Blog of the International Journal of Constitutional Law

The Brazilian Supreme Court: Between Activism and Judicial Responsibility

–Claudia Maria Barbosa, Pontifical Catholic University of Paraná, Brazil

On December 17, 2012 the Brazilian Federal Supreme Court, (Supremo Tribunal Federal, STF), concluded the hearings of Criminal Case no. 470/2007, known as Mensalão (“Big Monthly”) – a criminal scheme to buy political support in Congress involving 37 accused, among them ministers from former President Lula’s government, legislators, law-makers, businessmen and bankers. The main accusation was that politicians from coalition parties were given monthly payments to support the minority government led by the Worker’s Party (PT). The defendants faced allegations of corruption, money-laundering, multiple misusing of public funds and embezzlement. At the end of four months of hearings and 53 Court sessions, 25 of the accused were found guilty and were handed sentences ranging from 4 to 40 years imprisonment and were also fined. Among the convicted were José Dirceu, who was President Lula’s Office Chief of Staff, Worker’s Party head Jose Genoino, and its treasurer Delubio Soares in addition to seven congressmen, three of whom are still in office.

Interestingly, the condemnation of powerful politicians took place within the ordinary democratic process and may reflect the consolidation of political institutions in contemporary Brazil, as well as the relative independence of the judiciary from the executive and legislative branches. The trial also reflected a central political role for the Supreme Court – a phenomenon that is not typical in the Brazilian judicial tradition, and is inconsistent with the relative high degree of political dependence of some of the Justices.

Lower level judges in Brazil are nominated by public tender and have life tenure. Supreme Court Justices are called Ministers and appointed through a different nomination process, which is largely controlled by the President and includes confirmation by the Senate. Once nominated, they have life tenure, but retirement is mandatory at 70 years of age. Despite its apparent similarity to the U.S. nomination process, the nomination in Brazil results largely from a personal choice of the President. The political background of the candidates is disregarded and their position concerning issues such as death penalty, abortion, same sex marriage, as well as discussions on the role of the State in the citizen’s life or their political opinions are generally unknown at the time of appointment.

At the Mensalão trial, 8 of the 11 Ministers of the Supreme Court were appointed by President Lula and his political successor, the current President Dilma Rousseff. Thus, the history of the Court and the supposed loyalty or gratitude of the justices to Lula suggested that the accused would be acquitted. The result, however, surprised most observers and was applauded by society in general and in particular by the mainstream media. Some jurists, however, were concerned with the way by which some of the guilty verdicts were reached. They saw in the trial an expression of judicialized politics, and especially an unwarranted increase in the power of the STF.

The judgment that symbolically represents the beginning of the end of impunity for white-collar criminals in Brazil, paradoxically has lit the alert signal to legislators, lawyers, professors and sectors of Brazilian society that, in general, have been applauding the judicial activism.

The Constitution promulgated in 1988 marked the end of more than two decades of dictatorship and the beginning of what was called the democratization of Brazil. It guaranteed a broad list of fundamental rights covering civil liberties, political rights, collective rights and social rights, the realization of which has been a challenge for the government and the Brazilian society in general. In recent years there has been a marked improvement in the living conditions of the population, but there is still an uneasy balance between the economic possibilities of the state and people’s needs. This fact translated into legal terms opposes two principles, both enforceable: the “existential minimum” imported from German constitutional theory, and the “reserve as possible”. The first means the least material asset needed to assure minimum standards of human existence, while the second takes into account the State’s budgetary constraints. Therefore, judicial decisions in individual cases concerning warranty and effectiveness of social rights such as health care, education, housing and social assistance are often welcomed by society who sees the judge as the authority that can ensure rights sometimes denied by the government.

Gradually, more and more organized groups are turning to courts to obtain positive benefits from the State, especially in matters related to social security and health rights; in Brazil these are extended to all the people through a universal system. The judiciary has practically taken upon itself the political responsibility of making these open-ended constitutional rights real and by doing that, it may be seen as interfering in public policy processes driven by elected government. Nevertheless, the activism of the judiciary in disputes concerning social issues is commonly seen in a positive light as a progressive measure towards the realization of human dignity. From that derives the judiciary’s public legitimacy.

The activism revealed in the case of Mensalão, however, revealed some inconsistency in the interpretation some of the defendants’ criminal due process rights, contrarily to the Court position thus far – a development that worries some observers.

As the highest court, STF is entrusted with the responsibility of safeguarding the Constitution, as well as functioning as a court of review. It also has original jurisdiction to try authorities with the privileged forum, such as Congressmen. At the Mensalão trial, there were 38 defendants, including 7 congressmen, and so all the offenders were tried on that Court. The defense attorneys claimed that the non-parliamentarian offenders should not be tried on the Supreme Court, but their argument was disregarded. So in that specific case, the Supreme Court acted at once as an ordinary court and a constitutional one, in issues relating to constitutionally guaranteed rights.

Unlike previous situations involving top politicians in corruption cases, the mainstream media, which has often taken an anti-Lula government position, has pushed for the conviction of those involved, even before the trial begun. Citizens, tired of the impunity, also expected a conviction, regardless of the evidence. The trial became a media spectacle and, as all the sessions of the Court are broadcast on television, it was watched live by the public, as if it was a soap opera; it was also commented by the press on a daily basis. The Justice-rapporteur, who voted to convict the defendants, turned into a celebrity and national hero and his name was included in a poll for future presidency. The Justice-reviewer, who disagreed with his colleague, became the national villain, and Justices who elected to acquit some of the defendants on the grounds of lack of evidence were labeled as “pro-government”.

The trial was seen as a key test of Brazil’s ability to hold its politicians accountable for corruption. However, the Supreme Court, in exercising its independent power, has become hostage to the media, which had already convicted all of the accused at the outset.

In the Mensalão case, the Supreme Court rejected defense argument of a “dismemberment of the evidence”; the Court modified its previous rules on the matter, and adopted a useful, yet possibly unauthorized, version of Roxin’s “theory of perpetration” to justify that trace of evidence, and not evidence itself, is enough to find an accused guilty as charged. The Court introduced some innovative ways to calculate sentences and stripped three convicted congressmen of their seats, thereby interfering with the prerogative of the Chamber of Deputies.

Experts suspect that the Supreme Court change in position reveals a predisposition to convict top politicians from the former President Lula’s government and, specially, from the Workers’ Party members. They do not believe the same rigor is likely to be used in future cases, including another Mensalão trial that involves authorities of the main opposition party. As Brazil does not follow the stare decisis doctrine, there is much uncertainty in this regard. Should the Court go back to its previous positions, it will confirm the criticism from some jurists. That would mean that some justices left their robes and have taken upon themselves the role of the political opposition, judging the government instead of the defendants.

Different from the activism concerning social rights that can find the basis of the principle of human dignity, political activism is tied to political responsibility, and does not fit for the Court. Without the popular vote and without the force of arms, the legitimacy of the judiciary lies in the trust that society has in its judges. After its ruling in what is arguably the biggest trial in Brazil’s political history, it is up to the Supreme Court to legitimize or “normalize” the decision taken by following the same rigor in future cases. Otherwise, it would be evident that the Court has made a politicized statement that may make the challenge of consolidating the rule of law in Brazil a considerably harder one.


5 responses to “The Brazilian Supreme Court: Between Activism and Judicial Responsibility”

  1. Richard Albert Avatar

    This is fascinating. I’ve learned a great deal from this post. These recent developments in Brazil bring to mind the role of the Indian Supreme Court, which polices political corruption in much the same way that you describe the role of the Brazilian Supreme Court. The Indian Supreme Court seems to enjoy the public legitimacy that you regard as necessary for enforcing positive social rights and policing political corruption. I wonder if anyone has written about Brazil and Indian in comparative perspective. In any event, I’ll be following Brazilian constitutional politics closely in the weeks ahead.

    1. dlandau Avatar

      Agree with Richard, really an interesting post that raises lots of neat questions. My own point of comparison would be Colombia — the Colombian Constitutional Court like the Brazilian STF makes large-scale interventions into social rights as well as political cases. And it also thrives on and clearly seeks the acclaim of the general public and middle-class groups. A difference though seems to be in vision or sense of role — the Colombian Court seems to have a fairly clear sense of what it is supposed to be doing in the political order, I’m less certain in the Brazilian case. I’m reminded of Matthew Taylor’s description of the Brazilian system as kind of “high impact, low functionality.” It makes spectacular interventions, but does so sporadically and somewhat unpredictably.

    2. Claudia Barbosa Avatar
      Claudia Barbosa

      The geopolitical position that India and Brazil occupy today in the world indicates the usefulness of comparative studies, but unfortunately I know of no study related to the role of the judiciary so far. If on one hand the role of supreme courts toward the protection and defense of human rights and social rights is positive, on the other hand we shall be concerned about the excess of political power that judges currently holds, especially since there are no efficient mechanisms to control themselves and they have neither political responsibility. In Brazil the Supreme Court has the final word in all matters regarding constitutional rights. If there is no control over the deliberative process, our big concern will soon be seeking an answer to the question: Who guardian the guardians?

  2. Richard Albert Avatar

    Yes, that is the ultimate question: who oversees the overseer? Colonial Pennsylvania and New York had an answer: the former had an elected Council of Censors and the former had an appointed/elected Council of Revision, both of which were responsible for reviewing the judgments of the courts of last resort in the jurisdiction. If we are ultimately concerned with popular control or accountability of constitutional or supreme courts, this might be an idea worth revisiting.

  3. Raphael Peixoto Avatar
    Raphael Peixoto

    The post is excellent. Indeed, the role of the Supreme Court has changed in the last ten years. The major concern is with excessive judicialization of politics and the use of theories that emphasize the subjective character of judges. A particular concern in the AP 470 (mensalão) was the question of the evidence and the correct application of “domain of the fact” theory (Claus Roxin).

    On the subject, I refer the great book of Juliano Zaiden Benvindo (“On the limits of constitutional adjudication: desconstructing balancing and judicial ativism: Brazil and Germany”), professor at the University of Brasilia (Brazil). The book is his doctoral thesis at the University of Berlin / Brasília.

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