A dispute involving senior judges with the auditor chief of the Judiciary, a function within the National Council of Justice (CNJ), a body created in 2004, with a view to overseeing the functioning of the Judiciary Power in Brazil, revealed serious frailties, failings and vices of the judicial system in the country.
Judge Eliana Calmon, the auditor chief, found herself questioned before the Supreme Court and the press (sic) by senior judges resisting her attempts to investigate serious charges of corruption, nepotism, dereliction of duty and money laundering against members of the Judiciary, particularly in the higher courts.
In Brazil, judges are civil servants in line with the traditions of a civil code system, similar to what exists in many other countries, such as in continental Europe, China, South Africa and throughout Latin America.
However, in Brazil, judges constitute a true noblesse de robe, the system prevailing in France before the French revolution. To a basic starting salary of about US$ 12,000 per month, judges have added approximately 3 months paid vacation per year and retirement with full salary.
In addition, Brazilian judges are entitled to stipends for housing, for clothing, for travelling, among other benefits not available to the general population, such as bonuses for several basic actions, including the passing of time.
One impact of so many benefits disparate with the reality of the country was to develop in judges a mentality of an aristocratic corps, which has estranged the Judiciary from patterns universally accepted. For instance, senior Brazilian judges have spin doctors to assist them in getting more favorable exposure to the press, including in gossip columns.
Yes, Brazilian judges love to give interviews. When cases have a certain notoriety, many judges of the Supreme Court will be delighted to give their impressions to the press, even if they may have to address the matter. When they do, afterwards, judges do no excuse themselves. They cannot resist sending a spirituous decision to the lay press and often giving informal opinions as if they were lawyers.
As a result, the Brazilian judiciary became highly impopular. The fact that some magistrate associations pursue a trenchant agenda of advancement of corporative interests of the magistrates’ class has not helped its popularity or the credibility of the institution, the lowest of any in the country.
The fact that the Judiciary is overburdened does not help. It is estimated that there are, in January 2012, some 100 million suits pending in Brazil, or about 1 for each adult. The state responds for about 50% of the cases. Some 18 million suits are filed per year. Disputes take on average 10 years to be addressed and complex matters take often longer.
In 2010, 71 thousand cases reached the Supreme Court. No fewer than 41 thousand were distributed to 10 judges, as the president does not receive them. So, the average is of 4.1 thousand suits per Supreme Court judge, per year, which makes about 22.7 per working day. The burden is worse in the lower courts, which explains the fact that many a higher court judge relies entirely on sentences written by clerks on cases they have never read.
In view of the collapse of the country’s Judiciary, the business sector has adopted arbitration for resolution of disputes, both domestically and internationally. However, the vast majority of the population does not yet have access to alternative forms of dispute resolution and must face the hell of Brazilian courts.
The crisis of the Brazilian judiciary is serious and affects the quality of Brazil’s democracy.
Lawyer admitted in Brazil, England and Wales and Portugal. GATT and WTO panelist. Brazilian government ad-hoc representative for the Uruguay Round of the GATT. Post-graduation professor of the law of international trade.