Can Congress send Lula back to prison?

and . Nov 17, 2019
lula congress Lula. Photo: Ricardo Stuckert

Earlier this month, Brazil’s Supreme Court concluded a trial on the possibility of executing prison sentences after a single appeal. The vote came right down to the wire, with Chief Justice Dias Toffoli settling the ruling at a 6-to-5 majority, establishing that defendants may only go to jail after exhausting all of their appeals routes.

</p> <p>This represented a change to the court&#8217;s precedents and allowed the release of several thousands of felons still awaiting high court appeals—among them <a href="">former President Luiz Inácio Lula da Silva</a>, who remains the most divisive figure in modern-day Brazilian politics.</p> <p>The political furor was such that as soon as the <a href="">outcome</a> of the Supreme Court trial became clear, members of Brazil&#8217;s Congress went about debating a constitutional amendment to legislate for the possibility of allowing defendants to go to jail after a single failed appeal. However, there is much doubt about whether such a change is even possible.</p> <p>In Article 5, Item 57 of the Brazilian Constitution, it says that &#8220;no one shall be considered guilty before the issuing of a final and unappealable penal sentence.&#8221; And as this is regarded as an &#8220;entrenched clause&#8221; in the Constitution, jurists are split over whether it could be amended, or if only a <a href="">new constituent assembly</a> would have the power to alter this article.</p> <script src="" type="text/javascript" charset="utf-8"></script> <hr class="wp-block-separator"/> <h2>The nitty-gritty</h2> <p>There are two arguments at play in this discussion. The first quotes legal precedents that allow changes to these so-called &#8220;entrenched clauses&#8221; providing the alteration does not modify the core of the provision. On the opposite side, the claim is that Item 57 is a civil right, which cannot be abolished. Both lines of reasoning involve some in-depth analysis and interpretation of constitutional law.</p> <p>With regard to the possibility to change an entrenched clause providing the &#8220;core&#8221; of the article is maintained, some legal scholars say that the &#8220;issuing of a final and unappealable penal sentence&#8221; is a deadline, and not the core of the provision, as it must be interpreted along with other parts of the Constitution.</p> <p>Constitutional lawyer Vera Chemim explains that the presumption of innocence has limits which are implicit in the Constitution. She says that the right exists if the defendant is guaranteed a fair trial, adversary proceedings, and the opportunity to be heard.</p> <p>“The problem of the Brazilian Constitution is that the rights are explicit and the duties are implicit. It is not evident in the Constitution, but Items 54, 55 and 61 of Article 5 limit the right to the presumption of innocence,&#8221; she told <strong>The Brazilian Report</strong>.</p> <p>Ms. Chemim says that legal scholars only accept the restriction of fundamental rights when there is a problem involving the welfare of the population. This &#8220;principle of proportionality,&#8221; she says, allows the law to adapt to the changes of society.</p> <p>Eduardo Mendonça, also a constitutional lawyer, explains that the presumption of innocence is a duty of the state, &#8220;but this doesn&#8217;t mean that establishing it until a final and unappealable penal sentence is the only way possible.&#8221; He also adds that preventing politicians from analyzing the issue would be an infringement on the deliberative power of Congress.</p> <p>Supreme Court Justice Gilmar Mendes, who famously altered his stance on the question of prison after a single failed appeal and turned the trial on its head, agrees. Speaking to <strong>The Brazilian Report</strong>, he recalled that debates on when prison sentences may be enforced have already been held in Congress. &#8220;[Former Chief Justice Cezar] Peluso even submitted his own proposal to amend the Constitution, but it never went to a vote. It&#8217;s a matter that comes back now and again.&#8221;</p> <p>&#8220;Congress has to debate this matter, but of course, [the current discussion] has public pressure put on top of it,&#8221; he remarked.</p> <h2>Could Congress draft a new constitution?</h2> <p>On the other hand, there are some legal scholars who see the debate as a violation of the <a href="">Constitution</a> itself. Criminal lawyer José Roberto Batochio, a former defense attorney of ex-President Lula, argues that the only way to make this change would be by ripping up the current Constitution and calling for a new constituent assembly. He called the proposal &#8220;legal heresy.&#8221;</p> <p>However, while the prospect of a new Brazilian Constitution seems unrealistic and far from materializing, the subject was brought up by Senate President Davi Alcolumbre on Tuesday morning. He suggested that he would discuss the prospect of calling a new constituent assembly with Senate leaders.</p> <p>&#8220;Then we would all abdicate from our offices and make a new [Constitution]. I&#8217;m up for it, if it&#8217;s for the good of Brazil,&#8221; he said, in what was initially perceived as sarcasm. However, when questioned about his tone, Mr. Alcolumbre confirmed that he was being sincere and intends to revisit the debate. &#8220;Talking never hurt anyone,&#8221; he added.

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Brenno Grillo

Brenno has worked as a journalist since 2012, specializing in coverage related to law and the justice system. He has worked for O Estado de S. Paulo, Portal Brasil, ConJur, and has experience in political campaigns.

Euan Marshall

Originally from Scotland, Euan Marshall is a journalist who ditched his kilt and bagpipes for a caipirinha and a football in 2011, when he traded Glasgow for São Paulo. Specializing in Brazilian soccer, politics and the connection between the two, he authored a comprehensive history of Brazilian soccer entitled “A to Zico: An Alphabet of Brazilian Football.”

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