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Being a Judge in Brazil Is Often Also Being a Legislator

A Brazilian court in sesssionJudges in Brazil acquired from the 1988 Constitution an impressive degree of administrative, financial, and disciplinary independence. Since then, they have been able to strike down any act of questionable legality enacted by the public authorities. Such independence, however, may paradoxically be seen as having not been altogether beneficial for the rule of law.

A question currently being raised in the country is whether or not its judiciary has now become an entrenched “bureaucratic oligarchy” devoid of any accountability.

The last days of military government (1964-1985) in Brazil coincided with an incredible rise of politicisation in the judiciary. Since the 1980s, many judges have coalesced around the idea of “alternative law”. Judges who embrace “alternative law” normally argue that the judiciary should cater to the expectations of the “marginalised” and “oppressed” ones, by resisting what they regard as “wooden and violent generalities of the state law”.

According to Law Professor Megan J. Ballard, a more dogmatic interpretation of alternative law “posits that judicial power ought to be rallied to the service of poor masses in their struggles”. However, as Ballard points out, “detractors argue that alternative law will lead to anarchy because it encourages judges to consider themselves to be above the law and the sole interpreters of popular will”.

The Movimento de Juízes Alternativos (Movement of Alternative Law Judges) has been Brazil’s most influential school of legal thought. The movement has its own journal, collective meetings, and “a degree of influence upon the judiciary as well as a legal academy that far outreaches the American critical legal studies movement and its European counterparts”.

The idea of applying “alternative law” is so popular in Brazil that a survey of state judges in Rio de Janeiro revealed that 62 percent of them have decided cases based on alternative-law tenets. Another survey also found that 83 percent of all judges of the country think that the courts should not be impartial and should always be used as tools for social transformation.

When Brazilian judges in the survey were presented with the basic choice of applying a clear legal norm and promoting their own vision of “social justice”, three-quarters expressed their preference for the latter over the former. In doing so, they argue, the courts should be morally bound to “play an active role in reducing social inequalities”.

This is for instance how a judge from the Supreme Court (STF) describes his peculiar way of deciding cases: “Whenever I face a controversial case, I do not look for the dogma of the law. I try to create within my human character a more adequate solution”.

Indeed, a basic principle of alternative law is to never look for the “dogma of the law”, as alternative-law lawyers tend to regard the idea of judicial neutrality as a “bourgeois myth”. For alternative-law proponents, judicial impartiality will result in “servile utilization” of the courts by the ruling economic classes.

Thus, Antônio Alberto Machado, a law professor and the head of the center for Alternative Law Studies at the State University of São Paulo (Unesp), has declared that judges need to be entirely free “to construct law as means to change the order (mudança da ordem) and [as a result] bring about human emancipation”.

Behind the exhortations of alternative-law lawyers we find the post-modern doctrine of philosophers such as Jacques Derrida and Michael Foucault, for whom there is no fixed meaning in language. Judges who accept this axiom repudiate objectivity in legal provisions.

They argue that every judge should be free to decide cases on the basis of “the best interests of the oppressed classes”. A good example of this alternative-law position is expressed in the following excerpt from an article written by law professor Paulo Roberto Pereira de Souza, formerly the chancellor of the State University of Maringá:

“In our postmodernist society, we are seeing a true revolution in law… The installation of judges with new powers resulting from this process has allowed judges to make advanced decisions going against unjust norms that conflict with public interest. There is no law, no legal norm or statute that justifies fraud of the public interest”.

The installation of such “new powers” is found nowhere in the constitutional order. If so, this idea of “new powers” is basically unconstitutional. It means, in practical terms, the replacement of the rule of law by the rule of judges.

Moreover, the premise that judges better know what is best for the public interest is an arrogantly elitist and utterly undemocratic postulation. For it basically implies that the people’s representatives in parliament know less about matters of “public interest” than unelected judges.

As observed, the major goal of the alternative-law movement is the use of the judiciary as an instrument for radical social transformation. The means through which this objective is to be reached is by subversion of so-called “dominant discourses” of the state law.

Thus, judges who embrace the idea are less concerned about legal interpretation than they are about deconstruction of the legal system, a system they regard as being merely an instrument for domination by the economic elites.

Since the law is broadly seen as only serving the interests of the economic ruling groups, alternative-law lawyers label as “elitist” any literal interpretation of positive law. They state that judges ought to have total freedom to create “new laws” so as to liberate “oppressed classes” from state law. These “new laws”, of course, do not come from the state legal system, but are declared “parallel” and “insurgent” to this.

According to José de Oliveira Ascensão, a legal scholar at the prestigious University of Lisboa, alternative law wishes to “deconstruct” the state legal order, so as to apply new rules that judges themselves believe to represent “better solutions for the exploited classes”.

The Portuguese law professor also states that constant “alternative” decisions have already transformed the Brazilian judiciary into a sort of “lottery”, where nobody is able to reasonably predict the final result of any judicial decision.

Of course, one may suggest here that Brazil’s social inequalities could possibly justify a more politically active role for the judiciary. But we only need point to the research that found that the Brazilian judiciary is directly responsible for the reduction of Brazil’s domestic private-sector investment by around 15 percent of the GDP to disabuse anyone of such a notion.

The main reason for such a reduction is the perceived lack of law-enforcement of contracts by the country’s judiciary. This perception that judges do not properly apply the law has dramatically discouraged private investment and reduced the willingness of debtors to pay creditors.

Potential creditors are now reluctant to lend money to entrepreneurs (and the poor), as they reasonably conclude that judges will be unwilling to protect them from any opportunistic behaviour from their borrowers.

A renowned economist, Armando Castelar, explains that even when the legal norm is broadly regarded by commercial lawyers as being absolutely clear about a creditor’s right, judges may prefer not to enforce it.

He also explains that housing mortgages, which are very important for the working class, scarcely exist in Brazil because judges are broadly recognized as being reluctant to allow the banks to foreclose.

While judicial independence is essential to check governmental arbitrariness, judges must not abuse the principle so as to obstruct government policies they personally (and ideologically) dislike.

In 1997, however, the power struggle between the government and highly politicised judges led to several suspensions of the auction of the CVRD, the world’s largest iron-ore mining company.

They were suspended because judges issued injunctions for minority groups who were ideologically opposed to any form of privatisation. Some, however, used the technical argument that prospectus should have been published in popular tabloids and not only in business publications, despite jurisprudence from higher courts to the contrary. As Law Professor Keith S. Rosenn explains:

“The auction to privatize the state mining company… had to be suspended on four successive days because 135 lawsuits were filed throughout the country, resulting in thirty-five preliminary injunctions barring the sale. One belated injunction was issued after the auction had been held. All were eventually quashed by higher courts, but only after causing Brazil considerable international embarrassment for permitting a judicial circus”.

In the same way, politicised judges also tried in 1998 to block the sale of Telebrás, a publicly owned telephone company. The government, however, had on this occasion organized an “army” of 700 lawyers for the battle at the courts, ready to challenge and repel last-minute injunctions.

In fact, those judges who fought against the sale ignored its clear benefits for the working people. With the sale, the cost of a new telephone-line dropped dramatically, from US$ 1,200 to just US$ 65. What is more, as reported, a great part of sale profits was allocated to public education.

Another good example of politicisation is the way some judges interpret the meaning of “social function” with regard to property. It is true that the 1988 Constitution discusses the need for property to respect “social function”. But this basic law is silent on what it actually means. What the law instead does is explicitly declare that citizens have the constitutional right to preserve and inherit their property. It even says that property rights constitute “fundamental rights” for the citizen.

The 1988 Constitution also states that property can only be taken away from its owner in extraordinary situations of “relevant public interest”. If so, expropriation needs to be carried out by the government by providing “fair compensation in money”. In fact, there is even a “cláusula pétrea” (stone clause) to the Brazilian Constitution, which forbids any amendment aiming to restrict individual rights like that applying to property rights.

Despite all this, some judges have interpreted “social function” to mean the judicial redistribution of property. A judge from Rio Grande do Sul state, Luis Christiano Enger Aires, decided on 15 October 2001 to reject a farmer’s request to regain his own farm that had been invaded by social activists of a radical organization known as Landless Movement (MST).

He argued in his “legal” reasoning about a supposed conflict between the farmer’s right of property and the right of land invaders to a “worthy life”. He thus decided to reject the former right by upholding the latter one. The State High Court (TJ) subsequently confirmed the controversial decision in an appeal. Such rulings sparked general protests throughout the region, as can be gauged by the editorial of Zero Hora, the state’s leading newspaper:

“The invasions of property that have been taking place over the last few days have once again confirmed the aggressive, illegal, and arrogant manner in which they are normally performed. But there is now a new factor in this whole matter. It is the alternative content of judicial decision, and more specifically their purely ideological content.

“On behalf of civilized life, we should never regard as natural and acceptable the idea that judges, whose main function is the administration of justice, can decide to arbitrarily confer to themselves the power of absolute arbiters of what law is… By undermining a basic right of the constitution, judicial rulings have made the case for land reform even more explosive. What should be done through fair legal reasoning and common sense has now become an insoluble problem, and almost certainly a dangerous focus for more violence and illegality”.

In reality, people in Brazil tend to see judicial trials as usually uncertain and unjust. A 1991 poll conducted by the national public-opinion agency (IBGE) found that 30 percent of Brazilians do not have faith in judges and support vigilante justice.

These people believe that judges have failed them, and have decided to support a “parallel system” of “real justice” to deal with problems like criminality. In a study on vigilante justice, the sociologist José de Souza Martins observed:

“In the lynchings that occur in capital cities, the poor and working-class demonstrate their will. They are their own judges, rendering decision about the crimes to which they are subjected, in so doing demonstrating the importance to them of recovering a predictable system of formal justice.”

Although judicial politicisation is surely not the only reason for “popular justice”, we can nonetheless argue that judges might contribute to this problem by bringing about uncertainty and unpredictability in the formal legal system.

If trials are normally seen as unavoidably uncertain and not objectively just, then, argues High Court of Australia judge Dyson Heydon, “the chances of peaceful settlement of disputes are reduced and the temptation to violent self-help increases”.

What is more, since we can also suggest that corruption normally implies an undue deviation from the regular application of legal norms, an excess of judicial politicisation can arguably contribute to the problem.

This is so because corruption often takes forms that are much more insidious than outright bribery. Indeed, a stricter adherence to positive laws can produce far more legal certainty, which is by itself a basic precondition for the rule of law.

If so, such excess of politicisation in the Brazilian judiciary might contribute to judicial corruption, as it interferes in the regular course of legal actions in an unforeseeable manner. In brief, without a more satisfactory level of juridical predictability, there will always be an open door to corruption and impropriety.

As can be seen, many judges in Brazil have to reconsider the role of the judiciary as an independent body for the administration of justice according to law. Judges who abuse their position in order to satisfy their personal interests cannot possibly be described as equitable upholders of the legal system.

In fact, as Justice Murray Glesson from the High Court of Australia explains,

“Judges are appointed to interpret and apply the values inherent in the law. Within the limits of the legal method, they may disagree about those values. But they have no right to throw off the constraints of legal methodology. In particular, they have no right to base their decisions about the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy”.

A good reform for the Brazilian judiciary would be to convince judges that they also need to remain under the rule of law. Indeed, some judges in Brazil have yet to learn that the rule of law implies that nobody, not even a judge, has the right to ignore basic legal norms. But it may be said that placing judges under the rule of law requires a radical change of mentality in the country’s dominant legal culture.

Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2005). His e-mail is: augustozimmermann@hotmail.com.

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