On the fiftieth anniversary of Dr. Martin Luther King's assassination, one of the key leaders of the Civil Rights Movement in the United States in the 1960s, in Habeas Corpus No. 152.752 (HC 152.752), Luiz Inácio Lula da Silva vs. Superior Court of Justice, after more than 10-hours deliberation, the Supremo Tribunal Federal (Brazilian Federal Supreme Court), through the 6-to-5 majority opinion held a legal construction that the prison after an appeals court verdict does not infringe the constitutional principle of presumption of innocence, and the automatic prison (not jail) is legitimate.
It all started on February 17, 2016, at the height of the Operação Lava-Jato (Operation Car Wash), when the Supreme Court in the judgment of Habeas Corpus No. 126.292 changed the understanding of the constitutional principle, under which the defendant now could be sent to prison after an unsuccessful first appeal. According to the new legal construction, the principle of the presumption of innocence, provided in the fifth article, LVII, of the Brazilian Constitution (Constituição da República Federativa do Brasil de 1988) does not prohibit the early enforcement of the criminal condemnation by the appellate court, prior to the force of res judicata, i.e. allowing the prison before the final appeal had been exhausted.
After that new majority understanding of the constitutional rule of the state of innocence, in May 2016, the National Ecologic Party (PEN) and the Federal Board of the Brazilian Bar Association (OAB) filed a Motion for Declaratory Judgment on Constitutionality, ADC 43 and ADC 44 respectively, requiring the constitutionality conformation of article 283 of the Code of Criminal Procedure, which states that defendants may be not arrested (jailed) except in case of flagrante delito or other kinds of preventive custody, but the prison because of a condemnation only after the final (extraordinary) appeal. To sum up, then, the new ambiguous legal construction of the presumption of innocence by the Supreme Court frontally contrast with the literalness of many of criminal norms. Although the preliminary injunction was rejected, the two actions still remain to be judged.
You would think that Lula's habeas corpus petition was included in the trial docket, even before the ADC 43 and 44, because it was more urgent to safeguard the defendant’s civil liberty. One of the principal problems of the new legal construction of the Supreme Court started in 2016. As the Justice Marco Aurélio puts it, reacting after the Justice Rosa Weber vote, and defining the majority, "let the record reflect. Strategy wins." In other words, when the Chief Justice Cármen Lúcia decided not to analyze these ADCs before Lula’s habeas corpus petition, she apparently transforms the adjudication in a question of playing the odds or, classified after that by the Justice Gilmar Mendes, as a "non-decision", where the number of the affirmative votes is all that counts. After all, it was a general case of constitutional interpretation. In other words, the issue was whether the way the principle of presumption of innocence was/is interpreted enables or not the (un)lawful of the literal meaning of criminal infra constitutional norms.
A second problem to be pointed out is that the majority of arguments favorable to prison after the conviction in the appeal court are primarily based on extra-legal issues. In his vote, the Justice Barroso claims different things to justify the prison. First, he says the (automatic) prison after an appeals court verdict may serve as a motivation factor to county and district judges do not put so many people behind bars in the future (see HC 126.292 and HC 152.752). Then he makes the point that only poor people are imprisoned. Furthermore, he argues that the Court's decision must represent an echo of the vox populi.
We already know that Brazil faces a major problem of prison overcrowding, with more than 600,000 incarcerated people in state prisons, where there is no more space for less than 400,000. But by focusing on prison, the argument overlooks the deeper problem of incarceration, throwing the baby out with the bath water. To combat the issue, it advocates a kind of new version of Law and Order populist answer that try to put more people behind bars, disregarding the contra-majoritarian function of the Court, and the legal duty to judge according to the Constitution and the laws. Prison for all instead!
On the other hand, Lula's prison does not solve the interpretation issue of the meaning of the principle of presumption of innocence. And though I concede that American Jurisprudence has increasingly influenced the Brazilian legal system and many aspects of the Brazilian legal doctrine has changed dramatically. I still insist that the central part of the Constitutional Theory and the whole Brazilian system is still based on the Civil Law System where the codified statutes predominate, and the content of the legal text plays an important role on the legal interpretation and process.
Perhaps, as American Justice Posner remarks, the text of Constitutional norms are not important to decide a case and create the meaning of the Constitution. But then, if this is the new methodology (and ideology) of the majority of the Brazilian Supreme Court Justices, the new rules created by the judges must make sense and not tolerate the coexistence of those infra constitutional norms that seems and sounds unconstitutional according to the new inventive comprehension. However, if the article 283 of the Penal Procedure Code is in accordance with the Constitution, then, the new given meaning of the principle of presumption of innocence conceals something obscure.
Surrounded by this land of uncertainty, perhaps the constitutional principle was just a diversion to elude well-meaning people about the real intention and secure as soon as possible the prison of Lula and prevent him standing for election. I particularly want to believe that is not the case, but there are more things in heaven and earth than are dreamt of in my philosophy. And we still remain confused who is the safeguard of the Constitution and who is the owner.
