MercoPress. South Atlantic News Agency

Lula has to remain in jail while Justices decide on procedural controversy

Justice Marco Aurelio Mello went against a 2016 decision by the full court to say all nonviolent prisoners who had lost an initial appeal could be provisionally freed

Brazil's former president Lula da Silva remained in prison on Wednesday as two Supreme Court judges issued competing orders over whether he should be released while he tries to get his graft conviction overturned.

Lula, 73, was given unexpected hope earlier in the day when one of the judges, Marco Aurelio Mello, went against a 2016 decision by the full Supreme Court to say all nonviolent prisoners who had lost an initial appeal could be provisionally freed to challenge their convictions.

That would have included Lula, who lost a first appeal and since April has been serving a 12-year sentence for accepting a bribe from a big Brazilian construction company in the form of a seaside apartment. But hours later, as Lula's lawyers scrambled to have the bombshell order applied for their client, the chief justice of the supreme court, Jose Antonio Dias Toffoli, suspended Mello's order.

While that keeps Lula behind bars, it was not clear if the judicial tussle would end there. Mello argued that his order could only be overturned by the full, 11-judge court, which had already scheduled an April 10, 2019 hearing to re-examine its 2016 ruling.

But Dias Toffoli's decision backed the public prosecutor's office, which argued that Mello's order was invalid unless endorsed by the full court and published in the electronic version of the official judicial journal. The wrangling is sure to sow confusion just before Brazil's next president, Jair Bolsonaro, takes power on January 1.

Lula's imprisonment prevented him from contesting October elections that were won by Bolsonaro, who lambasted the former leader and repeatedly tied Lula's Workers Party to corruption. Lula, who ruled from 2003-2010, has said from his cell that he would have easily triumphed in that election -- something borne out by voter surveys that showed the ex-president remained broadly popular with Brazilians despite his conviction. Up to now, the country's courts had rejected multiple efforts by Lula's lawyers to secure the ex-leader's release.

According to the state news agency Agencia Brasil, up to 169,000 prisoners in Brazil could have been released under Mello's order. A prosecutor who was key in sending Lula da Silva to prison, Deltan Dallagnol, told reporters before the suspension that he believed Mello's decision was “completely wrong” and would be reversed.

Lula, who is being held in a prison in the southern city of Curitiba, has said the charges against him and his incarceration were meant to keep him out of this year's election.