Marcelo Auler: Will the Supreme Court grant Lula the same necessary rights as LGBT people?

By Marcelo Auler, on your blog and for the Journalists for Democracy

Next Wednesday (February 20th), Minister Celso de Mello will conclude his lengthy – and already considered historic – vote on the necessary criminalization of homophobia and transphobia. The senior member of the Supreme Federal Court (STF), in the first 70 pages of his vote – which, according to his announcement, will be 130 in total – has already made clear the impossibility of the Judiciary legislating. However, he promised a proposal to lead the Legislative branch to draft the necessary legislation and, with that, meet the desire of the LGBT community to, as he said, guarantee them the rights enshrined in the Constitution.

"It is now, more than ever, necessary to proclaim that no one, absolutely no one, can be deprived of rights or suffer any legal restrictions because of their sexual orientation or gender identity. This means that homosexuals and members of the LGBT community also have the right to receive equal protection under the law, equal protection under the political and legal system established by the Constitution of the Republic."

The part of the vote already revealed is a true manifesto in defense of the Citizen Constitution of 1988. From what she read, she made clear the need for respect for the Magna Carta by all. Including the Legislative branch, regarding its obligation to create the legal texts foreseen therein, such as the law criminalizing attacks against the LGBT population. (...)

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Now the Supreme Court – if Toffoli's announcement prevails – will face a dilemma. While demanding that the Legislature fulfill its constitutional obligation to legislate on crimes that terrorize and victimize the LGBT community, it will also have to confront, in April, once again the debate about the presumption of innocence.

Will the ministers have the courage to uphold what the 1988 Constituent Assembly, led by Ulisses Guimarães, decided and wrote in a clear and unambiguous way? Or will they continue to yield to the so-called popular pressure, which, behind a supposed banner of combating impunity, actually seeks to prevent the release of former President Lula?

Will they decide to respect the Constitution as it was written, or will they seek a shortcut, already announced by Dias Toffoli, that the presumption of innocence is valid until the appeal is judged by the Superior Court of Justice (STJ)? Many currently believe that when the Supreme Court discusses the issue again, the STJ will have already rushed to confirm Lula's conviction, creating a new obstacle to his freedom. We shall see.

Read the full text at Marcelo Auler's Blog. 

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