By: Fausto Martin
De Sanctis, Federal Appellate Judge, Sao Paulo Brazil
I. Introduction.
The Brazilian judicial system is composed of numerous institutions. Its
formal nucleus is the judicial power (Articles 92 and 93, Brazilian
Constitution), but it also encompasses the essential functions of the branch:
prosecutors, public defenders, and private lawyers. Within this context, the
judiciary must be highlighted as the core of the judicial system. The Brazilian
judiciary has, over time, assumed a role of growing importance of political
leadership.
The historical evolution of the Brazilian public institutions,
especially after the Federal Constitution of 1988, reveals a shift in government
powers from a system that emphasized legislative and executive powers to one
that also includes the judicial branch. Political disputes avoided by the
legislative power are now being included in cases being filed in court.
Some examples of recent decisions of the Brazilian Supreme Court reveal
that the reluctance of the legislature to exercise its power and authority has
been accompanied by the filing of cases in court and the subsequent willingness
of the courts to hear these issues. These cases have involved issues relating
to the activity of the strike in public service, abortions, stem cell research,
tribal lands, elections – regulation of party loyalty, and amnesty for the
military. These are issues that traditionally involved the exclusive exercise
of legislative power. Therefore, what should be regulated by law, by
representatives of the people, turns out to be determined by judicial
decisions, not always in keeping with popular sentiment. It is remarkable that
the role that the judicial power, specifically the Brazilian Supreme Court, has
performed as the last level of confirmation of legislative policy decisions.
Defeated groups in the Congress have used the judicial power to obtain
decisions about constitutional proposals that had failed in the legislature.
At the top of both the federal court system and the several state court
systems, for purposes of appeal, is the Brazilian Supreme Court (Supremo
Tribunal Federal – S.T.F.). It is comprised of 11 justices (Ministros) who are
appointed by the President and approved by the Senate. The justices of this
court must be at least 35 but less than 65 years old. They have life tenure
until their compulsory retirement at age 70.
The judicial power now occupies new institutional space. Deciding questions
of political nature, the Brazil Supreme Court has becomes a political entity,
and has been observed with great interest by various social groups. Thus,
Brazilian society has become aware of the importance of judicial decisions in
day-to-day social and economic life and economic development. This judicial
activity has caused it to become a center for discussion. Legal discussions
now involve economists, psychologists, journalists, members of social
movements, NGOs etc. who realize the importance of judicial function.
The occupation of a new political space brings new challenges to the
judiciary. Where once there was a big distance from social demands, today they
are multiplying in the judicial branch. Where once there was a respectful
silence relating to its decisions, today there are many critics. If the
judicial power was seen in the past as an unfailing institution, today it is
the target of political demonstrations and the demands of social movements.The
judicial power is being looked as a public service because judicial rulings
involve issues of a public policy. Society has started to debate its action,
scope and efficiency.
The new political leadership of the judicial power lighted up all the
judicial system. Citizens and citizen groups have started a vigorous debate not
only about the content of judicial decisions that significantly impact
Brazilian life, rights and values, but also on the organizational model of
justice and its way of relating to the same society. The discussion of the
organization and functioning of judges and judicial power and their
institutions are no longer a subject of interest of only a few actors,
generally related to legal practice, and have become the interest of broader
segments of society.
In 2003, the executive power created, within the Ministry of Justice
(Department of Justice), a Judicial Reform Office, which had the authority to
consider improvements in judicial service. It is no coincidence that, in the
same year, the Senate proposed a constitutional amendment to recast the entire
judicial system (so-called 2004 Admendment of Constitution). Under these
circumstances, in 2005 the three branches of the Brazilian government
(legislative, executive and judicial), in recognition of the importance and
relevance of the judicial function, launched a "Covenant (pact) for a
Republican and a Faster Judicial Power,” with numerous commitments aimed at
providing greater access and efficiency in the whole judicial system.
It has become clear that there has been mobilization in favor of
institutional reform and clarification of the judicial function. At the same
time, there is an absence of concrete proposals coming from civil society.
However, the role of civil society to minimize the problems of management and
access is essential. Its indifference to the judicial branch must be overcome
through technical approaches (data dissemination, information and studies) and
by the service provided to the users showing the importance of management for
the betterment of society.
II. General
crisis of the efficiency of the judicial system.
The Brazilian legal system has three chronic structural problems: (1)
slowness and lack of efficiency in decision-making, (2) lack of transparency
and democratization, and (3) the absence of effective access to justice.
The slowness of the judicial decision-making process and lack of
concrete impact of many of its decisions has undermined the legitimacy and
prestige of the Brazilian judiciary. Some data help quantify the problem. Of
155 countries surveyed by the World Bank, Brazil is among the 35 worst in the
length of time required for reaching a decision in a case. This ranking
occurred because a case lasts, on average, about eight years. In a survey
conducted by a consulting company, a proceeding for judicial recovery of a debt
in the bankruptcy court (only 1st instance) in Brazil takes 546 days. In Chile,
it is 305 days and in the U.S. 250 days. In Latin America, considering all
countries, this period is about 461 days.
Regarding small claims courts, research carried out by the Ministry of
Justice points out that the ongoing trials, designed to provide speed and
simplicity in handling simple cases, take 349 days to complete all phases of
the proceeding and about 300 days to serve the decisions.
The problem of slowness of the judicial system derives from several
factors. The lack of clear diagnoses about the functioning of the judicial
branch in the country impedes the identification of the problem, but some
examination and resulting evidence can show the main bottlenecks, which will
indicate the adoption of appropriate policies to overcome them.
The quality of judicial decisions is ultimately determined by a system
of uniform jurisprudence which contributes to a reduction of uncertainty.
Therefore, it is necessary that decisions involving the creation of binding
precedent or that reject appeals be based on the same law grounds; otherwise
the decisions create divergent legal positions on the same issue. In addition,
an environment of legal uncertainty creates room for corruption. Decisions must
be created quickly to reach the apex of the organizational chain in order to
obtain binding decisions (new precedent).
Another element to strengthen the judicial process is to eliminate
certain kinds of disputes from judicial consideration. Formerly, divorces,
separations and succession, even if there was mutual agreement of the parties,
needed the approval of a judge. With recent legislative changes, these matters
were taken from judicial system.
It is important to highlight the culture of litigation in Brazil,
responsible for expanding the already excessive overload of work of judges.
There is an absence of extrajudicial programs, such as arbitration to resolve
the issue of heavy work loads, because the judicial system is seen as the only
way to resolve disputes. One study of small claims courts revealed that only
34.5% of cases reached an agreement in a conciliation hearing. A study from the
Ministry of Justice revealed that in cases where the work of a lawyer is
involved, the percentages of agreement are lower and the duration of
proceedings increases. Lawyers require more production of evidence and take
more appeals for their clients. Thus, it is undeniable that the development of
community judicial programs, such as mediation, reconciliation and restorative
trials are not only a provider of social peace, but also reduce the volume of
lawsuits. .
Procedural rules are complex and often incoherent. As a result they
generate errors, enabling the perpetuation of demands by establishing several
appeals which often turn tardy. This means that the current appeal system
should be challenged and changed, and proposals for streamlining the
proceedings to insure speed without tarnishing defense rights constitutionally
guaranteed should be sought.