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.

In 2003, the police found a judge from the Superior Court of Justice (STJ), Brazil 's second-highest court, accepting bribes to give writs of habeas corpus to drug-dealers. Four years earlier, in 1999, a state judge from Mato Grosso was killed only six weeks after denouncing other judges for accepting bribes from drug-dealers in exchange for a reduction in their criminal sentences.

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.

The final 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 Rio de Janeiro state, Mello Porto, had authorised projects at his court at costs that were 340 percent above the market rates.

Nepotism

Brazil has laws forbidding the practice of nepotism in all its governmental branches. And yet judges constantly abuse their position for the benefit of friends and relatives. People suspect that they illegally bypass the rigorous entrance exams for a judicial career by filling positions with unqualified family members. Although such schemes are extremely hard to uncover, there are several other pieces of evidence to indicate that nepotism is indeed a widely accepted practice amongst Brazilian judges.

Indeed, examples of nepotism taking place in the judiciary are reflective of the absurd. In 1999, audits from Paraíba, one of Brazil 's poorest states, discovered that 160 out of the 565 state-court employees were relatives of judges. The Chief Justice of Paraíba's High Court had employed seven of his adult children at that courthouse.

Unfortunately, he is by no means the champion of nepotism in Brazil 's judiciary. The undisputed champion is instead a federal labour judge from Paraná state who in 2002 had no less than 63 relatives employed in his courthouse, including his wife and four adult children.

This being the case, one may suggest that what Brazil really needs is just a 'tougher' law against nepotism in the courts. But such a law already exists at federal-court level.

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. ( Monash University ) is a Law Lecturer at Murdoch University , Western Australia . This article is based on a longer paper presented at a seminar organised by Murdoch Law School on April 28, 2008.

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.

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Dr Augusto Zimmermann, LLB, LLM, PhD

Law Lecturer

Law/2.022, School of Law

Murdoch University

South Street

Murdoch WA 6150

Australia