A Glimpse on How the Law Works in Brazil

Brazilian STF, the Supreme CourtBrazilian president Luiz Inácio Lula da Silva, in his first public appearance since a hypertension crisis last week, attended the ceremony marking the beginning of court sessions, the Judicial Year.

In a speech, Lula pointed out that this was the last time he would attend the ceremony as president. And he said that over the last seven years the two branches of government had a close relationship where neither one interfered with the other.

According to Lula, as democracy gets stronger future generations will inherit stronger institutions. The president cited two judicial reforms that took place during his term of office, (one in 2004, the other in 2009) which allow, among other things, a reduction in the law’s delay.

He also mentioned the establishment of new federal courts, the use of the “súmula vinculante” and introduction of information technology in the Judicial branch.

Finally, Lula said that the two most important decisions in 2009 were the demarcation of the Raposa Serra do Sol Indian reservation and a new Bankruptcy Law.  In closing he mentioned he was pleased that judicial decisions have always been solidly based on constitutional precepts.

Speaking at the ceremony the Chief Justice of the Supreme Court, Gilmar Mendes, presented a balance sheet of court activities in 2009. He pointed out that eleven “súmula vinculantes” were approved and reduced the number of cases distributed over the last two years by 40%.

That made it possible for the court to deal with important questions such as the demarcation of the Raposa Serra do Sol reservation, the Post Office monopoly and the Press Law.

“When faced with the challenge of controversial issues that divide society this court courageously can be found on the leading edge,” declared the Chief Justice.

Mendes also recalled that Judicial Goal 2 had been achieved: closure on all cases that had reached the court by December 31, 2005. “Eliminating this backlog of old cases made the judicial process as a whole more transparent,” he said.

There was also the 2nd Republican Pact where, jointly with Congress, a series of projects were approved to benefit society. Twelve such projects were approved, among them the possibility of police interrogations by videoconference and stronger oversight of the prison system.

One of the government’s most important attorneys (procurador-geral da República), Roberto Gurgel, told the audience that in 2010 the goal was to computerize every corner of the judicial system.

The president of the Senate, José Sarney emphasized the harmony that characterized relations between the Supreme Courts and the Congress. He also praised Gilmar Mendes profusely, saying Brazil owed him a great debt.

Final note:

Brazilian law is based on Roman Law or Civil Law where principles are normally embodied in statutes or codes rather than case precedent. In English common law and American constitutional law precedent or “stare decisis” is a fundamental principle based on the rule that courts should “maintain what has been decided and not disturb what has been settled.”

Significantly, the Google translation for “súmula vinculante” is “stare decisis.” Literally the term means “a binding ruling.”

In practice, the “súmula vinculante” is a wedge. It creates an opening for precedent in Brazilian jurisprudence. The use of the súmula vinculante dates from December 30, 2004, when constitutional amendment number 45 made it the law.

ABr

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