RIGHTS-BRAZIL: Judicial Reform Sways Between Economics and Law

By Mario Osava Reprint | | Print |

Mario Osava

RIO DE JANEIRO, Feb 1 2000 (IPS) - The economic objectives the World Bank has established for Brazil could spoil the Judicial branch reforms currently under consideration in the national Congress, warns a judges organisation.

The World Bank’s recommendations, contained in its 1996 Technical Document 319, emphasise reforms heavy on economic efficiency and “development of the private sector,” which constitutes a “deviation” from legal authority, according to the Magistrates Association of Brazil (AMB).

The constitutional amendment being debated in Congress is part of a new generation of adjustments prescribed by international financial organisations, which also involve political, judicial and social institutions.

But the amendment is also a response to the nation’s long-held aspirations for a more efficient justice system. For many years judges and lawyers have been demanding structural changes for the country’s legal system, which is unable to handle the sharp increase in caseloads.

The Executive and Judicial branches’ goals are divergent and could lead to the same types of conflicts now being heard in the Chamber of Deputies as legislators debate the reform amendment.

Adopting economic development as the “fundamental axis” of legal reform is a mistake, according to Luiz Fernando Ribeiro de Carvalho, who headed the AMB until last year and is now following the legislative debates on behalf of the 12,000 judges on the association’s roster.

The World Bank document defines the creation of “a propitious environment (for) trade, finance and investment” as an objective of the changes also meant to improve the quality and efficiency of justice systems throughout Latin American and the Caribbean.

The AMB disagrees with the World Bank vision and defends “the guarantees of fundamental rights and values established in the Constitution” as the desired end of any legal reforms, affirmed Ribeiro de Carvalho, who also serves as appellate court judge in Rio de Janeiro.

The obligation of the Judicial branch to “make rights effective” for the people has created tensions between legal authorities and economic interests, acknowledged the judge.

A few months ago, for example, Social Security minister Waldeck Ornellas accused Federal Supreme Court president Carlos Velloso of discouraging foreign investment in Brazil.

Velloso had acknowledged the possibility that the Supreme Court might rule against a constitutional amendment the government proposed for charging retired public employees taxes on their pensions.

Ultimately, the amendment would affect Brazil’s fiscal adjustment agreement with the International Monetary Fund (IMF), considered essential for re-establishing international confidence in the nation’s economy.

The judicial reform backed by the government follows the World Bank’s “neo-liberal” lines, which are also being imposed in Argentina, Chile, Venezuela and other Latin American countries, according to Caio Teixeira, co-ordinator of the National Federation of Federal Justice Workers.

Reducing the structure and reach of labour laws and creating private mechanisms to resolve disputes favour capital and are measures that tend to be approved (by Congress), lamented the unionist.

The need for a justice system that is not famed for its slowness is, however, a point of consensus. The number of new cases initiated annually jumped from 350,000 in 1988 to 8.5 million last year, according to Ribeiro de Carvalho. This 25-fold increase was not accompanied by a similar increase in the number of judges, which merely doubled.

In the first half of 1999, 40,000 cases reached the Supreme Court, but nearly 80 percent were “repeat petitions” of cases identical to those the maximum tribunal had already ruled on, emphasised the court’s president Velloso.

Requiring the lower courts to adhere to the Supreme Court’s rulings in similar cases – in other words, to follow legal precedent – would prevent the accumulation of petitions and appeals that bog down the justice system, he argued.

Ribeiro de Carvalho regretted that the Chamber of Deputies had approved the government-proposed reforms, instead of the one put forth by the AMB and the Board of Attorneys, which would limit legal appeals but allow the lower courts to issue dissenting opinions, subject to review in the higher courts.

Measures the legislative Congress is likely to approve tend to concentrate legal decisions in the upper ranks of the Judicial branch, tying the hands of justice and impeding a “positive evolution” based on innovation from the grassroots, affirmed Ribeiro de Carvalho.

In addition, this concentration in the Judiciary’s upper echelons serves the interests of capital, not the decentralisation that would expand possibilities for affirming people’s rights, he concluded.