In Compromise, Brazil’s Supreme Court Allows Senate Leader to Stay

http://www.nytimes.com/2016/12/07/world/americas/brazil-senate-renan-calheiros.html

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RIO DE JANEIRO — Brazil’s Supreme Court on Wednesday ended, at least for now, a tense standoff between the country’s judiciary and Congress when it overturned an injunction by one of its justices to remove the president of the Senate.

At the same time, the court ruled that the Senate president, Renan Calheiros, could no longer be in the line of succession to the presidency because he was a defendant in a criminal case.

Mr. Calheiros had refused to step down, provoking fears of a constitutional crisis as members of Congress, feeling themselves under siege by a series of sweeping corruption investigations, have sought to restrict the powers of prosecutors and judges. The ruling on Wednesday was seen as a compromise to prevent Mr. Calheiros from being in line for the presidency but not to oust him.

The full court was forced to deliberate after the justice, Marco Aurélio Mello, on Monday issued the injunction, which would have forced Mr. Calheiros to step down as president of the Senate but would have allowed him to keep his Senate seat.

Brazil has not had a vice president since President Dilma Rousseff was removed from office earlier this year and was succeeded by her vice president, Michel Temer. So after the speaker of the house, the head of the Senate would normally be second in the presidential line of succession.

Mr. Mello’s justification for the injunction was that Mr. Calheiros was about to stand trial in a graft case in which a lobbyist paid for the child support of a daughter Mr. Calheiros, 61, fathered in an extramarital affair.

In the full court’s 6-to-3 decision on Wednesday, the majority said that removing the powerful Mr. Calheiros from his position was an excessive measure and sought to find a compromise measure. They ruled that while he could remain as head of the Senate, he could not be acting president.

Yet their legal justification for the decision seemed unclear and was a source of some confusion. It also appeared to some observers that the ruling had more to do with Mr. Calheiros’ defiance than robust legal grounds.

On one hand legal scholars considered the high court’s compromise to be a sensible decision, given the circumstances.

“It is not reasonable to have a politician who has been criminally indicted in the line of presidential succession,” said Matthew Taylor, a scholar who specializes in Brazil’s legal system at American University in Washington.

Yet the way the decision came about and Mr. Mello’s injunction, seen as a gamble, were considered potentially harmful to how the court is perceived.

The court “has been forced to hurriedly move to a plenary decision that looks likely to be a remarkably creative piece of judicial legerdemain,” Mr. Taylor said.

Mr. Mello, who voted in the minority on Wednesday, criticized the majority decision saying they “were rewriting the Constitution to the benefit of one particular criminal defendant.”