Brazil’s Major Constitutional Questions Remain in Flux Following Lula’s Release from Prison

Brazil’s Major Constitutional Questions Remain in Flux Following Lula’s Release from Prison

By Ryan Rainey

On Nov. 8, a Brazilian judge ordered the release of former President Luiz Inácio “Lula” da Silva from a federal prison.[1] The order followed a decision from Brazil’s highest court to allow criminal defendants to avoid imprisonment while they await the outcome of their appeals.[2] Lula’s criminal case is still pending, and he could find himself in jail again soon.[3] But his newfound freedom has already allowed him to begin the work of rehabilitating his public profile throughout Brazil in anticipation of a possible presidential candidacy. [4]

Lula’s imprisonment has been a cause célèbre in Latin American political life for the last several years; the criminal investigation against him was derided by left-leaning leaders such as Argentina’s President-elect Alberto Fernandez[5] and the now-deposed ex-President of Bolivia, Evo Morales.[6] Bolsonaro, however, rode to his election on a wave of anti-corruption settlement and drew attention for appointing Sergio Moro, the leader of the investigation that took Lula to prison, as the country’s minister of justice. [7]

Lula’s release and his pending trial come amid a general malaise in Brazil’s criminal justice system, as well as high-profile accusations against Bolsonaro. The incumbent president has been forced to explain his connections to the 2018 murder of Marielle Franco, a high-profile leftist member of Rio de Janeiro’s city council. [8] A report from the country’s most prominent news organization found that the president shared a condominium building with one of the accused killers, and Bolsonaro has attempted to fend off accusations that he was tied to the killing. [9]

The high-stakes battles facing Lula and Bolsonaro come amid general questions about Brazil’s public corruption criminal justice system. The entire Lava Jato investigation has implicated some of Brazil’s highest ranking politicians, and precipitated the impeachment of former President Dilma Rousseff in 2016.[10] Meanwhile, the entire Lava Jato affair, combined with Bolsonaro’s potential legal issues, will likely continue to place further burdens on an already overwhelmed national judicial system. In a five year period, Brazil’s highest court alone received an average of over 67,000 cases annually.[11] The stakes are especially high in a “fragile democracy” like Brazil, where constitutional governance is still developing but courts “are sensitive to private fundamental rights.” [12]

[1] Ernesto Londoño and Letícia Casado, Ex President ‘Lula’ Is Freed From Prison in Brazil After Supreme Court Ruling, The New York Times (Nov. 8, 2019)

[2] Id.

[3] Ricardo Brito, Back to Jail, or Run for President: The Legal Maze Facing Brazil’s Lula, Reuters (Nov. 11, 2019)

[4] Id.

[5] Juan Pablo Spinetto, Argentina President-Elect Calls for Brazil’s Lula to Be Freed, Bloomberg (Oct. 27, 2019)

[6] Shasta Darlington, As ‘Lula’ Sits in Brazil Jail, Party Nominates Him for President, The New York Times (Aug. 5, 2018)

[7] Ernesto Londoño, Bolsonaro’s Cabinet Will Include Brazil Judge Who Convicted Lula, The New York Times (Nov. 1, 2018)

[8] Terrence McCoy, Marina Lopes & Teo Armus, ‘This Will Not Stick’: Brazilian President Lashes Out over Alleged Links to Left-Wing Politician’s Killing, The Washington Post (Oct. 30, 2019)

[9] Id.

[10] Jonathan Watts, Brazil’s Dilma Rousseff Impeached by Senate in Crushing Defeat, The Guardian (Sept. 1, 2016)

[11] Justice Teori Zavascki, Remarks at Wilson Center Brazil Institute’s “Rule of Law” Series (Nov. 7, 2016) (prepared remarks available at

[12] Emilio Peluso Neder Meyer, Judges and Courts Destabilizing Constitutionalism: The Brazilian Judiciary Branch’s Political and Authoritarian Character, 19 German L.J. 727, 728, 760, 768 (“It is no easy task to simply presuppose the existence of a Brazilian constitutionalism. In a country that has had during its existence seven constitutions, one empire, uncountable state of siege declarations, coups d’état, two impeachment processes […] and two transitions to democracy with severe obstacles, considering the incidence of a consolidated constitutional movement can become a difficult endeavor.”)