Tangled Law

Tangled Law

Brazil loves constitutions. Since the first one in 1824, the country
has had six others: in 1891, 1934, 1937, 1946, 1967, and the most recent in 1988. And this
does not include amendments. In its 150 pages, the latest Brazilian Magna Carta not only
deals with provisions fundamental to a democratic society but also with environmental
protection, divorce, labor affairs, hunting, and children’s rights among more than 400
subjects. According to the Justices themselves, the Supreme Court has become almost
inoperable. They have to hear close to 30,000 cases a year even in suits as mundane as the
one in which a goat that crossed a fence ended up in a neighbor’s pot. In the meantime,
the really important actions remain untouched.
By Yara Morton

Unlike the English Magna Carta or the American Constitution, Brazil’s Carta, as it
is often called, has an interesting history of frequent and dramatic changes. In 1889,
after a long imperial period, the Portuguese royal family was sent back to their homeland
and the Republic of Brazil was then instituted. The republican period brought phases of
great expansion and economic development, but also times marked by government instability
and corruption. As a result, the year of 1964 culminated with yet another form of
government when the military, overlooking the constitutional provisions, overthrew the
government of then President João Goulart. Under military ruling, where freedom of speech
was curtailed and dissidents persecuted, the constitution had to quickly be changed in
order to reflect the style of the new administration.

Nonetheless, after 20 years of imposed governments upon the Brazilian people, the
military dictatorship ended, and in 1985 power passed to a civilian president. Once again
the Brazilian Constitution had to be changed in order to suit the new era Brazil was
entering. In 1986, federal deputies and senators were elected to compose the National
Assembly, and its 559 members were given the task of creating the new Constitution of
Brazil. One year later, the new Constitution of 1988 was promulgated and the nation, under
a substantially different social and political organization, held its first direct
presidential elections of the post-military era, in 1989.

The new Carta of 1988 is a beautifully overencompassing collection of rights and
freedoms that any human being would wish to be granted. And regardless of the fact that we
fail to see the application of all constitutional provisions in the everyday lives of
Brazilian citizens, Brazil’s fragile democracy and still fresh Carta has already given
Brazilians a great victory when in 1992, President Collor de Mello, amid charges of
corruption, was impeached and removed from office without any military interference.

The Judicial System

An explanation of the entire federal and state judicial system of Brazil is beyond the
scope of this article. The Brazilian system is certainly more complex, although not
necessarily more efficient, than its U.S. counterpart. Unlike America, Brazil is a Civil
Law country with a judicial system organized in a manner that resembles many of those
found in Western European countries. For example, similar to France’s specialized courts
of labor, commerce, social security and rural affairs, Brazil also has specialized courts
which handle matters related to labor, military and electoral issues. Thus, if the subject
matter of the cause of action is within the realm of the so-called Specialized Justice,
the specialized courts will have original jurisdiction over the case. By exclusion, what
is outside the Specialized Justice falls under the Common Justice umbrella, where either a
tribunal of first instance or a small claims court will have original jurisdiction.

Among the many differences between the American and Brazilian systems, one deserving
special notice concerns the type and number of cases that can end up at the highest court
of the land. While U.S. Supreme Court Justices adjudicate an average of 100 cases per
year, last year, the Ministers of Brazil’s Supremo Tribunal Federal (STF) ruled on a total
of 28,000 cases, which is about 280 times the workload of U.S. Justices.

The reason for this overload lies in the fact that, while the American constitution is
only approximately 10 pages long, the Brazilian Carta, with its 245 articles and 73
transitional provisions, occupies more than 150 pages. The Brazilian Constitution, besides
enumerating provisions fundamental to a democratic society, actually encompasses a total
of 455 different subject matters. Included are provisions for environmental protection,
divorce, labor affairs, science & technology, public entertainment, fishing, hunting,
children’s rights, eviction laws, and much more. Consequently, since the main role of STF
Ministers is to prevent any violation of the Constitution, virtually any case that enters
a state court can end up before the STF. Under this rule, the STF ends up operating just
like a small claims court.

In contrast to U.S. Supreme Court Justices who have the power to choose to hear only
those cases which present a really important question, Brazilian legislation does not
afford such authority to STF Ministers. On the contrary, a Brazilian law states that any
claim, no matter how foolish, cannot be discarded. This is also the rule in France, and as
much as this rule seems to be the prototype of a truly democratic society, the reality is
that such a rule can jeopardize the effectiveness of the highest court of the land as well
as the whole judiciary system. Although France’s highest court of appeals does not adjudge
on the constitutionality of matters, since this is done by a constitutional counsel prior
to laws being promulgated, French Justices are still constantly overburdened, causing a
severe delay on the delivery of justice. Statistics show that in 1990 the Counselors, as
the French Justices are called, adjudicated 25,951 cases, leaving behind 33,858 still
pending. Unfortunately, the number keeps growing.

Worse yet is Brazil, where the rule that any case is entitled to be heard has led to
proportions so extreme that the Ministers themselves have claimed that, save an urgent
reform, the STF may eventually become inoperable. To illustrate the absurdity of what ends
up at the STF is this one case from a rural area of Brazil where the plaintiff’s goat
crossed over into the defendant’s yard who quickly turned the goat into barbecued meat. A
baffled Minister Maurício Correa had to rule on the constitutionality of the defendant’s
feast. He, nevertheless, complained that this matter should have been resolved by the
tribunals of the parties’ state, but because "matters related to cows, butterflies
and horses are all constitutional matters," he had to hear the case.

In an even more absurd example, the plaintiff, a shanty town dweller, filed a suit
against Brazil’s President Fernando Henrique Cardoso after he read in a Brazilian tabloid
(National Enquirer-style) about a new law that the President had just promulgated. The
article purported that, as a measure to maintain controlled population size, a law had
been passed which required all citizens above 65 years of age to present themselves to a
Rio de Janeiro’s crematory in order to be cremated. Each person was to bring 2 cubic
meters of wood or 18 litters of gasoline and a plastic bag where their own ashes would be
deposited. The distraught 77-year-old plaintiff, filed a suit immediately with the STF for
his right to live. Although it goes without saying that such law had never existed, the
nonsensical case, with its 23 pages of court documents, was only dismissed after the
Republic’s general procurator (the attorney general) gave his opinion on the matter.

Another frustrated Minister is Moreira Alves, who has been in the STF for more than two
decades. When he was first appointed to the position in 1975 by then President Ernesto
Geisel, the STF adjudicated 9,000 cases per year. Since then, he stated, the Brazilian
population grew 50%, the GNP doubled, and the number of cases grew more than three times.

Being overburdened with cases is not a problem exclusive to the STF ministers. In 1996,
the 10,000 magistrates who compose the entire Brazilian judiciary adjudicated more than 5
million cases; an average of 500 per capita. With this workload, even if the country had
doubled the present number of judges, the work might still not get done. Moreover, due to
the specialized courts and the fact that appeals can move not only vertically but also
horizontally, some courts will be more overwhelmed with work than others. For example, the
Military Tribunal gave its judges a rather manageable year. However, out of all the many
tribunals and instances no one worked as much as the Ministers of the STF, having each
adjudged 2,800 cases.

STF Ministers regularly choose to adjudicate the trivial cases first in the hope of
reducing their pile of cases faster. In the meantime, the really important actions
pertaining to the frequent corruption scandals, embezzlement, abuse of power, bribery, tax
evasion, election fraud, nepotism, to name just a few, remain untouched. In fact, of all
actions adjudged last year, 40% had the federal government in the position of defendant
and another 20% were against a state or a municipality. This demonstrates that the same
government that provided the Brazilian people with a truly democratic Constitution either
resists in complying with its provisions or merely disregards them.

Endless Appealing

The losing party of a suit in Brazil can appeal a decision so many times that it makes
the American procedural system seem extremely simple. STF Minister Sanches stated that he
ruled on a case that had been appealed 28 times in the lower courts before it finally got
to the STF. Although a case that has already been appealed so many times and granted the
same judgment will most likely never obtain a different result from the STF, the federal
and state codes of procedure allow a losing party an indefinite number of appeals, a
procedure that contrasts strongly with the one followed in America. This rule seems to be
just another display of democracy, but one that again is far from being effective, since
it only contributes to the overburdening of the judges and serves to further delay the
administration of justice.

In contrast, in the American system, the losing party of a suit will have the
opportunity to appeal a judgment a maximum of two or three times, depending on the nature
of the action, and once a final judgment is rendered by the court of last resort that
judgment is res judicata, that is, conclusive as to the rights of the parties and
constitutes an absolute bar to a subsequent action involving the same claim.

One of the reform proposals for the STF presently before congress is the so-called
"Súmula Vinculante" which, in essence, closely resembles the American tradition
of precedent or case law. For those thousands of cases that end up at the STF which are
categorized as Common Actions (i.e. an action by a citizen against a public entity), when
being of identical character to a previously decided case, the Ministers would give them
an automatic decision following the precedent. This approach would expedite the
application of justice and would dispense with the case-by-case method of adjudication.
This is the way justice is rendered by Spain’s Constitutional Tribunal which is also a
Civil Law country.

Another urgent reform being sought by the STF is the reinstatement of the power the
Ministers of the STF once had under the former Brazilian Constitution, which is the power
to choose which cases to hear, a practice common to U.S. Supreme Court Justices. As
Minister Moreira Alves stated, "Out of each ten actions that end up here, only two or
three involve serious constitutional questions. The rest is trivia."

Lastly, there is a need for the codes of procedure to urgently be revised, but as of
now, there are no proposals before Congress.

A very optimistic side to this scenario is that Brazilians, like never before, are not
only becoming more aware of their rights granted by the new Constitution, but they are
also seeking the judicial channels to assert these rights. This growing awareness of one’s
rights and intolerance to abuse by the administration can only benefit Brazil and its
people who have been plagued for far too many years with deeply corrupt governments and
outrageous impunity. The time has come for a change, and a dose of hyperlexophobia is not
bad. As the old adage says, better late than never.

Yara Morton is expecting to receive her Juris Doctor in 1999.

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