Judges in Brazil acquired from the 1988 Constitution an impressive degree of administrative, financial, and disciplinary independence. Since then, they are able to strike down any act of questionable legality enacted by public authorities.
However, there is a widespread concern in Brazil over signs that the PT (Workers’ Party) government might be wishing to exercise undue control over the Judiciary.
Part of the strategy would include the institution of a body of external control over the courts, and there are also fears of political influence on judicial decisions made by Brazil’s highest court, the Federal Supreme Court (STF).
President Lula da Silva has been pushing for the creation of a National Council of Justice (CNJ). This external body to the courts would have powers to oversee their internal rules and handle complaints against all judges.
The CNJ would comprise not only members of the judiciary, but also politicians appointed by the Chamber of Deputies and the Federal Senate, as well as representatives of the Brazilian Bar Association (OAB) and the Public Prosecution (MP).
In justifying the relevance of a body such as this, Lula argues that the judicial system has become an ‘impenetrable black box’ that resists change and is rife with corruption.
If the existence of corruption might possibly justify a CNJ to oversee the activity of judges, the PT government is also in much need of this very sort of control.
After all, corruption may be much worse in the executive than in the judicial branch. Lula has criticised judges for not wishing to be more accountable to the society, but the basic reality is that the federal executive does not want to have accountability as well.
When José Dirceu, Lula’s Chief of Staff, seemed to be deeply involved in a scheme of gambling money for election campaigns, the PT government did not allow even the institution of a parliamentary committee to look into the matter.
President Lula also complains about the slowness and the delays in the judicial system.(1) However, he seems to entirely ignore that the executive, which is his own branch of government, is the main responsible for this problem.
About 70 percent of lawsuits decided by the higher courts are related to matters in which the executive (federal, state, or local) is being sued.(2)
If so, a good reason for judicial delay in Brazil is governmental resistance to comply with legitimate pretensions manifested by citizens who lodge their complaints against the executive.(3)
Actually, the proposal of a CNJ endeavours to restore a body of external control that the military regime had created in 1977.
However, an editorial from Jornal do Brasil comments that authoritarianism was only ‘buried’ in the country when the National Congress decided in 1987 to abolish that CNJ, bringing back independence to the Judiciary.(4)
In fact, drafters of the 1988 Constitution regarded the CNJ as contrary to judicial independence, and the STF has agreed with this opinion on two different occasions, by ruling out state laws that planned to create this sort of external control over state judges.
Naturally, the proposal of a new CNJ to oversee the judiciary has sparked outcry among judges. A former STF Justice, Maurício Correa, declared that President Lula seems to consider the judiciary a mere assistant to the executive.(5)
Actually, Lula was once reported to have declared at the National Confederation of Industry (CNI): “You can be certain that neither rain nor frost, nor Congress, nor Judicial branch will prevent this government from making the country occupy the outstanding place it should never have ceased occupying”.(6)
On April 6, 2004, Lula’s special advisor, Frei Betto, commented to a major newspaper that the judicial system should not ‘criminalize’ leaders of social movements like the MST, a radical organization which does not have even a legal status in Brazil, and promotes violent invasions of productive farms and public buildings.(7)
Since the majority of Brazilian jurists consider the proposal not constitutional, the PT government has now agreed to discuss the issue more carefully.
Indeed, the Lula administration has also realized that the STF would probably declare it as void, for the list of jurists who think it is unconstitutional includes: Ives Gandra da Silva Martins, Manoel G. Ferreira Filho, Francisco Rebouças, Alexandre de Moraes, Francisco Martins, Cândido Rangel Dinamarco, among others.
In general, they all think the proposal violates a fundamental clause of the Constitution saying that no amendment might be taken into consideration if it is aimed to abolish the threefold separation of powers.
But one may suggest that if the PT government really wishes to take over the courts, all it needs is to stay in power for a few more years.
All in all, Lula has already appointed four out of the eleven STF Justices, and re-election would give him the power to appoint four more Justices to this very court.
Then, there would be no necessity for the Lula administration to create any external control in order to indirectly affect the way the STF, Brazil’s highest court, might decide its major cases related to constitutional interpretation.
1. See: Gentile, Carmen; Brazil’s Lula Ready to Take on Courts. Washington Times, 3 February 2004.
2. Netto, Franciulli; Um Cavalo de Tróia no Judiciário. Jornal do Brasil, 19 April 2004.
3. Rosenn, Keith; Judicial Reform in Brazil. Law and Business Review of the Americas, Spring 1998.
4. Jornal do Brasil; Controles Inaceitáveis. Editorial, Rio de Janeiro, February 4, 2004.
5. Chagas, Carlos; Brazil: Ex-Chief Justice Assails Lula. Brazzil, July 2004.
6. Lula afronta poderes e diz que só Deus impedirá êxito do país. Folha de S. Paulo, 25 June 2003.
7. Invasões Avançam e Governo Baixa o Tom Contra MST. Jornal do Brasil, 7 April 2004, p.A3.
Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil.
He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro.
He is also a member of the editorial board of Achegas, Brazil’s journal of political science, and Lumen Juris, a prestigious law book publisher in Brazil. His e-mail address is: email@example.com