Bertrand de Solere Blog
Organization of powers in Brazil and judicial activism
Thirty years after the return of democracy and the entry into force of the Federal Constitution of 1988, the debate on justice and the activism of the Judiciary is hardening in Brazil.
By “judicial activism” is meant an amplified judicial activity in relation to the limits of its functions as defined in the Federal Constitution. Thus amplifying its intervention, the Judiciary would encroach on the Legislative and Executive Powers.
The judges of the Supreme Court of Brazil (“Supreme Tribunal Federal-STF”) already consider themselves that the judge is a political agent and not a mere public official.
We understand this position first of all because the three traditional powers of all democracies (Legislative, Executive and Judicial) are placed at the same hierarchical level in Brazil.
Then, the Federal Constitution of 1988 granted judges very important powers of control, in a context of neo-constitutionalism (the Constitution is supreme).
In addition to constitutional review in all its forms (concentrated review; diffuse review) of laws and administrative acts, the Constitution also grants the STF the power to legislate itself on certain fundamental rights provided for in the constitution if the legislature remains inert (which is often the case given the dispersion of its members).
In short, the constituents of 1988 granted it a central institutional role, a role which was amplified by other factors detailed below, favoring activism which may be exaggerated in the face of the necessary balance of institutions.
STRICT SEPARATION OF POWERS
While European parliamentary regimes also adopt the principle of separation of powers, they do not place them on the same level, giving the Legislative (parliament) a higher value. The European Executive and Judicial Powers are independent of the Legislative Power, but must submit to it, within the limits of constitutional rules.
In Brazil, perhaps as a reaction to the previous authoritarian regime, the separation of the three Powers has been pushed almost to the extreme, each of them being placed on an equal footing with the other two. Alain Rouquié, specialist in Latin America, former French ambassador to Brazil and author of “Brazil in the 21st Century”, speaks of “Unparalleled Independence of Justice” (p. 23) which gains administrative and financial autonomy without no external control (art.99 FC88).
The redemocratization of 1988 took place by following the neoconstitutionalist movement, which consists in subjecting all the constitutional organs to rules, as much in substance as in form, of a superior, constitutional value, which must be respected by all.
However, to enforce these rules of constitutional value, it is the Supreme Court of Justice of Brazil (“STF”) that must intervene.
In an interview with BrazilJournal on 07/13/2018, Eliana Calmon (magistrate, former president of the National Council of Justice -CNJ), said: “The model established by the 1988 Constitution for the STF is that of absolute power : the judges of the STF are capable of defeating the President of the Republic, the National Congress, and that is no small thing. The constitutional legislator adopted this model because according to him it is in the judicial power that the greatest security lies, because it is the moderating power”.
JUDICIALIZATION OF A PATRIARCHAL SOCIETY
The return to democracy and the adoption of many constitutional rules for the protection of rights have encouraged all Brazilians to take legal action for the slightest annoyance. All subjects are concerned, such as contesting sports defeats. All public tenders are at one time or another challenged in court. Requests for release (“habeas corpus”) for convicts who can afford good lawyers are repeated incessantly (for example, between April 2018, the month of incarceration of ex-President Lula and mid-July 2018, more than 200 habeas corpus requests were formalized with the Court of Cassation of Brazil (STJ)).
To accentuate the phenomenon, it should be remembered that Brazilian society is very patriarchal, in the sense that it is always necessary to appeal to a higher authority to settle conflicts or make a decision that concerns us.
Unlike more liberal societies such as Anglo-Saxon countries and France, where the parties more often settle their conflicts by private agreement, an agreement which is binding on the judge, in Brazil; judges have extensive power to review contracts concluded between individuals and, consequently, the parties prefer either to have their agreement validated by the judge, or to appeal to the judge directly to rule in their place.
THE JUSTICE CRISIS (LEGISLATIVE AND EXECUTIVE) IN BRAZIL
The corruption cases that have been in the news in Brazil in recent years directly affect the political class. The latter not only sees itself discredited to a certain extent with the voters, but also increasingly dependent on the judicial institutions which are called upon to judge its members.
The Judiciary therefore appears as the last rampart to cling to in the face of arbitrariness and various threats against democratic institutions and society in general.
The debate on the institutional imbalance in favor of the Judicial Institutions has therefore been growing for some time.
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