from Lula’s defense team, also praised Mello. “We finally found a Supreme Court Justice who obeys the Constitution,” he said, “unlike the others.”
Justice Aurélio justified the decision based on the need to protect Article 5 of the constitution, which establishes the presumption of innocence for defendant. Lula’s defence team immediately demanded his release, and with his freedom again a possibility, the ongoing vigil outside the Federal Police building where the 73 year old is being held, grew in anticipation of an announcement.
But it was not to come. Supreme Court Justice Dias Toffoli defied the constitution and overruled Marco Aurélio’s earlier decision.
Just hours previously Lula’s lawyer Valeska Martins had given a rare interview in English on the Michael Brooks show in the United States, explaining the lawfare strategies that have been used against Lula, their geopolitical context and implications for Brazil’s sovereignty.
Following Toffoli’s ruling, Lula’s defence responded with a second demand for his release: “Although there has been press coverage that the eminent Minister Dias Toffoli has suspended a preliminary injunction, it should be noted that the wider jurisprudence of the Supreme Court shows that the request for suspension of decisions handed down by the other STF Ministers is manifestly unreasonable.”
The Army High Command had held an emergency meeting that afternoon to discuss the new decision that could see the release of Lula. The Armed forces intervened in a previous Supreme Court ruling to deny the former President habeas corpus. It is yet unclear if the Army meeting influenced Toffoli’s latest move, but he was consulted by President-elect Bolsonaro on the appointment of General Fernando Azevedo as Defence Minister, who had served as an advisor to Toffoli prior to the election. Toffoli has been at the centre of several key decisions including that which saw barred from running, which enabled Bolsonaro’s victory.
Justice Marco Aurélio himself alluded to outside influence in an interview following Toffoli’s decision: “If the Supreme Court was still Supreme, my decision would be fulfilled”. He received death threats after his decision became public, and far-right supporters of military intervention called for the abolition of the Supreme Court itself.
Former Minister of Justice Eugênio Aragão was equally indignant: “Former President Lula has never been treated like any other person. If he were, he would be free today. He was treated as an enemy of the establishment, that allowed Bolsonaro to become president of the Republic” said the former minister.
Parliamentarians protested the decision of judge Carolina Lebbos, of the 12th Federal Court in Curitiba, to not accept Federal Supreme Court Minister Marco Aurélio’s injunction to suspend imprisonment for defendants before their appeals processes are exhausted, which would have allowed former President Lula to walk free. In addition to ignoring the injunction, the judge consulted with the Public Prosecutors office as if it had jurisdiction over the Supreme Court, a clear breach in protocol from the same local judge who has already prevented visiting rights and interviews with the former President.
PSOL Presidential Candidate Guilherme Boulos, a vociferous Lula ally, also reacted on social media: “Minister Marco Aurélio’s decision reinstates what is in the Constitution….In the last hours, the decision being attacked as if it would prevent arrest of murderers and rapists caught in the act. This is a lie. Once again the Constitution is shattered …”
“The Supreme Court of this country, that has become a banana republic, is submitting to conservatives. Minister Marco Aurélio did what he should have done sooner. Dias Toffoli can not dismiss the injunction, this would be further proof of the absence of formal and material democracy in the country” said Alagoan jurist Marcelo Tadeu Lemos, who presided over the ‘Lava Jato People’s Court’.
With each defiance of the constitution it becomes more self evident that former President Lula is being held for political reasons.
It is as if Brazil is being governed by a parallel power, ‘com o supremo, com tudo‘.