A Conversation with the President of the Brazilian Supreme Court

Ben Raderstorf / Inter-American Dialogue

Among a number of weak political and social organizations, the Brazilian judicial system stands out as the most effective and trustworthy of the country’s institutions. Because Brazilian courts are highly autonomous, they have the unique capability to independently evaluate the constitutionality of actions taken by the other branches of government. This function is particularly important when considering the deep and widespread roots of corruption within Brazil’s ruling class.  In light of Rousseff’s single-digit approval rating, the struggling Brazilian economy, and the emergence of new corruption allegations, the Brazilian public agrees that change is necessary, and the success of the judiciary provides an important foundation for reform.

On October 19th 2015, Peter Hakim, president emeritus of the Inter-American Dialogue, was joined by special guest Minister Ricardo Lewandowski, President of the Brazilian Supreme Court and National Justice Council, for a conversation on the role of the judiciary in the promotion of democratic practices. Lewandowski opened the discussion with a summary of the structure of the Brazilian judicial system, which is comprised by federal and state courts. According to Lewandowski, the court system allows each state to organize their own judiciary structure as long as it correlates with the guidelines for the judiciary as defined by the Brazilian Constitution. This allows each state to effectively carry out its own judicial tasks, while preserving a sense of unity regarding the process.

As president of the Supreme Court, Lewandowski operates as the leader of the judicial branch. The Brazilian Supreme Court is modeled after the US Supreme Court, and acts as the “last resort of any controversy.” The eleven justices who serve on the Supreme Court are civilians with “remarkable legal knowledge,” who are nominated by the Brazilian President and must be confirmed by the Brazilian Senate. The Court enjoys the power of binding judicial review on constitutional cases and government activity. Extradition, matters of international importance, and conflicts within Brazil’s court structure also fall under the Supreme Court’s jurisdiction.

As Lewandowski notes, “no freedom can truly exist without justice.” From his perspective, Brazil has seen positive progress toward the elimination of corruption. Judges are able to decide the outcome of cases without external influence, which has allowed a large number of corruption cases to surface against the elite. The judicial reform in 2004 established the National Justice Council, which hears complaints against judges and the justice system and publishes judicial statistics and indicators every six months. The National Justice Council “ensure[s] the independence of the judiciary,” and is “proof of the country’s commitment” to judicial independence. To stress his point, Lewandowski used Petrobras as an example, saying that “No one is intervening in the situation…not even I, as President of the Supreme Court, could make a phone call and say please stop the investigation.” This independence itself is something new. In Lewandowski’s words, “with the new constitution we have to follow due process of law.” While it takes more time, “it is a revolution because the judiciary is taking care of scandals.” When asked about the ongoing Petrobras investigations, Lewandowski responded, “I have no doubt that everything will surface and come to the daylight.”

Despite the success of the Brazilian judiciary, the system also faces endemic challenges that must be addressed resourcefully. Today, countless cases remain unresolved as a result of an extreme “backlog.” When it comes to dispute resolution, demand outpaces supply. However, the judiciary is responding effectively. As of spring of 2016, those wishing to file a lawsuit must first complete a process exploring alternative methods of dispute settlement involving “conciliation, mediation, arbitration.” This policy has the potential to greatly decrease the number of cases that appear in court, while still providing adequate solutions to conflicts through consultation and compromise. The judiciary also plans to offer “digital resolutions for lawsuits,” which will increase access to justice and improve the efficiency of the judiciary.

Recently, the judicial system has also been forced to respond to extreme overcrowding in Brazilian prisons, which operate at levels far beyond capacity. As a result, there have been an increased number of violent incidents and instances of human rights violations within punitive facilities. In an attempt to minimize the number of prisoners awaiting trial within prisons, the National Justice Council has introduced the Custody Hearing Project. This initiative will require that all persons detained in Brazil appear before a judge within 24 hours of their arrest. This judge will determine whether the person should be released immediately, released under conditions, or imprisoned while they await their trial. Judges will also be instructed to look for signs of abuse to ensure that the detainees are treated properly during their arrests. This project is designed to ease the pressure on prisons though a decrease in the number of prisoners, and will save Brazil billions of Reals annually. The OAS has suggested that the model of the Custody Hearing Project could be applicable to other countries in Latin America as well.

The presence of a fully independent judiciary in Brazil is an achievement in and of itself. Hopefully, the judicial branch will continue to positively influence the direction of politics in Brazil and serve as a model for establishing other independent institutions. However, Brazil must look forward to the next phase of reform.  Lewandowski stated without hesitation that “political reform is the mother of all reforms in Brazil.” He noted that 28 out of 32 political parties have a presence in the Brazilian Congress, which has negatively impacted the effectiveness of the legislature. Lewandowski believes that “a democratic country does not have to have more than five political parties.” While the Supreme Court ruled that limits on the number of political parties are unconstitutional a few years ago, Lewandowski hopes that the issue will be revisited in the future. Though he did not provide specifics, Lewandowski also mentioned the possibility of electoral reform as a step that Brazil should also consider. With an independent judiciary already in place as “a pillar for democracy,” Brazil has reason to be optimistic moving forward, despite the current political uncertainty.

Watch the full recording of this event here

 


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