No Law Will Make The Brazilian Judiciary Abide by the Laws
By Augusto Zimmermann
Tuesday, 29 April 2008
Since it was enacted in October 1988, the Brazilian Constitution has developed judicial independence and offered to the population a broader access to the courts. Over these last two decades, however, the level of distrust in the Brazilian judiciary has paradoxically increased, and judges have been constantly involved in practices of corruption.
As evidence of this, in 1999, an opinion poll conducted by Garibaldi-Fernandez revealed that 74 percent of Brazilians disagreed with the opinion that judges normally punish the guilty and let the innocent go free. Moreover, no less than 86 percent said that some people, particularly judges and politicians, are never adequately punished for breaking the law.
The Brazilian judiciary has been so rife with corruption that years could be spent writing about them. The media has regularly reported corruption scandals among judges who are accused of participation in a vast range of corrupt activities, from diverting public funds to passing lenient sentences on dangerous criminals in return for bribes. For example, some judges and lawyers have been discovered participating in huge schemes to defraud the social-security agency by means of granting excessive awards to claimants.
the police found a judge from the Superior Court of Justice (STJ),
As another example, in February 2005, the federal police (PF) arrested the wife and the mother-in-law of the Chief Justice of the Regional Electoral Court (TRE) in Roraima state. They were both leading a criminal organization which, among other things, forged extra-time payments to court employees. They were using the husband's (and son-in law's) position to threaten with dismissal anyone who refused to provide them with at least half of their wages.
On the issue of budget: the 1988 Constitution gives the judiciary the power to prepare its own budget. Unfortunately, judges have not administered the judicial funds properly. In 1995, the new building of the STJ, a courthouse for just 33 magistrates, was finished at a cost of US$ 170 million. Within the building there were far more empty rooms than used ones. The building has an indoor theatre, exercise rooms, two restaurants, a ballroom, a bar, and a swimming pool.
One might suspect that judges sanction the excessive costs of constructing and furbishing courthouses in order to obtain a share of the proceeds. Indeed, a 1999 fact-finding enquiry carried out by the National Congress found at least two cases to endorse such suspicion.
Although judges had strongly opposed the congressional enquiry, declaring that elected politicians could not meddle in judicial affairs, the enquiry went ahead and found, among other things, that the then Federal Labour Court (TRT) Chief Justice in São Paulo state, Nicolau dos Santos Neves, became a millionaire by constructing a new courthouse for his labour court.
cost of the TRT courthouse was at least ten times above the market rates. This
enquiry also found that the Federal Labour Court
(TRT) Chief Justice in
examples of nepotism taking place in the judiciary are reflective of the
absurd. In 1999, audits from Paraíba, one of
he is by no means the champion of nepotism in
the case, one may suggest that what
In 1997, the National Congress enacted a legislation prohibiting all federal judges from employing relatives, including in-laws. Before this anti-nepotism bill was enacted, judges staged a work-stoppage in protest, arguing that this would violate Article 37 of the Constitution which states that federal employees can hire subordinates of personal confidence.
Although their protest failed to derail the enactment of the legislation, judges decided not to contest the measure on legal grounds. Instead, they have since been cheating the law by engaging in the quid pro quo of naming the relatives of other judges to fill positions on their own staff and vice-versa.
Indeed, new legislation alone will not solve the historical trouble with the behaviour of some Brazilian judges. This problem in the Brazilian judiciary has existed for many centuries and is therefore rooted in certain extra-legal patterns of socio-cultural behaviour. As such, they cannot be modified merely by positive law: a change in mentality is also required.
Dr. Augusto Zimmermann, LL.B., LL.M., Ph.D. (
For a complete analysis of the Brazilian Judiciary, Dr Zimmermann recommends his academic paper "How Brazilian Judges Undermine the Rule of Law: A Critical Appraisal" (2008) 11 International Trade and Business Law Review 179.
Dr Augusto Zimmermann, LLB, LLM, PhD