Supreme Court justice’s decisions intend to hurt Lula in the elections, jurists say

Full court now has to rule on ex-president’s appeal; justice included an election-related subject to the records

São Paulo |
Brazil’s Supreme Court Justice Edson Fachin
Brazil’s Supreme Court Justice Edson Fachin - Handout

After a new decision by justice Edson Fachin on Monday, a full bench of Brazil’s Supreme Court will have to rule on an appeal filed by ex-president Luiz Inácio Lula da Silva's defense team to suspend his 12-year prison sentence.

Lula’s defense attorneys had filed an appeal to suspend the execution of a prison sentence ordered by judge Sérgio Moro and upheld by a regional appeals court, the TRF4. A Supreme Court panel of five justices, who sit to review matters that do not impact the interpretation of the Constitution, was scheduled to rule on the case on Tuesday, but justice Fachin withdrew the case from the top court’s agenda last Friday, arguing the TRF4 had not submitted the appeal to the court.

Now, Fachin decided the full court will have to rule on the case.

Legal experts see this new development in the former Brazilian president’s case as a strategy by the top court justice to prevent Lula from being elected president in the country’s upcoming election in October.

Marco Aurélio de Carvalho is a member of the Brazilian Association of Jurists for Democracy and one of the 271 jurists who signed a manifesto for the “Defense and Presumption of Innocence of Lula and Against Actions that Hurt the Constitution” this week. He believes moving the case to the full court was a political decision by justice Fachin.

“There is definitely an undeniable judicial activism, a manipulation orchestrated by the court system,” he says.

“Fachin had the dissenting opinion on the panel that would originally rule on Lula’s appeal. So, to get the outcome he wanted – to remove the ex-president from the electoral process and keep him in prison –, the justice decided the full bench has to rule on the case. In my absolutely personal opinion, this was a problematic, unusual move,” he said.

Meanwhile, sitting on a Supreme Court panel, justices Dias Toffoli, Gilmar Mendes, and Ricardo Lewandowski decided last Tuesday to grant a preliminary injunction to release Lula’s former chief of staff José Dirceu, sentenced to 30 years in prison. The panel’s decision questions the execution of a sentence while it is still pending appeal, which is the same argument used by Lula’s defense.

According to lawyer Raimundo Bonfim, a coordinator of the People’s Movement Center and member of the People’s Brazil Front, if it weren’t for Fachin’s decision, “Lula would have very likely be granted release” on Tuesday.

Right to run

In his order on Monday, Fachin said the case should be ruled by the full bench because it involves a debate about the admissibility of extraordinary appeals. The justice also added a review on a law regarding elegibility requirements to run for political office, arguing it is up to the panel to rule on this type of injunction petition.

However, Bonfim points out that the top court should not rule on Lula's eligibility to run for office right now as justices are going to vote on the ex-president’s appeal.

“Fachin is including an accessory that has nothing to do with Lula’s appeal. Lula’s defense did not ask [the court to rule on this]. Now they will rule on a criminal and electoral matter at the same time,” he said.

Marco Aurélio de Carvalho says the two arguments are “absolutely different” and should be reviewed separately.

He argues that the fact that Fachin included this argument about Lula running for office conveys, to professionals in Law, the idea that he wants to keep Brazil’s ex-president in prison. “And if he can’t, he wants to bring forward the discussion about his eligibility. In ordinary circumstances, it would be up to the Superior Electoral Court to rule on this,” Carvalho said.

Despite being convicted and sentenced to prison, Lula remains at top of polls for Brazil’s upcoming elections. A recent poll shows the Workers’ Party leader has 44 to 45 per cent of voting intention.

The ruling on Lula’s appeal is likely to be scheduled for early August, as the Supreme Court will go into recess in July. This means the country’s top court is probably ruling on the case only a few days before the deadline to register the ex-president as a candidate, on August 15th.

Lula’s defense lawyers said they are discussing the best course of action to face Fachin’s decision. Justice Edson Fachin’s office hasn’t responded inmediately to Brasil de Fato’s request for comment.

Edited by: Diego Sartorato | Translated by Aline Scátola