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Brazil top court could make ruling that frees Lula

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Brazilian president Michel Temer (L) and the Brazilian Minister of Government Secretariat Carlos Marun are pictured, during the designation ceremony of the new president of the Brazilian National Bank for Economic and Social Development (BNDES) Dyogo Oliveira, in Rio de Janeiro, Brazil on April 09, 2018. / AFP PHOTO / Mauro Pimentel

The dust is just settling after the dramatic jailing of Brazil’s former president Luiz Inacio Lula da Silva, but it could quickly be stirred up again — the nation’s Supreme Court could vote this Wednesday on a legal change potentially letting Lula back out.

Given the traumatic lead-up to Lula’s imprisonment to start his 12-year sentence for corruption on Saturday, it might seem incredible that four days later he could receive a get-out-of-jail card. But it’s a real possibility.

At issue is a fierce judicial debate over when prison sentences must be started.

The current law is that you get locked up right after losing a first appeal, with further appeals conducted from behind bars.

That’s why Lula — convicted last year of taking an apartment as a bribe, then losing his initial appeal in January — was incarcerated in Curitiba, southern Brazil.

But this is a recent rule, adopted only in 2016 by a 6-5 vote at the Supreme Court, and pressure is mounting to have it reversed. That’s why Lula, 72, has a chance of walking free.

In fact, even as Lula and his army of lawyers and street activists fought his arrest, the wily leftist leader was already telling supporters that he hoped he’d be out, “who knows, if God wishes, next week.”

Boosting Lula’s confidence are signs that one of the 11 justices, Rosa Weber, may switch sides, flipping that 6-5 result to allow people to stay out of jail while pursuing higher court appeals — a process that could take years.

But this is Brazil: no one really knows.

The issue may come to a vote, then get postponed, or it may come to a vote and, despite predictions of Weber changing her position, fail to pass. Or, for procedural reasons, it may not even get as far as a vote.

– Supreme mess –
A gigantic corruption crisis over the last four years has destroyed public confidence in many of Brazil’s institutions, especially Congress and the presidency.

Worryingly, the Supreme Court, commonly known here by its acronym STF, is increasingly seen as having been dragged into that same murky political territory. Unlike lower court judges, who are often remarkably independent and tough-minded, the STF justices are political appointees — and, to many, political actors themselves.

Adding to that credibility problem is the court’s habit of making a ruling one day, then contradicting it a short time after, as may happen again now.

After all, just last week, the Supreme Court spent 11 hours debating before denying Lula habeas corpus, or a petition to postpone his sentence. The epic court session allowed top anti-corruption Judge Sergio Moro to issue his arrest warrant, hauling Lula in on Saturday.

Could that same court now rule that Lula doesn’t need to go to prison?

“The impression among the population is that STF decisions are unstable, that they are taken simply in accordance with the preferences of whoever is on the bench,” said Thomaz Pereira, a law professor at the Getulio Vargas Foundation in Rio de Janeiro.

“This is very harmful for its image,” he said.

Daniel Vargas, a public law specialist, said “what’s really at stake is the credibility of the STF and of democracy itself.”

Vargas pointed to the 2016 impeachment of Lula’s ally Dilma Rousseff, removing her from the presidency halfway through her second term, as where the justice system in Brazil really went off the rails.

Rousseff, accused of cooking the budget books, was deposed “without enough evidence to be able to create a national consensus,” Vargas said.

– Anti-graft campaign –
Whatever the Supreme Court decides regarding appeals and the timing of imprisonment, it will have an impact on Brazil’s historic anti-corruption campaign known as “Car Wash.”

The change in law in 2016 gave prosecutors a powerful new tool to pressure corrupt politicians, since they knew they would be in prison as soon as they lost one appeal.

That made them open to negotiating cooperation deals with the government, which in turn helped prosecutors gather evidence on new targets.

Change the law back to allowing freedom during lengthy appeals and suddenly the fear of prison will evaporate.

One Supreme Court justice, Luis Roberto Barroso, recently warned of an “operation to suffocate” the anti-graft campaign, which has scores of politicians in it sights beyond Lula, including sitting President Michel Temer.


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