The Judiciary in Brazil


By Fabio Konder Comparato*

A permanent feature of Brazilian society is its structural duality; that is, behind the official world there has always been a very different reality, dominated by oligarchic power. The body of magistrates, among us, has always been part of the cadres of the dominant social groups, fully sharing their mentality, that is to say, their qualities and defects, including the endemic vice of corruption.

In the colonial period, the administration of justice was up to the “powerful people of the sertão”, who held the posts of colonels or captains-more of the militia. Thus, military force was united with economic power, which made the administration of justice a true caricature.

This situation remained unchanged throughout the imperial period. During the so-called “Old Republic”, supported by federalist ideas, the de facto domination of local potentates over magistrates greatly intensified. During the Getulist period, with the short interregnum of the 1934 Constitution, all constitutional guarantees of the judiciary were suspended, returning to force only with the 1946 Constitution.

The 1964 coup d'état established a business-military regime, which suppressed all fundamental rights and guarantees, including the judiciary; although the latter were nominally re-established in 1979, with the promulgation of the Organic Law of the National Judiciary. In fact, the rule of law only came back into force in our country with the enactment of the 1988 Constitution.

In 2004, Constitutional Amendment No. 45 created the National Council of Justice, with the function of controlling all bodies of the Judiciary. The Federal Supreme Court, however, avoided submission to this control.

Currently, two major reforms are required in the organization of the Judiciary: (1) the expansion and deepening of the control of its bodies; (2) the institution of new control instruments for these bodies.

The judicial function is essential to every political organization. It was from the establishment of royal courts in the Late Middle Ages, guaranteeing peace and justice to the poorest populations, exploited by feudal barons and despised by ecclesiastical authorities, that the modern State was born and could develop [1].

This being the case, one cannot help asking: – Who should be assigned the jurisdictional function in the State? On what grounds should the holders of that power exercise it? Is it permissible for the judiciary to act without controls?

The answer to such fundamental questions cannot be done on a purely theoretical level, without a concrete analysis of the social reality in which the political organization is inserted. This reality is essentially defined by two closely related factors: on the one hand, the effective (and not just official) structure of power within society; on the other hand, the prevailing collective mentality, understood as such the set of ethical values ​​prevailing in the social environment. In the contemporary state, notably in the framework of capitalist civilization, the collective mentality has come to be decisively shaped by the social group that holds supreme power, based on its own interests.

Let us begin, therefore, by trying to define, based on these structuring elements, the characteristic of Brazilian social reality in the five centuries of its historical formation, in order to be able to understand, then, the performance of the judiciary bodies within this broad social context, and conclude with a proposal for change based on the common good.

The structural dualism of Brazilian society

Since the first decades of Portuguese colonization, the society organized here has had a twofold character: behind the official legal world, protocolally respected, there has always been a very different reality, generally hidden from outside eyes, a reality that in all respects of the holders of effective power.

The latter, throughout our historical evolution, formed a pair, constituted by the alliance of the private economic potentates with the great state agents. The members of this political couple, since the beginning of the colonizing enterprise – since the colonization of Brazil, as Caio Prado Jr. common of the people.

In fact, this business-state marriage, quite contrary to what sustains the ideology of economic liberalism, is the essence of the capitalist system [3]. Now, since the beginning of colonization, Brazil has been endowed with a power structure and a collective mentality marked by the “capitalist spirit” of which Max Weber spoke.

As a result, there has never been, within our dominant groups, a clear awareness of public assets: state resources, even when derived from taxes, have always been seen as a kind of patrimonial asset of society in fact, formed by private entrepreneurs and state agents. Whence came the fact that corruption only gives rise to the opening of criminal proceedings when the amount is small. For the big corrupt – at least until recently, and outside the Central Administration! – the old custom of impunity has always prevailed. That is, “get dirty fat!” as illustrated by Machado de Assis in a famous short story by Old House Relics.

Another decisive factor in the consolidation of the power structure and in the formation of the Brazilian national character was the legal persistence of the slave labor system for almost four centuries. It is important to point out that the practice of slavery was not limited to the business sector, which was fundamentally agricultural at the time, but also broadly encompassed the urban environment, domestic life and the Catholic Church itself. As the Viscount of Cairu pointed out in a letter to a friend, dated 1781, “not having a slave is proof of extreme begging”.

Among the various socio-political effects engendered by slavery in Brazil, two deserve to be highlighted.

First, the non-acceptance, in the collective mentality and social customs, of the principle that “all human beings are born free and equal, in dignity and rights”, as proclaimed in the First Article of the Universal Declaration of Human Rights of 1948. Social inequality, which we face every day, rarely scandalizes us; it appears, on the contrary, as something inherent in human nature itself.

In the political field, the conviction prevails that power can only be efficiently exercised by the upper layer of the population, the misnamed “elite”, and that popular sovereignty, expressed in the very first article of our current Constitution, is a mere rhetorical ideal. Even there, as can be seen, the duplicity of legal systems prevails, with the official appearing as a simple facade of the public building, in whose interior – hidden from external gazes – life is organized in a very different way.

The second serious effect of slavery on the organization of Brazilian society is the tolerance of abuse of power, public or private, an old heritage of criminal immunity that the great slave owners always enjoyed. Excesses or abuses of power are considered normal facts. As good examples of this institutionalized anomaly, it is enough to remember the absence of punishment of state agents, responsible for the countless atrocities systematically committed during the Getulist dictatorship and the business-military regime established in 1964. In both of these paradigmatic cases, with the objective of “turning the page” at the end of the exception regime, the oligarchs resorted to the institute of amnesty, with the approval of the Judiciary.

The position of the Judiciary in the context of Brazilian social reality

The corps of magistrates, among us, has always generally integrated the frameworks of the dominant social groups, fully sharing their mentality, that is, their evaluative preferences, beliefs and prejudices; which contributed decisively to consolidate the functional duplicity of our legal systems in this matter. In other words, our judges have always interpreted official law in the light of the interests of private potentates, in conjunction with state agents, as will be explained below.

brazil colony

During the entire colonial period, as the cities in the interior of the territory were few in number and far from each other, the judicial authorities were never able to effectively exercise their functions in the vast areas where their jurisdiction extended. The natural consequence was that the administration of justice fell, inevitably, to the “powerful people of the sertão”, who held the posts of colonels or captain-majors of the militia. Thus, military force was united with economic power, which made the administration of justice a true caricature.

The King's advisors, in Lisbon, sought to correct this distortion at the end of the 4th century, editing various measures, including the limitation of the time for exercising the military function of captain-major and the appointment of ordinary judges, in principle not subject to the power of large landowners. Evidently, such measures had no effect, if only because it was impossible to find literate people in the hinterland in sufficient numbers to exercise the functions of magistrates. When this question was brought to the attention of the Crown's advisers, they replied that it didn't matter if the magistrates were illiterate, as long as their immediate assistants knew how to read and write...[XNUMX]

In fact, it was the strong bond of kinship or godparenthood of the local magistrates with the families of mor quality, which led to the creation of outside judges. As the Marquis of Angeja, Viceroy of Brazil, clarified in 1715, with this new type of magistrates, an attempt was made to prevent local judges from “allowing the guilty to continue their crimes, by reason of kinship or deference”.[5] This, not to mention the customary fact that several judges became farmers or traders, despite the legal incompatibility of the performance of official functions with the exercise of a private economic activity, whether in their own name or through relatives or friends.

As instances of judicial appeal, but also exercising administrative functions, we initially had the grantees, then the captain-majors and captain-generals, and finally the Governor-General, later called the Viceroy. Then, with appellate and internal competence over the judges of first instance, the comarca ombudsmen, and above these the general ombudsmen, all appointed by the King, were created. In the 6th and XNUMXth centuries, two Courts of Appeal were founded, respectively in Bahia and Rio de Janeiro, with review powers in the last instance, courts whose president was the General Governor, later the Viceroy.[XNUMX]

None of these higher judicial bodies, however, could exercise the necessary control over the acts of the administrative authorities. It was even customary for the Governors, as presidents of the Courts of Appeal, to seek to reconcile the good graces of the judges, adding to the ordered of these, extraordinary bonuses called tips.[7] As for the oversight that should be exercised by the Overseas Council over all the senior officials in office here, it always left much to be desired, as until the XNUMXth century there was only one official sea voyage per year between Lisbon and Brazil .

It should be remembered, by the way, that the first Ouvidor Geral to exercise his functions in Brazil, Judge Pero Borges, who arrived here with Tomé de Souza in 1549, had a not so clean functional past. In 1547, he was condemned to return to the Fazenda Régia the money he had embezzled from the construction works of an aqueduct, of which he had been responsible, in his capacity as Corregidor of Justice in Elvas, in Alentejo. The same sentence suspended him for three years from holding public office. However, on December 17, 1548, the King appointed him Ouvidor-Geral in Brazil, that is, the highest judicial authority below the Governor-General. That is to say: for the exercise of public office in this land, previous criminal convictions counted for nothing.[8]

In order to realize the majority of cases of prevarication by magistrates in the colonial period, it is enough to read some letters from the presidents of the Courts of Appeal of Bahia and Rio de Janeiro in the XNUMXth century.

On January 22, 1725, for example, Vasco Fernandes César de Menezes wrote from Bahia to the King of Portugal in the following terms: “Sir – By the Overseas Council I report to Your Majesty the evil that the Ouvidores of Ceará, Paraíba, Alagoas proceed , Sergipe del Rei, Rio de Janeiro and São Paulo, and the disorders and excesses that all these dismayed and oppressed peoples see, who rightly make themselves worthy that Your Majesty's greatness and mercy do not dilate the remedy for them , with its expansion, do not suffer the last ruin or precipice to which the cruelty and tyranny of these bachelors continually provoke them, who none of them care about this government and much less this Relationship.”[9]

In turn, on June 21, 1768, the Marquis of Lavradio, in his capacity as Governor and Captain-General of the Captaincy of Bahia de Todos os Santos, sent a letter to the Viceroy Conde de Azambuja in Rio de Janeiro, in which, other facts reports: “The Body of Relation found it in the state that Your Excellency. you know the great liberty they had taken with one another, the public interest, which they used to take in private affairs, in which they were being judges, finally the lack of gravity with which they were in such a respectful place, everything has obliged me not to miss a single day of going to preside over the Relation, where it has been necessary for me several times to show or tell them the way in which they should conduct themselves, and the resolution in which I am not to fix it differently. I have the taste that today there are fewer disputes in that place, they don't embarrass each other's votes, and they try to favor their godchildren with more modesty, at least with such a gloss that great care is needed to discover their particular godchildren ; however, it is certain that there are still some of them, I do not believe that they will end as long as some of the Ministers who remain here persist”.[10]

Likewise, in a letter sent in 1767 to the Secretary of State Francisco Xavier de Mendonça Furtado, brother of the Marquis of Pombal, the Viceroy of Brazil, Count da Cunha, referred to the Court of Appeal of Rio de Janeiro: “The Ministers of this Relation, who should contribute to the good harmony of the same court and to the good collection of the Royal Treasury, joined Chancellor João Alberto Castelo Branco, to protect unworthy men, and other debtors of serious amounts to the Royal Treasury; these procedures were so excessive that even in the same Relation and outside it, some disregard was paid to the Crown attorney.”[11]

No surprise, therefore, if from an early age among us, in most cases, the judiciary service existed not to administer justice, but to extort money. in the famous Sermon of Saint Anthony Preaching to the Fishes,[12] Father Vieira denounced the fact in burning words: “See a man like that who is being pursued by lawsuits, or accused of crimes, and look how many are eating him. The Bailiff eats it, the Jailer eats it, the Clerk eats it, the Solicitor eats it, the Lawyer eats it, the Inquirer eats it, the Witness eats it, the Judge eats it, and even it is not sentenced and it is already eaten. Men are worse than crows. The sad man who has been hanged is not eaten by crows until after he has been executed and killed; and he who walks in judgment is not yet executed or sentenced, and he has already been eaten.”

monarchical Brazil

The permanent duplicity of legal systems – one official, rarely applied, and the other unofficial, but always effective – was accentuated after the country's independence. As Sérgio Buarque de Holanda wrote, “it is difficult to understand the dominant traits of imperial policy without taking into account the presence of an 'unwritten' constitution which, with the complacency of both parties, generally overlaps the letter of 24 and the same time will undermine it.”[12]

The political revolt that led to the country's independence took place under the aegis of a small group of intellectuals, fascinated by the libertarian and egalitarian ideals of the French Revolution, soon after consolidated in a monarchical form, ideals that inspired the writing of our first Political Letter. For the local economic potentates, however, what mattered, above all, was access to the main administrative and political positions, monopolized by men from overseas.

The 1824 Constitution solemnly established “the Division and Harmony of Political Powers” ​​as “the conservative principle of Citizens' Rights and the surest means of making effective the guarantees that the Constitution offers” (art. 9). According to that principle, the Judiciary became one of the four Political Powers (art. 10). In real life, however, this proclaimed autonomy of the judiciary bodies in relation to the other Powers was always illusory. The corps of magistrates remained closely linked to the families of wealthy landowners at the local level, and subordinated to the central executive branch at Court.

In 1827, reproducing a model that already existed in Portugal, the position of Squire, to be completed by people without specific training and without remuneration, elected by the citizens of each parish. The Criminal Procedure Code of 1832, promulgated under the influx of liberal ideas, confirmed the innovation and expanded the competence of these judges. In criminal proceedings, they were responsible for carrying out the corpus delicti, arresting and interrogating suspects, as well as denouncing them before the court of law. In civil proceedings, they should preliminarily seek conciliation between the parties, having competence to judge cases of small value. In addition, the justices of the peace also acted in electoral matters, determining in each election who would have the right to vote.

Finally, these magistrates were still responsible for various police functions, such as executing the postures of the City Councils on urban order and discipline, resolving disputes between residents of the district over paths, pastures and damage to other people's property, destroying quilombos and commanding the armed force to break up gatherings that threatened the established order.

It goes without saying that such an institution, despite its democratic appearance, actually became a decisive instrument in the exercise of local power by sugar plantation owners and large landowners; who, incidentally, never shied away, in many cases, from having themselves elected as justices of the peace.

On the other hand, and in apparent contrast to this hegemony of the “powerful people of the sertão”, the corps of magistrates, with the exception of the justices of the peace, remained – especially after the “return policy” of the conservatives, established in 1841 with the reform of the Code of Criminal Procedure – submitted to the central political power. Henceforth it was up to the Emperor himself to directly appoint judges for orphans, municipal judges (with functions different from those of justices of the peace), judges of law (with broader territorial competence) and public prosecutors.

In a short time, the process of submission of the Judiciary to the Executive expanded. To such an extent that, in a Circular of February 7, 1856, addressed to the Presidents of the Provinces, the Emperor determined that, “it being incumbent upon the Judiciary to apply criminal, civil and commercial laws and the respective processes to current cases, the abuse that many judicial authorities commit, failing to decide the cases that occur, and subjecting them as doubts to the decision of the imperial government, for which they hope, even if it is late, suspending and delaying the administration of Justice, which falls within its authority, and thus depriving to the Superior Courts to decide on appeal and competently the doubts that arise in the appreciation of the facts and application of the laws”.[14]

Obviously, however, on the occasion of the appointment of local magistrates, the political leaders of the Court or of the provinces always ended up composing with the great rural lords, if only because the political elections were decided by the latter. Even there, therefore, the official legal order did not really exist, serving only as a facade for the public building.

An even more scandalous duplicity occurred throughout the Empire in matters of slavery. The Constitution of 1824 declared “flogging, torture, branding with a hot iron and all other cruel punishments to be abolished” (art. 179, XIX). In 1830, however, the Criminal Code was enacted, which provided for the application of the penalty of galleys. Pursuant to the provisions of its art. 44, it “subjects the defendants to walking with shoes on their feet and an iron chain, together or separately, and to be employed in public works in the province, where the crime was committed, at the disposal of the Government”. It goes without saying that this type of penalty, considered non-cruel by the 1830 legislator, actually only applied to slaves.

And there was more. Despite the express constitutional prohibition, the captives were, until the eve of the Abolition, more precisely until the Law of October 16, 1886, branded with red-hot iron, and regularly subject to the penalty of flogging. The same Criminal Code, in its art. 60, fixed a maximum of 50 (fifty) lashes per day for slaves. But the legal provision was never respected. It was common for the poor devil to suffer up to two hundred lashes in a single day. The aforementioned law was only voted in the Chamber of Deputies because, shortly before, two of four slaves sentenced to 300 lashes by a jury court in Paraíba do Sul died.

All this, not to mention crippling punishments like every broken tooth, severed finger or pierced breast.

Well, until Abolition, the judiciary bodies were never concerned with preventing the application of this unwritten law of slavery, if only because several magistrates were owners of farms, with a good number of slaves.[15]

The best example of this deliberate blindness of the judiciary regarding the abuses of the slave system was the permanence of the slave trade for many years, in a situation of blatant illegality.

A charter of January 26, 1818, issued by the Portuguese King while still in Brazil, in compliance with a treaty signed with England, determined the prohibition of the infamous trade under penalty of forfeiture of the slaves, who “will immediately be freed”. Once the country became independent, a new convention was signed with England, in 1826, by which trafficking carried out after three years of the exchange of ratifications would be equated with piracy. During the Regency, under pressure from the British, this prohibition was reiterated with the enactment of the Law of November 7, 1831. According to the content of that legal diploma, “all slaves who entered the territory or ports of Brazil, coming from outside". They would be re-exported “to any part of Africa”, and the “importers” subject to criminal prosecution; By “importers”, it is understood not only the captain, the master and the foreman of the vessel, but also the shipowners of the maritime expedition, as well as all those who “knowingly buy as slaves” people illegally brought or disembarked in Brazil.

As it was simply a “law for the English to see”, according to the consecrated expression, none of the penalties established therein was ever applied in court. It is estimated that no less than 1850 Africans were smuggled here as slaves, from the enactment of that legal diploma until 750 – when the Eusébio de Queiroz Law came into force, which reiterated the prohibition of the slave trade.

Even after the enactment of this last law, however, the criminal liability of slave traders and their cronies was no longer fully effective, given that the competence to judge such crimes was the jury court, whose members obviously submitted to the pressure from local potentates.[16] As Saint-Hilaire pointed out, “the fear of revenge, which is very easy in the interior, where the police are almost powerless, contributes to making the jurors more indulgent; they are driven to it by the very old habit of yielding to all solicitations (commitments)”. And he added that until 1847 the legislation in force encouraged the “excessive laziness” of jurors. [17]

It was not surprising, therefore, if, as a result of the absence of effective official controls over the performance of the judiciary, its honesty during the Empire left much to be desired. The intellectual mentors of the Constitution of March 24, 1824, undoubtedly concerned with the long tradition of venality of the judiciary body during the colonial period, decided to include two devices tending to extirpate it, if not reduce it to the maximum: Art. 156 – All Judges of Law and Officials of Justice are responsible for abuses of power and prevarications that they commit in the exercise of their Jobs; this responsibility will be made effective by regulatory law.

Art. 157 – For bribery, bribery, embezzlement and concussion, there will be popular action against them, which may be brought within a year and day by the plaintiff himself, or by any of the People, subject to the order of the Process obeyed by Law.

It is not known whether such constitutional determinations were fulfilled. What is known, however, is that some illustrious foreign travelers – and even Emperor D. Pedro II himself – made a point of highlighting the widespread corruption of the judiciary, which raged during the monarchical period.

In the report of your Journey through the Provinces of Rio de Janeiro and Minas Gerais, carried out in the second decade of the 18th century, Auguste de Saint-Hilaire comments that “in a country where a long period of slavery made, so to speak, corruption a kind of habit, magistrates, freed from any kind of surveillance, can with impunity give in to temptations.”[XNUMX]

At the same time, the trader John Luccock, who had come here after the Opening of the Ports, commenting on the custom of acquisition by neighbors, at public auction, of land pledged for non-payment of taxes, observes: “In this transaction, strictly observed the legal formalities and one has the illusion that the property was awarded to the highest bidder in the public auction; but in reality, favoritism prevails over justice and right, for there is none bold enough to raise the bid for a person of fortune and influence.” […] “In reality, it seems to be the rule that throughout Brazil justice is bought. This sentiment is so ingrained in custom and in the general way of thinking that no one considers it illegal [wrongly]; on the other hand, to protest against the practice of such a maxim would not only appear ridiculous, but would only serve to throw the complainant into complete ruin.”[19]

By the way, as Charles Darwin pointed out in his diary of the voyage of the Beagle,[20] on July 3, 1832, when he was staying in Brazil, the dishonesty of Justice was just part of the generalized corruption of the public service: “No matter the size of the accusations that may exist against a man of means, it is sure that in a short time he will be free. Everyone here can be bribed. A man can become a sailor or a doctor, or take up any other profession, if he can pay enough. It has been gravely asserted by Brazilians that the only fault they found in the English laws was that they could not perceive that the rich and respectable people had any advantage over the wretched and the poor.”

By all accounts, not even the highest court in the Empire remained free from corruption. In a statement to the Viscount of Sinimbu, D. Pedro II vented: “The first need of the judiciary is effective responsibility; and as long as some magistrates are not sent to jail, as, for example, certain well-known offenders of the Supreme Court of Justice, this end will not be achieved”.[21]

the republican period

The 1891 Constitution, when providing for the Judiciary, expressly established, but only for federal judges, the guarantee of tenure, also determining that “their salaries will be determined by law and cannot be reduced” (art. 57, caput and § 1). This norm suggested that these constitutional guarantees would not necessarily be applicable to the state judiciary; which luckily went away.

During the military governments of Deodoro and Floriano, there was great political pressure to submit the judgments of the new Federal Supreme Court to the final control power of the Senate. As the Political Charter had established, in line with the US Constitution, the competence of the Federal Senate to judge Supreme Court Justices in cases of impeachment, it was maintained that, even outside of this hypothesis, it would be up to that political body to review the decisions of the highest Court of Justice. This absurd opinion received a long and profound refutation by Rui Barbosa, in his speech to take office as a member of the Instituto dos Advogados, in the session of May 11, 1911.[22] She was, after all, abandoned.

Note, however, the disappointing conclusion of João Mangabeira on the performance of the Federal Supreme Court, from its institution until the beginning of the Getulist Estado Novo in 1937:[23] “The body that the Constitution had created for its supreme guard, and destined to contain, at the same time, the excesses of Congress and the violence of the Government, left it helpless in days of risk or terror, when, precisely, it most needed the loyalty, fidelity and courage of its defenders”.

It should also be noted that during the Old Republic, supported by federalist ideas, the de facto domination of local potentates (the famous “colonels”) over the magistrates increased enormously.

The 1934 Constitution, which was in force for only three years, added to the benefit of magistrates, in addition to lifetime and irreducible salaries, also the guarantee of irremovability, without making distinctions between federal and state judges or courts (art. 64). It provided, however, that “judges, even if on standby, cannot exercise any other public function, except teaching and the cases provided for in the Constitution”; adding that “the violation of this precept entails the loss of judicial office and all the corresponding advantages” (art. 65).

The 1946 Constitution established for judges in general, in addition to the three guarantees mentioned above, the determination that “retirement will be compulsory at the age of seventy or due to proven disability, and optional after thirty years of public service, counted in the form of the law” (art. 95).

Once the business-military exception regime was established with the 1964 coup d'état, the pro forma the effectiveness of the constitutional order, with the de facto suppression of individual freedoms and guarantees, as well as social rights. On December 13, 1968, the so-called Institutional Act nº 5 emasculated the judiciary, by decreeing the official suspension of the constitutional or legal guarantees of tenure, immovability and stability (art. 6), in addition to officializing the suspension of the habeas corpus “in cases of political crimes against national security, the economic and social order and the popular economy” (art. 10). The same applies to Civil Justice, since Military Justice, throughout the duration of the authoritarian regime, shamefully collaborated in the repression of political opponents.[24]

With the authoritarian regime extinguished, the current Federal Constitution was enacted in 1988, which regulated the Judiciary with much greater amplitude than all previous ones.

Incidentally, in the final phase of the authoritarian regime, exactly on March 14, 1979, Complementary Law No. 35 was enacted, establishing the Organic Law of the National Judiciary. Among other provisions, this law created the National Council for the Judiciary. In 1998, however, in a simple order by one of its Ministers, the Federal Supreme Court judged it extinct, due to the supervenience of that Complementary Law of the Federal Constitution of 1988, which had nothing to do with the aforementioned Council. It was, after all, resurrected, henceforth under the name of the National Council of Justice, by Constitutional Amendment nº 45, of December 8, 2004.

The creation of this body to control the judiciary undoubtedly met the need – which had been felt for a long time since the colonial period, as mentioned above – to establish a broader and more precise regime of responsibility for judges. Their reaction to the creation of the new body was, however, very negative from the outset. Even before its official publication, Amendment nº 45 was the object of a Direct Action of Unconstitutionality (ADI 3367), proposed by the Association of Brazilian Magistrates. The Federal Supreme Court, although unanimously rejecting the formal defect of unconstitutionality, decided only by majority to reject the action in its entirety.

Finally, as a significant event in the beginning of a change in the conservative mentality of our judges, the foundation on May 13, 1991 of the Association Judges for Democracy. Its statutory objectives are the defense of the democratic rule of law, based on the dignity of the human person, the internal democratization of the Judiciary, as well as the appreciation of the jurisdictional functions as an authentic public service, that is, service to the people.

The necessary reforms in the organization of the Judiciary

For all the above, it is clear that some reforms are needed in order to eliminate old defects in the functioning of justice institutions in our country.

Here are the ones that, in my opinion, seem most important.

(1) Expand and deepen the control instruments of the Judiciary

Undoubtedly, the creation of the National Council of Justice represented a step forward in perfecting the judiciary's control system. The current structure of the body, however, suffers from serious defects. First, it is not conveniently structured to carry out its duties throughout the national territory. The Council should have auxiliary units in each state of the federation.

Furthermore, the body is mostly made up of members of the judiciary subject to control. For this reason, it seems, the Council has systematically avoided, even in cases of serious crimes, applying to judges, especially members of higher courts, the penalty of dismissal provided for in art. 42, item VI, of the Organic Law of the National Judiciary.

It should also be noted that the members of the Federal Supreme Court are not subject to the control of the National Council for the Judiciary. In reality, moreover, the Ministers of our highest Court of Justice are not subject to any responsibility in the exercise of their functions, whether judicial or administrative.

They status of total irresponsibility was transposed from the North American Constitution, which, in this particular, provoked the severe criticism of Thomas Jefferson. “In intending to establish three departments, coordinated and independent, so that each of them can control the others and be controlled by them (“that they might check and balance one another”), the Constitution attributed to only one of them the right to prescribe rules for the action of the others, and it did so precisely in favor of the one who is not elected by the nation and remains independent of it. For experience has already shown that the impeachment established by the Constitution is not even a scarecrow”.[26]

Neither among us does this constitutional remedy inspire any kind of fear within the Federal Supreme Court. This, not to mention the fact that the annals of jurisprudence throughout the republican period do not record any case in which the magistrates of our highest Court were accused of criminal acts and, consequently, constrained to respond to criminal proceedings. Would we, however, have the audacity to state that facts similar to those that aroused the anger of Dom Pedro II in relation to the Supreme Court of Justice of the Empire never occurred in the post-monarchic period?

Now, it is extremely embarrassing to verify that not even compliance with the provisions of the Internal Regulations of the Federal Supreme Court can be imposed on its Ministers.

Take, for example, the norm of art. 337, § 2 of this Regulation, regarding the processing of motions for clarification: “Regardless of distribution or preparation, the petition will be addressed to the rapporteur of the judgment who, without any other formality, will submit it for judgment in the first session of the Panel or the Plenary, as the case may be”. Well then, in case of national and international repercussions, whatever the Argumentation of Non-compliance with Fundamental Precept nº 153 on the 1979 amnesty law, the rapporteur of the motion for clarification of the judgment published in May 2010, until the moment I write these lines – that is, for almost 5 (five) years! – despite being requested several times by the appellant, he did not submit the appeal to judgment.

Another example of blatant disrespect for the rule contained in the Internal Regulations of the Federal Supreme Court occurred during the judgment of Direct Action of Unconstitutionality No. 4.650, filed by the Federal Council of the Brazilian Bar Association, with the aim of corporate financing of electoral campaigns. In a plenary session held in April 2014, after the sixth vote for the merits of the action – that is, when the decision-making majority had already been reached – the Minister called to vote in sequence asked to see the case file, and until the beginning of the judicial year of 2015 had not yet presented them for further voting. Well, art. 134 of the Internal Regulations provides, textually: “If any of the Ministers requests to see the records, he must present them, for the voting to proceed, until the second subsequent ordinary session”.

The Federal Constitution provides (art. 5, item XXV) that “the law shall not exclude any injury or threat to a right from the appreciation of the Judiciary”. What is then not permitted by law, will it be tolerated individually by members of our highest Court of Justice? Apparently, behind the constitutional anthojo there is another order hidden, attributing to each Minister of the Supreme Court the discretionary power to suspend, indefinitely, the processing of an appeal, or the judgment already initiated on the merits of any cause, according to its own suggestion.

(2) Institute instruments of vertical control, internal and external, of the judiciary bodies.

Traditionally, in the system of so-called “representative democracies”, such as ours, state bodies are not obliged to account directly to the people for the unlawfulness of their acts or omissions.

An exception to this rule, among us, has been popular action. In the system of the 1824 Constitution, as seen, any citizen, as a procedural substitute for the people, could bring it against judges and court officials, “for bribery, bribery, embezzlement and concussion”. The Federal Constitution of 1891, however, did not reproduce this provision.

As of the 1934 Constitution (art. 114, item 38), any citizen became a legitimate party to claim in court the annulment or declaration of nullity of acts harmful to public property. The current Constitution extends the pertinence of this action to cases of damage to property in which the State participates, as well as “to administrative morality, the environment and the historical and cultural heritage” (art. 5, item LXXIII). But this action is inapplicable against acts or omissions of the judiciary bodies.

Undoubtedly, any citizen is allowed to denounce before the Federal Senate the Ministers of the Federal Supreme Court for the crimes of responsibility that they commit (Law nº 1.079, of 1950, art. 41). Such a denunciation, however, never occurred, nor can one imagine that, if one day it were made, the Senators of the Republic would have the courage to receive and process it.

Under these conditions, in order to cover the gaps in the field of vertical control of the members of the judiciary, it seems extremely recommendable to create public ombudsmen before the Justice bodies throughout the country, without exceptions. The ombudsmen, necessarily with a degree in law, would be elected by the people to exercise these functions for a specified period, and may be re-elected. They would have competence to open and preside over inquiries, when there was suspicion of violation by the magistrate of the duties and prohibitions expressed in the Organic Law of the National Judiciary (articles 35 and 36).

If the official investigations confirm the suspicion, the ombudsmen would propose, before the National Council of the Judiciary, the application of the sanctions foreseen therein. In the event that the investigation concludes that a crime has been committed, it would be up to the ombudsman to represent the Public Ministry for the opening of the appropriate criminal action.

Still at the level of vertical control, it is essential to express in the Constitution that the national Judiciary has the duty to comply with the decisions taken by the international courts of justice, when the Brazilian State officially accepted to submit to them.

Remember, by the way, the Case Gomes Lund and others v. Brazil (“Guerrilha do Araguaia”), in which our country was unanimously condemned. The Inter-American Court of Human Rights, issuing the decision on November 26, 2010, decided that “the provisions of the Brazilian Amnesty Law, which prevent the investigation and sanction of serious human rights violations, are incompatible with the American Convention, lack legal effects and cannot continue to represent an obstacle to the investigation of the facts of this case, nor to the identification and punishment of those responsible, nor can they have the same or similar impact on other cases of serious violations of human rights enshrined in the American Convention. , occurred in Brazil”.

Well, several Brazilian judiciary bodies, starting with the Federal Supreme Court, have refused to comply with this international decision; which led a political party to propose, on May 15, 2014, Arguição de Descumprimento de Preceito Fundamental nº 320, which received a largely favorable opinion from the Attorney General's Office. The non-enforcement of the aforementioned conviction was, after all, officially recognized by the Inter-American Court of Human Rights itself, in a decision of October 17, 2014.

(3) Change at the top of the judicial system

It should be remembered, in this topic, the Proposal for Constitutional Amendment No. 275/2013, currently being processed in the Chamber of Deputies. Its main object is the transformation of the Federal Supreme Court into a Constitutional Court, modifying its jurisdiction and the way in which its Justices are appointed. In addition, the PEC in question determines the increase in the number of Justices that make up the Superior Court of Justice, as well as expanding its competence.

The organization of the Federal Supreme Court, in fact, suffers from serious defects, both in the form of its composition and in terms of the scope of its competence. The reasons justifying the mentioned Proposal for Constitutional Amendment are reproduced below.

In all our republican Constitutions, it was determined, according to the North American model, that the appointment of Ministers of the Federal Supreme Court be made by the President of the Republic, with the approval of the Federal Senate.

In the United States, senatorial control works properly, with the disapproval of twelve people appointed by the Head of State to the Supreme Court. Sometimes, when the Head of State realizes that the person chosen by him will not be approved by the Senate, he withdraws the nomination.

In Brazil, on the contrary, until today the Senate has only rejected one nomination to the Federal Supreme Court. The unusual fact occurred in the troubled period of the beginning of the Republic, when the arbitrary military interventions enacted by Floriano Peixoto in several states led to the acceptance, by the Supreme Court, of the extensive doctrine of habeas corpus, supported by Rui Barbosa. Outraged, the Marshal President decided, in retaliation, to appoint Doctor Barata Ribeiro, who was his personal doctor, to fill a vacancy in the highest Court of Justice in the country. Literally, there was no violation of the constitutional text, as the 1891 Charter required that citizens appointed to the Federal Supreme Court had “remarkable knowledge and reputation”; what no one could deny to Dr. Barata Ribeiro. It was only through the Constitutional Amendment of 1926, and because of that episode, that it was decided to add the adjective “legal” to the expression “remarkable knowledge”.

But this additive qualification did not change the practice of appointments to the Federal Supreme Court. The absolute hegemony of the Head of State in fulfilling this constitutional attribution continues to this day. This does not mean that the people appointed are not necessarily up to the task; but the fact is that, this choice being made solely by the Head of State, he easily gives in to his personal feelings in his final decision, in addition to suffering all sorts of pressure, due to the multiplicity of informal candidacies.

With regard to the jurisdiction of the Federal Supreme Court, there is another serious deficiency. The Federal Constitution of 1988 assigned it, as its main objective, “guarding the Constitution” (art. 102). But the achievement of this greater purpose is simply obliterated by the accumulation of attributions to judge cases of pure individual interest or private groups, with no constitutional relevance.

In order to correct these serious defects in the functioning of the Federal Supreme Court, PEC nº 275/2013 determines that it be transformed into an authentic Constitutional Court, with an increase in the number of its members and a reduction in its competence.

The new Court would thus be composed of 15 (fifteen) Ministers,[27] appointed by the President of the National Congress, after approval of their names by an absolute majority of the members of the Chamber of Deputies and the Federal Senate, based on triple lists of candidates from the judiciary, the Public Prosecutor's Office and the legal profession. Such lists would be prepared, respectively, by the National Council of Justice, the National Council of the Public Ministry and the Federal Council of the Brazilian Bar Association.

Transiently, the current Ministers of the Federal Supreme Court would form part of the Constitutional Court, with the addition of four new members, appointed as indicated above. The new appointment system would make it far more difficult than it is today to successfully exercise any LOBBY in favor of a particular candidacy; in addition to establishing, from the outset, a selection of candidates according to presumed legal knowledge.

Under the terms of PEC nº 275/2013, the jurisdiction of the Constitutional Court would be limited to cases that directly concern the interpretation and application of the Major Law, transferring all others to the jurisdiction of the Superior Court of Justice.

According to the Proposal in focus, the Superior Court of Justice would have a composition similar to that of the Constitutional Court, but would henceforth have a minimum number of 60 (sixty) Ministers; that is, almost twice the amount currently fixed in the Constitution. The current Ministers of the Superior Court of Justice would be maintained, providing for the appointment of future Ministers in the form of the provisions of art. 104 of the Federal Constitution, with the new wording contained in the proposal.


In a famous passage from The Spirit of Laws,[28] Montesquieu, in accepting John Locke's teaching regarding the necessary tripartition of powers in political society, concludes: “Des trois puissances dont nous avons parlé, celle de juger est en quelque fazn nulle”. The assertion seems blatantly contradictory, because how to recognize in the Judiciary a State Power, and at the same time deny it all power?

In fact, the verbal incongruence is overcome when establishing the distinction, which Montesquieu himself made, between statutory power (the faculty of statues) and the impeding power (the faculty of empêcher).[29] In Rome, for example, the tribunes of the plebs had no power to make laws or order the performance of juridical acts; but tribunicia potestas (always feared by the patriciate) included, among other powers, that of vetoing any act by a holder of public office, contrary to the interests of the plebs.

Based on this conceptual distinction, it is clear from the outset that the Judiciary has no statutory power to create general norms or organize public services. But it has, to the highest degree, the impeding power to correct and repair, not only the excesses of other public bodies (and also of individuals endowed with power in society), but also, in theory, to supply the unconstitutional omissions of state bodies in the exercise of its functions.

Now, for this to fully succeed, it is essential to establish an effective system of control of the judiciary bodies, as highlighted above. Here again, it is important to remember the wise lesson of Montesquieu:[30] “It is an eternal experience that every man who has power” – and we should add, every state body endowed with power, even constitutional power – “is led to abuse it; he goes as far as he finds limits”.

Will we one day know how to meet this fundamental requirement for the true institution of the rule of law in our country?

*Fabio Konder Comparato Professor Emeritus at the Faculty of Law of the University of São Paulo, Doctor Honoris Causa of the University of Coimbra.

Study in honor of Professor and Magistrate Enrique Ricardo Lewandowski.


[1] See, by the way, the study by Joseph R. Strayer, On the Origins of the Modern State, Princeton University Press, 1970, pp. 38 and ff.

[2] Formation of Contemporary Brazil, first edition in 1942.

[3] Cf. Fernand Braudel, The dynamics of capitalism, Flammarion, Paris, 2008, p. 68.

[4] On this whole subject, cf. CR Boxer, The Golden Age of Brazil – 1695/1750, University of California Press, 1962, pp. 209, 306 and ff.

[5] Cf. Stuart B. Schwartz, Sovereignty and Society in Colonial Brazil – The High Court of Bahia and its Judges, 1609-1751, University of California Press, 1973, pp. 257/258; 275 and ss. In 2011, the Portuguese translation of this work was published by Companhia das Letras.

[6] The Court of Appeal of Bahia was inaugurated in 1609 and operated until 1751, the year in which the Court of Appeal of Rio de Janeiro was created.

[7] Stuart B. Schwartz, op. cit., p. 272.

[8] Cf. Eduardo Bueno, Dirty recordin History of Brazil for the Occupation, organized by Luciano Figueiredo, Casa da Palavra, 2013, pp. 254/255.

[8] Quoted by Braz do Amaral, in notes and comments on Luís dos Santos Vilhena's letters, edited under the title Bahia in the XNUMXth Century, vol. II, Editora Itapuã – Bahia, 1969, pp. 358/359.

[9] Quoted by Braz do Amaral, in notes and comments on Luís dos Santos Vilhena's letters, edited under the title Bahia in the XNUMXth Century, vol. II, Editora Itapuã – Bahia, 1969, pp. 358/359.

[10] Marquis of Lavradio, Letters from Bahia 1768-1769, Ministry of Justice, National Archives, 1972, p. 20.

[11] apud Arno Wehling and Maria José Wehling, Law and Justice in Colonial Brazil – The Court of Appeal of Rio de Janeiro (1751-1808), Renovar (Rio de Janeiro, São Paulo and Recife), 2004, p. 310.

[12] Preached in São Luís do Maranhão in 1654.

[13] General History of Brazilian Civilization, II – Monarchical Brazil, 5 From the Empire to the Republic, São Paulo (European Book Diffusion), 1972, p. 21.

[14] apud Joaquim Nabuco, An Empire Statesman, Rio de Janeiro (Editora Nova Aguilar), 1975, p. 233.

[15] See, in this regard, the Memoirs of an Imperial Magistrate, by Conselheiro Albino José Barbosa de Oliveira (Companhia Editora Nacional, Coleção Brasiliana vol. 231, 1943, pp. 246 et seq.), who was judge in two courts of appeal and became, at the end of his life, counselor of the Supreme Court of Justice.

[16] This is why old Nabuco, in a speech in the Chamber, proposed suppressing the competence of the jury to judge such crimes. Cf. Joaquim Nabuco, My information, Editora 34, 2012, pp. 171/172.

[17] Voyage dans les Provinces de Saint-Paul et de Sainte-Catherine, first volume, Paris (Arthus Bertrand, Libraire-Éditeur), 1851, p. 138.

[18] Work published by Editora Itatiaia, in collaboration with the University of São Paulo Publisher, 1975, p. 157.

[19] Notes on Rio de Janeiro and Southern Parts of Brazil, Publisher of the University of São Paulo – Livraria Itatiaia Editora Ltda., 1975, p. 321.

[20] The Beagle Diary, Editora UFPR, 2006, p. 100.

[21] apud José Murilo de Carvalho, D. Pedro II – To be or not to be, Companhia das Letras, 2007, p. 83.

[22] Rui Barbosa, Selected Writings and Speeches, Rio de Janeiro, Companhia Aguilar Editora, 1966, pp. 548 and ss.

[23] Rui, The Statesman of the Republic, Brazilian Documents Collection nº 40, Livraria José Olympio Editora, 1943, p.78.

[24] Rui, The Statesman of the Republic, Brazilian Documents Collection nº 40, Livraria José Olympio Editora, 1943, p.78.

[25] See the study by Anthony W. Pereira, Political (In)Justice – Authoritarianism and the Rule of Law in Brazil, Chile, and Argentina, University of Pittsburgh Press, 2005; whose Brazilian edition was published under the title Dictatorship and Repression – Authoritarianism and the Rule of Law in Brazil, Chile and Argentina, Paz e Terra, 2010. In this study, it is emphasized that, while in Chile and Argentina the Judiciary was clearly removed from the repressive system, in our country the Military Justice bodies had no difficulty in collaborating with repression.

[26] Thomas Jefferson Political Writings, Cambridge University Press, 1999, p.

[27] It should be remembered that the Federal Constitution of 1891, when creating the Federal Supreme Court, determined that it should be composed of “fifteen judges” (art. 56).

[28] Book XI, chapter 6.

[29] Ibid.

[30] From the Spirit of Laws, Book XI, Chapter IV.

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